Hari Swarup, J. - (1.) THIS petition is directed against an order of the Deputy Director of Consolidotion remanding the case to the Settlement Officer (Consolidation) for decision. An objection has been taken by the learned counsel, for the petitioner to the maintainability of the second appeal before the Deputy Director of Consolidation in which the order was passed. The facts giving rise to the appeal are as follows:- The Consolidation Officer decided the matter on May 14, 1961 and the appeal was preferred before the Settlement Officer (Consolidation). Against that order a revision was filed before the Deputy Director of Consolidation. Against the order passed in revision a writ petition was filed. The writ petition was allowed and the order of the Deputy Director of Consolidation was quashed on the ground that the revision was not maintainable. According to the view taken by this Court in the Writ Petition a second appeal was maintainable. The special appeal filed against the judgment of the learned Single Judge was also dismissed. The opposite-parties then filed a second appeal before the Deputy Director of Consolidation and prayed for the condonation of delay. The Deputy Director of Consolidation condoned the delay and heard the appeal. Against the order of remand passed in this appeal on October 3, 1969 the present writ petition is directed. The learned counsel for the petitioners relying on a decision reported in Gaurishanker v. Sidh Nath Tewari and another 1968 A.L.J. 933, has urged that the second appeal before the Deputy Director of Consolidation was not maintainable.
(2.) THE learned counsel for the respondent has not been able to contend otherwise. Accordingly I take it that no appeal was maintainable; but, applying the law as laid down by the Full Bench, it must be held that a revision would be maintainable. The order passed by the Deputy Director of Consolidation will thus be deemed to be an order passed by him in exercise of the powers under Section 48 of the U.P. Consolidation of Holdings Act. I am taking this view because the intention of law has throughout been that the Deputy Director of Consolidation was the lest authority in deciding the disputes. The law has never given finality to the order of the Settlement Officer (Consolidation). The respondent must, therefore, be given the right of hearing before the Deputy Director of Consolidation. Accordingly, I treat that the order passed by the Deputy Director of Consolidation was an order passed in revision and refuse to quash it on the ground that it was filed and treated by the Deputy Director of Consolidation as an appeal. The other objection of learned counsel is that it was not a case for remand. There is merit in this contention. The only ground given by the Deputy Director of Consolidation for remanding the case is in paragraph 4 of his judgment; "As regards the merits of the case, in my opinion, the important factor in the case is as to whether the plot in dispute has two portions already defined by a Mend or it is being cultivated in one piece." This could obviously be no ground for remanding the case. The Deputy Director of Consolidation has not considered the matter on merits at all. He could remand the case only if he found that the order passed in appeal by the Deputy Director of Consolidation was liable to be reversed on the ground of its being erroneous. Unless the order is found to be erroneous, the appeal cannot be allowed and the case cannot be remanded. It was incumbent on the Deputy Director of Consolidation to decide the matter himself on the basis of evidence on record. In case he found that the evidence was not sufficient, and it was necessary to get further evidence he could have taken further evidence and decided the matter. In case he thought that it would be better to get a finding of fact on the question which he thought arose in the case he could have remitted the issue to the Settlement Officer (Consolidation) for taking evidence or issuing commission or making spot inspection and recording his finding. He could have then decided the revision taking into consideration the evidence and the finding. In any case, he could not have remanded the case without applying his mind to relevant considerations.
(3.) IN the result, the petition is allowed. The order of the Deputy, Director of Consolidation is quashed and he is directed to decide the revision in accordance with law in the light of the observations made above. The parties will bear their own costs.;