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Abdul Saeed and anr. Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 2706 of 1963
Judge
Reported inAIR1968All428
ActsTenancy Law; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 157; Constitution of India - Article 226
AppellantAbdul Saeed and anr.
RespondentState of U.P. and ors.
Appellant AdvocateV.K. Khanna, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
.....of india - view taken seemed justified on the strength of decisions placed before the consolidation authorities - nevertheless if that view appear erroneous - when the matter is placed before high court - jurisdiction of high court under article 226 can be invoked. - - s the abovementioned decision of this court in 1962 all wr (hc) 363 (supra) and the view of the full bench of the board of revenue in 1958 all wr (rev) 138 (fb). it was contendedthat the consolidation authorities could not be said to have committed an error apparent on the face of the record if they followed the law as declared by this court as well as by the board of revenue. nevertheless, if that view appears clearly erroneous when the matter is placed before this court, the jurisdiction of this court..........of the constitution can be invoked. it is only this court which could, in fact, correct such an error as the consolidation authorities could not correct it even if the error in the view taken had been apparent to them. the authorities may be correct in following an erroneous decision, but thiscourt has the jurisdiction, and, indeed, the duty to rectify the error resulting from the erroneous view which was followed if the error in that view is patent.8. the findings given by the settlement officer were not pure findings of fact. in so far as there was a finding of fact, the only finding was that abdul hamid was not incapable of supervising cultivation. there is no clear finding given that he was physically capable or incapable of cultivating the land. the view taken by the.....
Judgment:

M.H. Beg, J.

1. This is a writ petition against the orders of the ioint Director,the Deputy Director, and the Settlement Officer in proceedings under Sections 9 and 10 of the U. P. Consolidation of Holdings Act (after its amendment in 1958). The petitioners are sons of a man called Abdul Hamid, who is alleged to have let the land in dispute to Abdul Rahman, the father of opposite parties 5 to 9, in 1363 F. It appears that in previous proceedings under Section 202 of the U. P. Z. A. and L. R. Act it was held that Abdul Hamid was not a disabled person, but an appeal had been filed from that decision. During the pendency of that appeal from the order of a Judicial Officer, dated 12-6-1961, the consolidation operations started so that the same question came up for adjudication before the consolidation authorities.

2. The Consolidation Officer had allowed the petitioners' objection under Section 9 of the Act and held them to be sirdars. He held that. Abdul Hamid was a disabled person within the meaning of Section 157 (1) (d) of the U. P. Z. A. & L. R Act which describes the disabled person as follows: 'A person incapable of cultivating by reason of blindness or other physical infirmity'. The evidence relied upon by the Consolidation Officer was oral evidence produced by the petitioners and a certificate of a Civil Surgeon given on 27-9-1943. The Civil Surgeon was not traceable, and, therefore, could not be produced in evidence. The certificate, although proved by other evidence, could not be supported by the statement of the Civil Surgeon for this reason.

In appeal from the order of the Consolidation Officer, the Settlement Officer gave the following finding: 'In view of the ruling of the Board cited above. Sri Abdul Hamid was definitely not a disabled person as defined in Z. A. & L. R. Act. Even Mukhram D W 2 has stated that Sri Abdul Hamid was a lean, thin, and tall man and was a patient of Asthma. He has stated that he never did any cultivation nor any hard work nor was capable of the same Even t aking for granted this fact, none of the witnesses examined by the respondents prove that Sri Abdul Hamid was not in a position to supervise his cultivation. The Settlement Officer having set aside the order of the Consolidation Officer, the petitioners went up in second appeal to the Deputy Director of Consolidation. The Deputy Director of Consolidation rejected the petitioners' second appeal on 30-8-1962 on the ground that the petitioners had not proved that Abdul Hamid was unfit to supervise the tilling of the land by hired labour or servants. This view had been maintained in spite of the revision application of the petitioners which was dismissed by the Joint Director on 2-2-1963.

3. In this Court, the contention on behalf of the petitioners is that the view taken by the consolidation authorities is patently erroneous and contrary to the decision given by a Division Bench of. this Court in Civil Misc. Writ. No. 1706 of 1959 (All), Smt. Reoti v. Board of Revenue, decided on 13-9-1962. The Division Bench had considered and overruled the view taken by Broome, J., in .Jokhan v. Board of Revenue, 1962 All WR (HC) 363, who had approved the view taken by a Full Bench of the Board of Revenue in Abdul Shakoor v. Malkhan, 1958 All. LJ (Rev. Sup.) 131. The Division Bench, on the other hand, had approved the contrary view expressed by Dhavan J, in Durjan v. Consolidation Officer, 1959 R, D. 40. The Division Bench held that the physical infirmity sufficient to entitle a person claiming its benefit, within the meaning of Section 157 of the U. P. Z. A. & L. R. Act, did not exclude a case in which a person although physically infirm may yet be able to supervise cultivation. With great respect, I find myself in complete agreement with the view taken by the Division Bench.

4. It appears to me to be absolutely clear that the words used in Section 157(1) (d) of U. P. Z. A and L. R. Act cannot be so stretched as to require a physical infirmity which disables a person from even supervising cultivation. The idea underlying the provision is that the per-son who is physically infirm must be incapable of cultivating and not incapa-ble of supervising. Cultivation and its supervisions are not identical. Different words are used to express the two ideas. Even if cultivation includes supervision, it necessitates more than mere supervision. Cultivation involves use of physical strength and also attention, and is, therefore, more comprehensive than supervision of it. If a person is so infirm as to be incapable of using his own strength for cultivating land, he would bp entitled to the benefit of the provisions even though he may be physically able to employ the strength of others and to supervise cultivation. Reasons for this view are very fully discussed by the Division Bench with which I concur. I need not, therefore, elaborate the point.

5. An ingenious argument has been advanced on behalf of the opposite parties by Mr. K. C. Saxena who points out that, on the date on which the consolidation authorities had decided the matter, the decision of the Division Bench was not available. What seems to have been placed before the consolidation authorities wa.s the abovementioned decision of this Court in 1962 All WR (HC) 363 (supra) and the view of the Full Bench of the Board of Revenue in 1958 All WR (Rev) 138 (FB). It was contendedthat the consolidation authorities could not be said to have committed an error apparent on the face of the record if they followed the law as declared by this Court as well as by the Board of Revenue. The argument was that the con_ solidation authorities were following the law correctly on the date on which they gave the decision because Division Bench of this Court had not by that time taken the contrary view expressed in the earlier decision of this Court by a learned single Judge in preference to a later decision by another learned single Judge.

6. The petitioners' counsel relied on Syed Yakoob v. Radha Krishnan. AIR 1964 SC 477, where instances of actions which were illegal or improper, so as to be capable of inviting interference under Article 226 of the Constitution, were given. He also relied upon Satya Narayan v. Mallikarjun, AIR 1960 SC 137 where it was held that an error which requires an elaborate process of reasoning, on points on which there may conceivably be of two opinions, cannot be said to be an error apparent on the face of the record. The contention was that if a Full Bench of the Board of Revenue and a learned Judge of this Court could adopt a particular view which appeared correct on the date on which judgments were given by the consolidation authorities, there was no error apparent on the face of the record. It was urged that the consolidation authorities could not predict that a different view would be taken in future by a Division Bench of this Court. It was contended that the inability of the consolidation authorities to anticipate the view of a Division Bench of this Court taken in 1962, which has, unfortunately, not even been reported in any law reports so far. although it was approved for reporting, cannot be considered to be an error apparent on the face of the record.

7. The law in the argument advanced on behalf of the petitioners is that the error is not required to be apparent to the authority which has committed the error or made an order. It may be that the view taken seemed justified on the strength of the decisions placed before the view taken seemed iustified on the strength of the decisions placed before the consolidation authorities. Nevertheless, if that view appears clearly erroneous when the matter is placed before this Court, the jurisdiction of this Court under Article 226 of the Constitution can be invoked. It is only this Court which could, in fact, correct such an error as the Consolidation authorities could not correct it even if the error in the view taken had been apparent to them. The authorities may be correct in following an erroneous decision, but thisCourt has the jurisdiction, and, indeed, the duty to rectify the error resulting from the erroneous view which was followed if the error in that view is patent.

8. The findings given by the Settlement Officer were not pure findings of fact. In so far as there was a finding of fact, the only finding was that Abdul Hamid was not incapable of supervising cultivation. There is no clear finding given that he was physically capable or incapable of cultivating the land. The view taken by the consolidation authorities is that it is enough to give a finding that the person alleged to be disabled was capable of supervising. In my opinion, this view is plainly erroneous for the reasons already mentioned above. But, as the authorities have not had an opportunity of giving the decision from a correct angle; I think this is a fit case in which the decision given by the Joint Director, the Deputy Director of Consolidation, and the Settlement Officer should be quashed, and the Settlement Officer should go into the evidence and redeter-mine the question from a correct point of view. The question to be determined is whether Abdul Hamid was physically capable of carrying on cultivation by the use of his own physical strength and labour also at the time of letting and not whether he was capable of supervising cultivation. Accordingly, I quash the above mentioned orders. The Settlement Officer will now redetermine the case. The certificate of the Civil Surgeon will be treated as admissible evidence. In the circumstances of the case, I make no order as to costs.


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