K.B. Asthana, J. - (1.) By this petition under Article 226 of the Constitution the Petitioner has impugned certain orders passed by the Consolidation Authorities in purported exercise of their power under the provisions of the U.P. Consolidation of Holdings Act (hereinafter called the Act). In the statement of proposals published under Sec. 19 of the Act the area and the valuation of the Chak which was proposed to be allotted to the Petitioner was published. Apparently the Petitioner had no objection to the entries in the statement of proposals. Some other tenure holders filed objections. The Consolidation Officer while considering the objections of the other tenure holders visited the village and proposed certain modifications. The modifications so proposed by the Consolidation Officer resulted in the change in the total area of land allotted to the Petitioner as compared to the total area of his original plots. It is not disputed before me in this writ petition that the change in the area of land allotted to the Petitioner as a result of the said modification by the Consolidation Officer differed by more than 20 per cent from the area of his original plots. The matter was, therefore, submitted by the Consolidation Officer to the Settlement Officer (Consolidation) for grant of permission by the Director of Consolidation under the proviso to Sec. 15(1)(a) of the Act. The Settlement Officer (Consolidation) referred the matter to the Deputy Director of Consolidation. It appears that before the requisite permission had been obtained from the Director of Consolidation, the Consolidation Officer passed the final order. The Petitioner went up in appeal from the said order of the Consolidation Officer to the Settlement Officer (Consolidation) which was dismissed. The Petitioner then filed a revision under Sec. 48 of the Act against the appellate order. This revision application was filed by the Petitioner some time in January, 1960. It is averred in the affidavit filed by the Petitioner that upto that stage there was no permission of the Director of Consolidation under Sec. 15(1)(a) of the Act on the record of the case. Though in the counter affidavit filed by the opposite parties on behalf of opposite parties 4 to 7 this assertion has been denied, but that denial is not convincing for the simple reason that the Deputy Director of Consolidation in the impugned order passed by him in revision himself has observed that the Consolidation Officer produced the permission before him and that presumably would have been done when the revision was being heard by the Deputy Director of Consolidation. The permission is dated 12.12.1959 and is signed by the Deputy Director of Consolidation. It is again not disputed that the officer as the Deputy Director who heard the revision and one who grant ed permission on 12.12.1959 were not the same. However, on the consideration that the requisite permission under Sec. 15(1)(a) of the Act had been obtained for the modification the Dy. Director dismissed the revision. The Petitioner has now come up to this Court impugning all these proceedings and the orders passed thereon.
(2.) When the petition was heard by me at an earlier stage Sri. G.N. Verma, learned Counsel for the Petitioner, sought to raise a question regarding the validity of the permission dated 12.12.1959 accorded by the Dy. Director of Consolidation, Mathura purported to be under Sec. 15(1)(a) of the Act then it was pointed out by Sri. G.P. Tandon learned Counsel for the opposite parties Nos. 4 to 7, that such a ground had not been raised in the writ petition. As the question raised by Sri Verma for the Petitioner went to the root of the matter and did not require elucidation of any further fact I thought it proper that an application be made for raising this ground. I also called upon Sri. K.B. Garg, learned Junior Standing Counsel, who usually appears for the Consociation authorities in this Court, to be ready to assist the Court on the question raised, as it was of some importance. As the learned Counsel for the Petitioner had not specifically raised the ground in his petition and a formal application had to be made, the hearing had to be adjourned on payment of costs by the Petitioner. The requisite application has been filed and the case has been again put up.
(3.) An objection was raised by the learned junior standing counsel and by Shri G.P. Tandon for the opposite parties 4 to 7 that this ground should not be allowed to be raised for the first time in the writ petition. Sri Garg drew my attention to certain cases decided by this Court that a question which has not been agitated before the subordinate court or the authorities whose orders are subject of challenge in the writ petition, that question should not be allowed to be raised for the first time in a petition Under Article 226 of the Constitution. I do not think the cases, relied upon by the learned Counsel for the opposite parties, lay down any hard and fast rule that a new ground of attack is not permissible in the writ petitions. It depends on facts and circumstances of each case. There is good authority for the proposition that a ground raising a question which goes to the root of the matter as to jurisdiction nr power of an authority, whose acts or orders have been brought up before the High court in a petition under Article 226 of the Constitution can be allowed to be raised if it otherwise: does not require any further enquiry and no prejudice is caused to the opposite parties at the hearing. I had adjourned the case and had warned Mr. K.B. Garg, learned junior standing counsel to be ready to meet the ground. Since then enough time has elapsed and neither of the opposite parties have made any complaint that they have been taken by surprise or that they had not been afforded sufficient time to meet the new ground of attack. Moreover, as it appears to me, it cannot be said that it is a new ground of attack for I find that such a question must have been raised before the Deputy Director of Consolidation when he was hearing the revision, otherwise there would not have been any necessity for an observation by him that the requisite permission under Sec. 15(1)(a) of the Act had been produced. That question may not have been raised in the specific form in which Sri. G.N. Verma, learned Counsel for the Petitioner, has raised before me, but it appears that on behalf of the Petitioner, it must have been argued before the Deputy Director of Consolidation that no permission was granted by the Director of Consolidation Under Sec. 15(1)(a) of the Act. As the permission was for the first time produced before the Deputy Director of Consolidation and presumably at the hearing I cannot blame the Petitioner, if he could not before the Deputy Director of Consolidation argue that the permission itself was invalid not having been granted by the proper authority, for such a ground could only be raised after careful scrutiny of that permission and the examination of the relevant law and the notifications. I agree with the submission of Sri G.N. Verma, for the Petitioner, that the permission having been produced by the Consolidation Authorities at the fag end of the proceedings the Petitioner had no proper opportunity before the Deputy Director of Consolidation to challenge its validity. I think that the reasons given by me above and the circumstances in which the so called new ground has been raised by Sri G.N. Verma, counsel for the Petitioner, are enough justification to allow the ground to be raised and entertained particularly when the costs paid have been accepted by the learned Counsel for the opposite parties.;