D.N. Jha, J. - (1.) Kanhaiya Bux and others have filed this petition under Article 226 of the Constitution praying for ouashing of the order passed by the Deputy Director of Consolidation dated 25-7-1970 contained in Annexure 3.
(2.) Briefly stated the facts are that between the petitioners and Smt. Abhairaji, who was opposite party No. 2 but died during the pendency of the writ petition, the dispute related to plots Nos. 404 and 58 situate in village Jamuna, pergana Pachhimrath, Tahsil Bikapur, District Faizabad. In the basic year Smt. Abhairaji was recorded over the disputed plots. On publication of the records under the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) the petitioners filed objections. They asserted that Smt. Abhairaji had only half share in the disputed plots and she having executed a sale deed in favour of the petitioners in 1928 the petitioners had become the sole grove holders and the name of Smt. Abhairaji deserved to be expunged. In the alternative the petitioners had also set up a case on the basis of possession and asserted that they had perfected their rights by virtue of adverse possession. The claim was resisted by Smt. Abhairaji. In the circumstances the dispute that had arisen between the parties was referred to the Consolidation Officer, who, vide his order dated 25-9-1962 allowed the objections preferred by the petitioners. Smt. Abhairaji preferred an appeal before the Settlement Officer (Consolidation which was allowed on 18-1-1963. The petitioners then preferred a second appeal and it was allowed by the Deputy Director of Consolidation on 18-4-1963. This order is Annexure 2 to the Writ petition. Smt. Abhairaji then went up in revision before the Director of Consolidation but the same was rejected on 29-7-1963. Smt. Abhairaji feeling aggrieved by the order passed by the Director of Consolidation preferred a writ petition in this court which was numbered as 677 of 1963 and it was finally allowed by a Division Bench on 4-10-1966. The case under orders of this Court was remanded to the Deputy Director of Consolidation to be decided in accordance with the old Section 48. The matter on remand by this court came up for consideration before the Deputy Director of consolidation who after hearing the parties allowed the revision vide order dated 25-7-1970. This order is Annexure 3 to the writ petition. It is in these circumstances that the present writ petition has been directed by the petitioners impugning the order dated 25-7-1970 passed by the Deputy Director of Consolidation in exercise of revisional jurisdiction on the ground that Act No. 18 of 1968 had come into force in accordance with which an explanation in S. 48 of the Act had been added which clarified that the Deputy Director of Consolidation was not subordinate to the Director of Consolidation. It is, therefore, asserted that the Director of Consolidation had no revisional jurisdiction to upset the order passed by the Deputy Director of Consolidation on 18-4-1963. The petition has been resisted on behalf of opposite party Ram Kumar whose name has been substituted in place of Smt. Abhairaji as she died during the pendency of the writ petition. It is asserted that the order passed by the Deputy Director of Consolidation is legal and the contentions of the petitioners are devoid of substance and call for no interference by this Court.
(3.) I have heard learned counsel for the parties. Learned counsel for the petitioners in the first instance contended that the order dated 25-7-1970 passed by the Deputy Director of Consolidation was wholly without jurisdiction in view of decisions of this court. It may be mentioned that the view expressed by a Full Bench of this court in Dr. Prem Chandra v. Deputy Director of Consolidation (1966 All LJ 641) was reviewed by a larger Bench of this Court in Gauri Shanker v. Sidh Nath Tewari (1968 RD 426) . The majority view was : "The word 'lay' in the proviso to S. 47 of the U.P. Consolidation of Holdings (Amendment) Act, 1963 means 'for which provision was made. 'The proviso could apply to all second appeals and revisions in cases where the lis had commenced prior to March 8, 1963 and in which the unamended Act in force on the date of the commencement of this lis had provided for a second appeal or a revision. In all such cases if the second appeal had not been instituted till March 7, 1963, it could not be instituted thereafter because the right of second appeal stood repealed on March 8, 1963. Only a revision could be instituted on or after March 8, 1963 in accordance with the amended S. 48." When writ Petition No. 677 of 1963 filed by Smt. Abhairaji was decided by a Division Bench of this Court the view that prevailed was that which was laid down by the Full Bench in Dr. Prem Chandra's (supra). The view expressed subsequently in Gauri Shanker's case was not before the Division Bench. The fact remains that the writ petition filed by Smt. Abhairaji was allowed and the matter was sent back to the Deputy Director Consolidation to dispose of the revision in view of S. 48 of the Act as amended by U.P. Act No. 8 of 1963. The position, however, changed by a subsequent amendment brought about in the principal Act by Act No. 18 of 1963. An explanation was added with retrospective effect changing the position. Under the explanation the Deputy Director of Consolidation was not an officer subordinate to the Director of Consolidation. With this retrospective change in the law the declaration of the unamended law, it is clear, would no longer hold the field. A similar situation had arisen in the case of Ram Niranjan Singh v. Ram Awadh Singh (1973 RD (HC) 446) . The instant case, so far as the legal aspect is concerned, is identical. A Bench of this Court held : "Till S. 48 was amended by U.P. Act No. 18 of 1968 the construction placed upon that provision was that the Deputy Director of Consolidation was an authority subordinate to the Director within the meaning of S. 48 (1). The Explanation retrospectively changed that position. Under the explanation the Deputy Director of Consolidation was not an official subordinate to the Director. With this retrospective change in the law the declaration of the unamended law would no longer hold of the field. In this view the Director had no jurisdiction to entertain or to decide the revision on merits." The contention of learned counsel for the petitioners, therefore, is correct and by no authority of law it can be said that the order passed by the Deputy Director of Consolidation dated 25-7-1970 was passed in exercise of jurisdiction vested in the Deputy Director of Consolidation. The order, therefore, impugned in the writ petition cannot be sustained and deserves to be quashed.;