1. In view of theconflict in two Division Bench decisions of this Court the following question has been referred to this Full Bench:--
'Whether after the record has been called for by the Deputy Director of Consolidation under Section 48 of the U. P. Consolidation of Holdings Act. it is open to him to dismiss the revision on the ground that a necessary party has not been impleaded in the memorandum of revision or he should examine the record and pass such an order which will advance justice after hearing the person who has not been impleaded ?'
2. In Abdul Junaid v. Dy. Director of Consolidation, 1972 All LJ 435 it was observed:--
'Section 48 does not confer any right on a party to file an application in revision: It confers a power on the specifiedauthority for the sake of keeping the inferior authorities within bounds. For that purpose he may call for the record of an inferior authority and examine it and Pass an appropriate order. Having regard to the object underlying Section 48 it appears to us that once the record has been called for by the specified authority, he should not ordinarily refuse to examine the record and to check whether the inferior authority has gone wrong. So long as the record has not been called for, a person who makes an application under Section 48 may be said to be an actor on the scene. But when the record has been called for it appears to us that he ceased to be an actor on the scene. The specified authority who has called for the record becomes the actor on the scene. Accordingly he should examine the record and pass such an order which will advance justice.'
3. However, in Kr. Sarjeet Singh v. Deputy Director of Consolidation, U. P., Lucknow, 1966 All WR (HC) 138 it was held that the defect of not impleading the necessary parties was fatal and the Deputy Director was not bound to implead all the necessary parties.
4. Section 48 of the U. P. Consolidation of Holdings Act is similar to Section 435 of the old Code of Criminal Procedure. It is not unusual for the High High Court to exercise the revisional jurisdiction while hearing an appeal by a co-accused and to acquit the other accused similarly placed even though he has not preferred any appeal or revision if the appeal is being allowed. The revisional jurisdiction is in such cases invariably exercised after the period within which revisions are ordinarily entertained. Reference to this aspect has been made to lay emphasis upon the wording of Section 48 and of similar provisions in other enactments and to indicate that if the contrary view is taken gross injustice can be done to aggrieved parties who may not have been in a position to approach the courts of law.
5. References by the subordinate authorities are covered by Sub-section (3) of Section 48 and as such the references are by virtue of Sub-section (2) heard by the Director of Consolidation as a revision under Sub-section (1) thereof. Sub-section (1) of Section 48 of the Consolidation of Holdings Act runs as below:--
'The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings and may, after allowing the parties concerned an opportunity of being heard,make such order in the case or proceedings as he thinks fit.'
6. It shall be noticed that the exercise or non-exercise of the revisional jurisdiction depends solely upon the Director of Consolidation. He can exercise this power suo motu on information received from others or on an application made by an aggrieved party. Limitation has been prescribed under Rule 111 of the U. P. Consolidation of Holdings Rules for an application in revision made by a party and not for the suo motu exercise of re-visional jurisdiction. Consequently, even if a revision application has been made beyond the prescribed period of limitation the Director of Consolidation is not debarred from exercising such jurisdiction suo motu which would generally be on information given by others. The information given by the subordinate authorities is on a reference made under Sub-section (3). In other words, therefore, the Director of Consolidation still has the jurisdiction to exercise the revisional jurisdiction even though the application made by the parties is barred by limitation or is defective.
7. Section 48 gives power to the Director of Consolidation to call for and examine the record and thereafter after allowing the parties concerned an opportunity of being heard to make such order as he may deem fit. It is discretionary with the Director of Consolidation to call for the record and to examine it, but the discretion has to be exercised on judicial principles. Consequently, where on perusal of certain material the Director of Consolidation decides to call for the record he cannot ordinarily form a different opinion on being informed that all the necessary parties have not been impleaded or that the application was made beyond time. We can, therefore, say that examination of the record should follow the summoning thereof and if on examination of the record it appears necessary to exercise the revisional jurisdiction hearing has to be given to the parties. Where the Director of Consolidation exercises the jurisdiction suo motu no party has the right to make submissions before him at the first instance, but if the Director of Consolidation intends to interfere with the order he must give a reasonable opportunity of hearing to the persons concerned. In this view of the matter it can be laid down as a safe guiding principle that once the record has been called for it should be examined by the Director of Consolidation to form an opinion whether it is a fit case for the exercise of the revisional jurisdiction, This opinion he shall have to form irrespective of whether the application moved by the party was within time or all the necessary parties have not been impleaded or the application is defective. However, where the application is withintime and is not at all defective, the party can say that he should be given a hearing before the Director of Consolidation decides not to exercise the revisional jurisdiction. This is the main difference between the exercise of revisional jurisdiction at the instance of a party and the suo motu exercise of such jurisdiction.
8. When the matter is considered from this angle, it cannot rightly be said that there exists a major conflict in the two Division Bench decisions. In 1966 All WR (HC) 138 (Supra) it was observed that the Court was not bound to implead the necessary parties. This would show that in case the Deputy Director of Consolidation considered it proper to exercise the revisional jurisdiction he can implead the necessary parties and after hearing them also pass a proper order.
9. Certain observations made in the Full Bench case of Om Prakash v. Moti Lal, AIR 1958 All 409 support the above view. By virtue of the amendment to Section 25 of the Provincial Small Causes Court Act revisions lay to the Dist. Court and not to the High Court. The question arose whether revisions already instituted before the commencement of the Amending Act were to be returned to the District Court for hearing or could be entertained by the High Court. While considering the effect of Clause (b) of Section 6 of the U. P. General Clauses Act V. Bhargava and M.L. Chaturvedi. JJ., observed:--
'..... the consequence of the applicability of the provisions of Section 6(b) of the U. P. General Clauses Act,therefore, is that the High Court havingvalidly called for the record and its ordernot being affected by the subsequent Act,it continues to have jurisdiction to passfurther orders in pursuance of that validAct and, consequently to pass such orderwith respect to the case as it may thinkfit.'
10. Stress was thus laid upon the exercise of jurisdiction by calling for the record and then giving power to the High Court to Pass such order as it may think fit. Consequently, where the Director of Consolidation calls for the record under Section 48 of the U. P. Consolidation of Holdings Act. he has the jurisdiction to examine the record and pass suitable orders after giving a hearing to the parties concerned. Once the record has been summoned the Director of Consolidation should examine the record and decide on merits whether the case is a fit one for interference.
11. Our attention was drawn to a Division Bench case of Ram Nath v. Deputy Director, 1971 All LJ 24. That was a case where the records had not been called for. In fact, Satish Chandra, J., himself distinguished this decision from Abdul Junaid v. Deputy Director, 1972All LJ 435 (Supra) in Kanahi v. rOOP Ram. 1972 All LJ 1047.
12. While considering the scope of Section 17 of the Arbitration Act their Lordships of the Supreme Court observed in Madan Lal v. Sunder Lal, AIR 1967 SC 1233 that assuming that the Court had power to set aside the award suo motu, that power could not be exercised to set aside an award after the limitation for making an application by a party had expired. Section 17 of the Arbitration Act has been worded generally. It runs as below:--
'Where the Court sees no cause to remit the award pr any of the matters referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow and no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with the award.'
13. Section 17 of the Arbitration Act clearly provides that where no application for setting aside the award has been made within the period of limitation, the Court shall proceed to pronounce judgment according to the award. Consequently, if the Court decides to exercise this power suo motu it must be exercised within the prescribed period of limitation and not thereafter simply because on the expiry of the period the court has to pronounce judgment according to the award. Section 48 of the U. P. Consolidation of Holdings Act does not place any such restriction in the exercise of the suo motu jurisdiction.
14. Our attention was also drawn to certain observations in D.N. Roy v. State of Bihar. AIR 1971 SC 1045. It was observed that where suo motu jurisdiction is exercised not only should this fact be intimated but also the grounds on which it was proposed to exercise such power. The case of M/s. D.N. Roy (supra) was one under the Mines and Minerals (Regulation and Development) Act, 1957. A mining lease was granted to M/s. D.N. Roy and S.K. Banerjee and the application of one Nankhu Singh for the grant of such a lease was rejected by the State Government. This order was revisable by the Central Government under Section 30 of the aforesaid Act which reads:--
'30. Power of Revision of Central Government.-- The Central Government may, of its own motion or on application made within the prescribed time by an aggrieved party, revise any order made bya State Government or other authority in exercise of the powers conferred on it by or under this Act.'
Nankhu Singh filed a revision before the Central Government against the order of the State Government. The revision was rejected on September 30, 1964, as being time barred. By a subsequent order dated November 5, 1964, the Central Govt. however, set aside the order of the State Govt. granting mining lease to M/s. D.N. Roy and S.K. Banerjee and directed the State Government to throw open the area again for regrant. M/s, D.N. Roy and S.K. Banerjee unsuccessfully challenged the aforesaid order in a writ petition before the High Court and thereafter they took up the matter to the Supreme Court after obtaining certificate of fitness from the High Court. It was urged before the Supreme Court that the order dated November 5, 1964, passed by the Central Government was bad as it had no power to review its earlier order dated September 30, 1964. For the respondent the order of the Central Government was defended on the ground that it had suo motu power under Section 30 aforesaid to revise the order of the State Government.
15. It would thus be seen that the peculiar facts of the case of D.N. Roy AIR 1971 SC 1045 were that a revision filed by the aggrieved party against the order of the State Government was rejected and the order passed by the Central Government subsequently was sought to be justified on the ground that even though the Central Government may not have a power to review its earlier order it could still revise the order of the State Government under its suo motu power conferred by Section 30. It was in this context that the observations referred to above were made.
16. In our opinioni the observations made above can be applied to proceedings under Section 48 of the U. P. Consolidation of Holdings Act only when the Dy. Director of Consolidation rejects an application in revision at the initial stage on the ground that either it was barred by time or suffered from such other defect which rendered it liable to be reiected and yet chooses to exercise his suo motu power. The observations will not apply where he does not reject the application in revision at the initial stage but issues notice on it and calls for the record of the subordinate authority but on the date of final hearing it transpires that the application in revision suffers from any such defect as pointed out above. At that stage if after issuing notice to such other person who may be likely to be affected by his order he decides the case on merits it cannot be said that any person has been taken by surprise by the exercise of power under Section 48 even though suo motu.In such, a case even if he does not pointedly bring it to the notice of the parties that he proposes to exercise his suo motu power nor does he in his order speak about it, the order will not be vitiated for it is settled law that if power to act is there, the action will not be invalid simply because the relevant provision of law conferring power is not quoted. Even in the case of M/s. D.N. Roy (Supra) it was observed:--
'We agree that if the exercise of a power can be traced to an existing power even though that power was not purported to have been exercised, under certain circumstances, the exercise of power can he upheld on the strength of an undisclosed but undoubted power,'
17. In view of the above observations, our answer to the question referred to this Full Bench is:--
After the record has been called for by the Deputy Director of Consolidation under Section 48 of the U. P. Consolidation of Holdings Act he should examine the record to decide whether it was a fit case for exercise of the revisional jurisdiction suo motu. Such opinion shall have to be formed even where the application in revision moved by a party is defective having been made beyond the prescribed period of limitation or all the necessary parties have not been impleaded.
If the Deputy Director of Consolidation finds that the case requires further hearing he shall give notice to all the necessary parties irrespective of whether they were or were not impleaded in the application and after giving them reasonable opportunity of hearing pass such orders as he thinks fit. Where the application in revision is not defective and is maintainable the exercise of revisional jurisdiction shall be at the instance of the Parties and not suo motu.