Lakshmi Prasad, J. - (1.)This is a petition under Art. 226 of the Constitution. Petitioner No. 1 and his brother Nankau husband of petitioner No. 2 preferred an objection under Sec. 9 of the U.P. Consolidation of Holdings Act in respect of the disputed khatas. The Consolidation Officer dismissed their objection. Thereupon each of them filed an appeal from the order of the Consolidation Officer. Nankau died during the pendency of the appeal and was substituted by petitioner No. 2. These appeals were allowed by the Settlement Officer, Consolidation. Aggrieved by the order passed by the Settlement Officer, Consolidation in appeal, opposite party No. 4 went in revision. The Deputy Director who heard the revision, allowed it and restored the order of the Consolidation Officer. It is in these circumstances that the present petition is filed for the quashing of the order passed by the Deputy Director in revision, a true copy of which is annexure 3.
(2.)The petition is opposed by opposite party No. 4. I have heard learned counsel for the parties. The statement in the petition that notices in CH Form No. 5-Ka under rule 25-Kha were issued on Jan. 30, 1963, is no doubt controverted in the counter affidavit, but the petitioners have filed a notice which is annexure 1. It is in CH Form No. 5-Ka under rule 25-Kha of the Consolidation of Holdings Rules and is dated Jan. 30, 1963, i.e. prior to the commencement of the U.P. Act VIII of 1963. That being so, the contention of the learned counsel for the petitioners that the case arising out of the objections filed by the petitioners was to be governed by the provisions of the unamended Act, must be accepted. The argument raised is that if opposite party No. 4 felt aggrieved by the appellate order passed by the Settlement Officer. Consolidation, her remedy was to file a second appeal which, as required by Sec. 11 (2) of the unamended Act, had to be filed within 21 days of the date of the order under appeal, and such an appeal was to be disposed of either by the District Deputy Director of Consolidation or by such other Deputy Director of Consolidation, as may have been authorised in that behalf by the Director of Consolidation. What happened in the instant cast is that opposite party No. 4 filed a revision and the same has been disposed of by a Deputy Director. It is thus urged on behalf of the petitioners that the impugned order being entirely without jurisdiction, has got to be quashed. The contention raised on behalf of opposite party No. 4 is that having regard to the principle laid down by the Supreme Court in the case of Lekhraj Sathramdas Lalvani Vs. N.M. Shah, Dy. Custodian-cum-Managing Officer, Bombay and others, A.I.R. 1966 S.C. 334 , the impugned order need not be quashed, even though it may be that the remedy of opposite party No. 4 was by way of a second appeal and not by way of a revision, since the authority which passed the impugned order was competent to dispose of the second appeal. The answer to that contention is that the Deputy Director who passed the impugned order, did not possess jurisdiction to dispose of a second appeal, in so far as he was not the District Deputy Director, and had not been authorised by the Director of Consolidation to hear second appeals. It is further shown by the petitioners counsel that the particular officer who passed the impugned order was appointed as a Deputy Director by notification No. 297/II-A-225-61 dated Aug. 21, 1963 published in the U.P. Gazette dated Oct. 12, 1963 part 1 page 1871. It is thus contended that since his appointment itself came to be made long after the amended Act came into force, there was obviously no occasion for the Director of Consolidation to authorise him as required by Sec. 11(2) of the unamended Act. The contention is not without substance. At any rate, it was for the opposite party to show as to how it was possible to hold that the particular officer, who passed the impugned order was competent to hear second appeals in the absence of there being anything on the record to show that he had been authorised in that behalf by the Director of Consolidation, required by Sec. 11(2) of the unamended Act. It thus follows that the principle laid down in the above cited Supreme Court case cannot be invoked in favour of opposite party No. 4 in the instant case. That being so, the impugned order which is without jurisdiction, must be quashed.
(3.)At this stage learned counsel for opposite party No. 4 says that there is another aspect of the matter which may be considered. He says that it is not known if the chaks have been confirmed in accordance with the order passed by the Settlement Officer, Consolidation or in accordance with the order passed by the Consolidation Officer, which has been restored by the impugned order and in case they have been confirmed in accordance with the impugned order, then the writ petition must be taken to have become infructuous. I find from the allegations in the affidavit and the counter affidavit that there is a controversy between the parties in so far as the petitioners maintain that chaks have been confirmed in accordance with the order of the Settlement Officer, Consolidation and possession too has been delivered accordingly; whereas opposite party No. 4 maintains that chaks have been confirmed in accordance with the order of the Consolidation Officer and possession has been delivered accordingly. It is not necessary to enter into that controversy on the question of fact, because I am of opinion that in either case it is not possible to maintain that the writ petition has become infructuous.