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Parag Lal Behari Vs. Deputy Director of Consolidation, Gorakhpur and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 315 of 1976
Judge
Reported inAIR1985All34
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Constitution of India - Articles 141 and 226; Uttar Pradesh Consolidation of Holdings Act, 1954 - Sections 5
AppellantParag Lal Behari
RespondentDeputy Director of Consolidation, Gorakhpur and ors.
Appellant AdvocateS.R. Misra, Adv.
Respondent AdvocateSwaraj Prakash, Adv. and ;Standing Counsel
DispositionPetition allowed
Excerpt:
civil - jurisdiction over erroneous interpretation of law - section 11 of code of civil procedure, 1908, section 5 of u.p. consolidation of holdings act, 1954 and articles 141 and 226 of constitution of india - incorrect decision and decision rendered without jurisdiction - wrong decision rendered by the court having jurisdiction - binding between the parties - may be superseded only by appeals. - - consolidation of holdings act as well as the order dated 18th march, 1970, passed by this court in civil misc. it is well settled that a decree or order which has become final, operates as res judicata even though it may proceed upon an erroneous decision of a question of law. hemant kumar 1966crilj805 it was held by the supreme court that a wrong decision by a court having.....n.d. ojha, j. 1. this writ petition was referred to a full bench fry a learned single judge of this court for consideration of the question whether the decision of a division bench of this court in the case of dalip singh v. deputy director of consolidation, moradabad : air1976all433 required reconsideration in view of the fact that the decision of the supreme court in the case of mathura prasad v. dossibai : [1970]3scr830 was not brought to the notice of the learned judges who decided the case of dalip singh (supra) it is thus that this writ petition has come before us.2. the facts and circumstances on account of which the aforesaid point arose for consideration may now be stated.3. smt. murta, the grandmother of the petitioner, who had been appointed guardian of the petitioner under the.....
Judgment:

N.D. Ojha, J.

1. This writ petition was referred to a Full Bench fry a learned Single Judge of this Court for consideration of the question whether the decision of a Division Bench of this Court in the case of Dalip Singh v. Deputy Director of Consolidation, Moradabad : AIR1976All433 required reconsideration in view of the fact that the decision of the Supreme Court in the case of Mathura Prasad v. Dossibai : [1970]3SCR830 was not brought to the notice of the learned Judges who decided the case of Dalip Singh (supra) It is thus that this writ petition has come before us.

2. The facts and circumstances on account of which the aforesaid point arose for consideration may now be stated.

3. Smt. Murta, the grandmother of the petitioner, who had been appointed guardian of the petitioner under the Guardians and Wards Act, 1890, after obtaining the permission of the District Judge executed a sale deed on 27th August, 1963, in respect of certain agricultural plots of which the petitioner was the tenure-holder in favour of Gomati and Bachchan, respondents 3 and 4. These plots were situated in three villages-Khajuri, Harpur alias Dubaria and Sisai, Pargana Hasanpur Maghar, Tehsil Bansgaon, district Gorakhpur. Subsequently in the year 1965 Ram Deo, maternal uncle of the petitioner, was appointed guardian of the petitioner in place of Smt Murta. After obtaining the permission in this behalf from the District Judge Ram Deo instituted a suit in the year 1965 in the Court of the Munsif for cancellation of the sale deed aforesaid. The suit was decreed by the Munsif. Against that decree an appeal was preferred by respondents 3 and 4. During the pendency of that appeal the three villages where the plots sold by Smt. Murta in favour of respondents 3 and 4 were situate were brought under consolidation operations. Three objections were filed by the petitioner inasmuch as the plots sold were situate in three villages. The appeal filed by respondents 3and 4against the decision of the Munsif was abated along with the suit filed by the petitioner under Section 5 of the U. P. Consolidation of Holdings Act.

4. The objection of the petitioner in regard to the plots of village Sisai appears to have been taken up first and was allowed by the Consolidation Officer. An appeal was preferred against that order by respondents 3 and 4 which was allowed by the Settlement Officer (Consolidation). He took the view that till the sale deed was cancelled by the Civil Court the Consolidation A uthorities were bound to give effect to it. A revision was then filed by the petitioner before the Deputy Director of Consolidation but the Deputy Director of Consolidation agreed with the view taken by the Settlement Officer (Consolidation) and dismissed the revision. These two orders were challenged by the petitioner under Article 226 of the Constitution before this Court in Civil Misc. Writ Petition No. 427 of 1969. The writ petition was allowed by this Court on 18th March, 1970 and the two orders mentioned above were quashed. On the finding that the Settlement Officer (Consolidation) was empowered to decide whether the sale deed in question was binding on the petitioner or not the matter was sent back to the Settlement Officer (Consolidation) for deciding the appeal on merits. The Settlement Officer (Consolidation) there after decided the question of binding effect of the sale deed on the petitioner on merits in favour of the petitioner in regard to the entire plots of the three villages which were the subject-matter of the sale deed, by-three separate orders.

5. Aggrieved by the order of the Settlement Officer (Consolidation) respondents 3 and 4 preferred three revisions before the Deputy Director of Consolidation. These revisions were allowed by the Deputy Director of Consolidation on 21st June, 1974, mainly relying on the decision of the Supreme Court in Gorakh Nath Dube v. Narain Singh : [1974]1SCR339 where it was held that if a sale deed was not void but avoidable the Consolidation Authorities had no jurisdiction to go into the question as to whether the sale deed was voidable or not and were bound to give effect to the sale deed till it was cancelled by a competent Court. The view which the Deputy Director of Consolidation took in regard to the nature of the sale deed was that it was voidable. The petitioner thereafter made' an application before the Deputy Director of Consolidation for setting aside the order dated 21st June, 1974, on the ground that the said order was an ex parte one. According to him on the date fixed for hearing in the revisions before the Deputy Director of Consolidation he could not appear on account of his illness with the result that the revisions were decided in his absence. The Deputy Director of Consolidation, however, dismissed the said application by his order dated 23rd July, 1974. It is these two orders dated 21st June, 1974, and 23rd July, 1974, passed by the Deputy Director of Consolidation which are sought to be quashed in the present writ petition.

6. In regard to the order dated 21st June, 1974, counsel for the petitioner submitted that the Deputy Director of Consolidation erroneously took the view that the question about the validity of the sale deed could not be gone into by the consolidation authorities. It was urged that the order abating the appeal filed by respondents 3 and 4 against the decree of the Munsif in the suit for cancellation of the sale deed along with the said suit under Section 5 of the U. P. Consolidation of Holdings Act as well as the order dated 18th March, 1970, passed by this Court in Civil Misc. Writ Petition No. 427 of 1969 holding that the Consolidation authorities had jurisdiction over the matter operated as res judicata and it was not open to the Deputy Director of Consolidation to take a contrary view.

7. For the respondents on the other hand, it was urged that in view of the decision of the Supreme Court in the case of Gorakh Nath Dube : [1974]1SCR339 (supra) the Deputy Director of Consolidation was right in taking the view which he did inasmuch as the sale deed in question was, even on the allegations made by the petitioner, not void but only voidable. Reliance in this connection was also placed by counsel for respondents 3 and 4 on a Full Bench decision of this Court in Ram Nath v. Smt. Munna 1976 All WC 412 where on the basis of the decision of the Supreme Court in the case of Gorakh Nath Dube : [1974]1SCR339 (supra) it was held that a suit for cancellation of a voidable sale deed relating to an agricultural plot pending in the Civil Court will not abate under Section 5(2) of the U. P. Consolidation of Holdings Act. Reliance was also placed by counsel for respondents 3 and 4 on the decision of a Division Bench of this Court in Ram Charitter Misir v. Suraj Teli : AIR1932All108 where it was held that a permission obtained by a certificated guardian by a fraudulent misrepresentation being void is a nullity and a transfer ostensibly made in pursuance of such permission must be considered to be one made without permission and as such it is not void but voidable under Section 30 of the Guardians and Wards Act. Keeping in view the nature of the allegations made by the petitioner in regard to the manner in which the permission was obtained by Smt. Murta from the District Judge and the law laid down in the decisions referred to above relied on by counsel for respondents 3 and 4 there seems to be no doubt that the sale deed in question in the instant case would be voidable and not void and the consolidation authorities were consequently not entitled to adjudicate upon its validity or otherwise.

8. The question which, however, falls for consideration by us is whether the order of the Civil Court abating the appeal arising out of the suit filed by the petitioner together with the suit and the order of this Court in Civil Misc. Writ Petition No. 427 of 1969 holding that the Consolidation Authorities had jurisdiction over the matter would operate as res judicata and preclude respondents 3 and 4 from urging that the consolidation authorities did not have the jurisdiction over the matter in view of the decision of the Supreme Court in the case of Gorakh Nath Dube : [1974]1SCR339 (supra).

9. A Division Bench of this Court in the case of Dalip Singh : AIR1976All433 (supra) even after noticing the decision of the Supreme Court in the case of Gorakh Nath Dube supra) has held : -

'It has been seen that the suit filed by the respondents covered both the sale deeds. The suit was for cancellation. It was abated under Section 5 of the Consolidation of Holdings Act. Section 5 aforesaid applies when a Court finds that in view of Section 49 of the Act, a regular suit is not maintainable because the points for adjudication can be adjudicated upon by the Consolidation Authorities. The necessary effect of this order of abatement was that subject-matter of the suit namely, the validity of the two sale deeds, could be adjudicated upon by the Consolidation Authorities. It is well settled That a decree or order which has become final, operates as res judicata even though it may proceed upon an erroneous decision of a question of law. In view of the doctrine of res judicata, none of the parties could object to the Consolidation Authorities going into the validity of the two sale deeds. They were entitled to adjudicate upon their validity.'

10. Counsel for respondents 3 and 4, however, urged; that the decision of this Court in the case of Dalip Singh (supra) did not lay down the law correctly. It was pointed out that the decision of the Supreme Court in the case of Mathura Prasad : [1970]3SCR830 (supra) was not brought to the notice of the learned Judges who decided the case of Dalip Singh (supra) where it was held that a question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it docs not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise, because if those decisions arc considered as conclusive it will assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court in derogation of the rule declared by the Legislature.

11. It is because of this submission made by counsel for respondents 3 and 4 that this writ petition, as already pointed out above, was referred for decision to a Full Bench.

12. Having heard counsel for the parties and given our anxious consideration we are of opinion that in view of the law laid down by the Supreme Court in the case of Mathura Prasad : [1970]3SCR830 (supra) the order of the Civil Court abating under Section 5 of the U. P. Consolidation of Holdings Act the appeal arising out of the suit filed by the petitioner together with the said suit would not operate as res judicata but the decision of this Court in Writ Petition No. 427 of 1969 would operate as res judicata and respondents 3 and 4 on account of that decision are precluded from asserting that the consolidation authorities did not have jurisdiction over the matter.

13. We now proceed to give our reasons for this conclusion.

14. Even on a plain reading of the decision of the Supreme Court in the case of Mathura Prasad (supra) it is apparent that what has been emphasised in that case is that no Court by its erroneous decision on a pure question of law in regard to its jurisdiction can either refuse to exercise the jurisdiction which according to the rule declared by the legislature vests in it nor can it assume jurisdiction which docs not vest in it. In such a case what is of significance is that the Court does not decide a question of law simplieiter but a question of law on the decision of which depends its jurisdiction to take cognizance of the suit or proceedings. The erroneous decision on such a question of law by such a Court has been held not to operate as res judicata because the Court by its own erroneous decision is either abdicating jurisdiction or clutching it contrary to the rule declared by the legislature in this behalf. In the instant case the decision of the Civil Court referred to above would fall in this category and would, therefore, not operate as res judicata.

15. The decision of this Court in Civil Misc. Writ Petition No. 427 of 1969, however, stands on a different footing. This Court had admittedly exclusive jurisdiction and was competent to entertain the aforesaid writ petition under Article 226 of the Constitution. A pure question of la was to whether the matter in dispute between the parties was cognisable by the Civil Court or the Consolidation Authorities came up for consideration before this Court in the aforesaid writ petition. Upon the decision of this pure question of law one way or the other did not depend the jurisdiction of this Court to entertain the writ petition aforesaid. It was open to respondents 3 and 4 to challenge the correctness of the decision of this Court in the aforesaid writ petition in an appeal before the Supreme Court. They, however, chose not to do so and allowed the said decision to become final. On the other hand, what they did was that in the revisions filed against the orders of the Settlement Officer (Consolidation) they asserted before the Deputy Director of Consolidation and apparently in the teeth of the decision of this Court in the aforesaid writ petition that the matter was not cognizable by die Consolidation Authorities and their assertion was accepted by the Deputy Director of Consolidation. The question which arises for consideration in this writ petition by the same Court which decided Civil Misc. Writ Petition No. 427 of 1969 and between the same parties at a subsequent stage of the same litigation is whether in the circumstances mentioned above it was open to respondents 3 and 4 to make the aforesaid assertion and to the Deputy Director of Consolidation to accept it. On a conspectus of the authorities hereinafter mentioned our answer to this question is in the negative.

16. While dealing with the nature and scope of the jurisdiction of the High Court under Article 226 of the Constitution a Full Bench of this Court in Udai Bhan Singh v. Board of Revenue : AIR1974All202 held (para 3) :-

'An order passed by the High Court under Article 226 of the Constitution, as held by the Supreme Court in State of Uttar Pradesh v. Dr. Vijay Anand Maharaj : [1962]45ITR414(SC) and Ramesh v. Gendalal Motilal : [1966]3SCR198 is one in exercise of its extraordinary original civil jurisdiction. When a writ petition is filed challenging a decision in a suit or proceedings declaring or adjudicating rights or interest in any land, this Court calls Cor the record of the suit or proceeding and if it is found to be without jurisdiction or if there is an error of law apparent on the face of the record, the judgment or order is quashed. This Court after quashing the order cannot substitute its own order or decree for the order or decree impugned but must send back to the Court or authority concerned for deciding the case in accordance with law declared by it. The executable order with regard to the rights of the parties in dispute in such a case is not the order of this Court passed in the Writ Petition but the decision ultimately given by the Court or authority of which the order was in challenge. If, on the other hand, the petition for a writ is dismissed again, it is the order of the Court or authority concerned which was impugned that decides the rights of the parties in dispute. It was held by the Supreme Court in : [1966]3SCR198 (supra) that : 'A petition to the High Court invoking this jurisdiction is a proceeding quite independent of the original controversy. The controversy in the High Court, in proceedings arising under Article 226 ordinarily is whether a decision of or a proceeding before, a Court or Tribunal or Authority, should be allowed to stand or should be quashed, for want of jurisdiction or on account of errors of law apparent on the face of the record.'

It is thus clear that a decision in a writ petition is not a decision about the merits of the rights of the parties in issue in the proceedings giving rise to it. It has further to be noted that a proceeding under Article 226 of the Constitution is not a continuation of the suit or proceeding giving rise to it and there exists a clear distinction between an appeal or revision and a writ petition directed against orders passed therein. It was held by the Supreme Court in Ahmedabad . v. Ramtahel Ramanand : (1972)IILLJ165SC that (para 12);

'Under Article 226 of the Constitution it may in this connection be pointed out that the High Court does not hear an appeal or a revision, that Court is moved to interfere after bringing before itself the record of a case decided by or pending before a Court, a Tribunal or an authority, within its jurisdiction. A decision in the exercise of this extraordinary jurisdiction which finally disposes of the proceedings is a final order, in an original proceeding. An appeal or a revision on the other hand is generally considered to be a continuation of the original suit or proceeding.'

17. In M. S. M. Sharma v. Shree Krishna Sinha : [1961]1SCR96 it was held by the Supreme Court that a decision in a writ petition operates as res judicata in a subsequent writ petition raising the same controversy or question.

18. In Daryao v. State of U. P. : [1962]1SCR574 it was observed by the Supreme Court that the argument that res judicata is a technical rule and as such is irrelevant in dealing with petitions under Article 32 cannot be accepted. The rule of res judicata as indicated in Section 11 of the Civil P. C. has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rules rest is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest, that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.

The binding character of judgments pronounced by courts of competent 'jurisdiction is itself an essential part of the rule of law, and rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. On general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Article 32 of the Constitution. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a Court of competent jurisdiction, there has been a contest between the parties before the Court, a fair opportunity has been given to both of them to prove their case, and at the end the Court has pronounced its judgment or decision. Such a decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution.

19-20. In Phool Chand v. Chandra Shanker : AIR1964SC782 a revision was dismissed by the Board of Revenue U. P. The party aggrieved by that decision applied for review and on its dismissal took the matter to this Court by a writ petition. This Court dismissed the writ petition on merits. No appeal was filed by the aggrieved party against this order before the Supreme Court and it became final. The said party, however, subsequently filed an appeal by special leave before the Supreme Court against the prior order of the Board of Revenue. It was held that the appeal was barred by the principle the principle of res judicial.

21. In State of West Bengal v. Hemant Kumar : 1966CriLJ805 it was held by the Supreme Court that a wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and maybe superseded only by appeals to higher tribunals or other procedure like review which the law provides.

22. It is significant to note that this was also a case where an order passed by the High Court under Article 226 of the Constitution having a bearing on the jurisdiction of a subordinate tribunal, namely, the Special Judge under West Bengal Criminal Law Amendment (Special Courts) Act, 1949, was held to operate as res judicata in subsequent proceedings. In our opinion this decision is much nearer to the facts of the instant case and as such the relevant facts of this ease may be stated in brief.

23. Against Hemant Kumar and two others, who were respondents 1 to 3 before the Supreme Court in the aforesaid case, a charge sheet was filed by the police before the Chief Presidency Magistrate who had jurisdiction to entertain the complaint and proceed with the inquiry and the trial. He took cognizance of the offence and thus became seized of the proceedings. It was at that stage that the government issued the notification under Section 4 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, allotting the case to the Special Judge at Alipur and directed a trial by him. In pursuance of this notification the Chief Presidency Magistrate by his order dated 16th February, 1951, sent the records of the case to the Special Judge. Before the Special Judge took any step in proceedings with the case Hemant Kumar made an application before the High Court under Article 226 of the Constitution impugning the constitutional validity of Section 4(1) of the aforesaid Act on the ground that it was viola live of Article 14 of the Constitution and that for this reason the Special Judge had no jurisdiction to hear the case and that the case had to be disposed of by regular criminal courts. This petition was heard by a Full Bench of the High Court and by judgment dated 4th April, 1952, (reported in : AIR1952Cal644 ) the writ petition was allowed and Section 4(1) of the aforesaid Act was struck down as unconstitutional. The learned Judges held that the special judge had no jurisdiction to try the case and they directed that the accused be held as under trial prisoners pending retrial according to law.

24. The correctness of the law laid down by the High Court in regard to the jurisdiction of the special judge on the ground that Section 4 of the aforesaid Act was unconstitutional came up for consideration before the Supreme Court in Kedar Nath v. State of West Bengal : 1953CriLJ1621 . The law laid down by the High Court in the case of Hemant Kumar : 1966CriLJ805 was disapproved by the Supreme Court.

25. Against an order passed in subsequent proceedings against Hemant Kumar wherein the question raised was whether the Special Judge had jurisdiction to take cognizance of the case or not the matter was taken up to the Supreme Court in appeal by the State of West Bengal and four grounds were principally urged by counsel for the appellant. The second ground urged was :

'(2). The order of the High Court dated April 4,1952 quashing the proceedings before the Special Judge on the ground that Section 4 was unconstitutional as violatiye of Section 14 of the Constitution was wrong since the law was there laid down has been disapproved by this Court in its decision in Kedar Nath Bajoria v. State of West Bengal : 1953CriLJ1621 .'

26. In regard to this contention the Supreme Court held : --

'Before proceeding with these arguments in detail, we can dispose of second contention very shortly. This argument proceeds on a fundamental misconception, as it seeks to equate an incorrect decision with, a decision rendered without jurisdiction. A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and maybe superseded only by appeals to higher tribunals or other procedure like review which the law provides. The learned Judges of the High Court who rendered the decision on 4-4-1952 had ample jurisdiction to decide the ease and the fact that their decision was on the merits erroneous as seen from the later judgment of this Court, does not render it any the less final and binding between the parties before the Court. There is, thus, no substance in this contention. The decision of the High Court dated 4-4-1952 bound the parties and its legal effect remained the same whether the reasons for the decision be sound or not.'

27. It may be noticed that just as the view taken by this Court in Civil Misc. Writ Petition No. 427 of 1969 was disapproved by the Supreme Court in the case of Gorakh Nath Dube : [1974]1SCR339 (supra) the decision of the Calcutta High Court dated 4th April, 1952, in the writ petition filed before it in the case of Hemant Kumar : 1966CriLJ805 (supra) had also been disapproved by the Supreme Court in the case of Kedar Nath (supra) and the decision of this Court as also of the Calcutta High Court which were disapproved by the Supreme Court as mentioned above had a material bearing on the jurisdiction of a subordinate tribunal.

28. Firstly, there is apparently no inconsistency in this decision of the Supreme Court and its decision in the case of Mathura Prasad : [1970]3SCR830 (supra). If the distinction pointed out above is kept in mind, namely, that in the case of Mathura Prasad (supra) the Supreme Court was dealing with an erroneous decision on a question of jurisdiction given by a Court which by its said decision was either refusing to exercise jurisdiction vested in it or assuming jurisdiction not vested in it. It was not dealing with a decision of the High Court under Article 226 of the Constitution regarding jurisdiction of a subordinate court or tribunal.

29. Secondly, even if some inconsistency may be there this Court is, on the facts of the instant case, bound to follow the decision of the Supreme Court in the case of State of West Bengal v. Hemant Kumar : 1966CriLJ805 (supra) the same having been rendered by a Bench of four Hon'ble Judges in preference to the decision in the case of Mathura Prasad (supra) the same having been rendered by a Bench of three Hon'ble Judges. This is so in view of the decision of the Supreme Court in the case of Suite of U. P. v. Ram Chandra : (1977)ILLJ200SC where it was held (at p. 2556) :

'It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a ease, us observed by this Court in Union of India v. K.S. Subramanian (Civil Appeal No. 212 of 1975 decided on July 30, 1976) : (reported in AIR 197(, SC 2433) to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.'

30. In Mattulal v. Radhe Lal : [1975]1SCR127 it was held by the Supreme Court that where there arc contradictory decisions of the Supreme Court the decision of the larger Bench has to be followed even if that decision was rendered earlier in point of time than the decision of the smaller Bench.

31. On the facts of the instantcase the law laid down by the Supreme Court in Satyadhyan v. Smt. Deorajin Debi : [1960]3SCR590 to the following effect is also clearly applicable (para 8):--

'The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the mailer again at a subsequent stage of the same proceedings.'

32. This Court having held in Civil Misc. Writ Petition No. 427 of 1969 that the consolidation authorities had jurisdiction over the matter will not allow any of the parties to reagitate the matter again. The matter could not for the same reason be reagitated even before the Deputy Director of Consolidation. In this connection it may be reiterated that the order passed by this Court in Civil Misc. Writ Petition No. 427 of 1969 was not an interlocutory order but was a final order passed by a competent court against which an appeal could be filed in the Supreme Court but was not filed and the order became final.

33. Sobhag Singh v. Jai Singh : [1968]2SCR848 was a case where the High Court of Rajasthan after quashing the decision of the Board of Revenue in a writ petition filed before it directed the Board of Revenue to decide the case in accordance with law. It was held by the Supreme Court that the decision of the High Court operated as res judicata and could not be reopened before the Board of Revenue or in appeal against its order.

34. Munshi Muzbool Raza v. Hasan Raza : AIR1978SC1398 was a case where Muzbool Raza appellant had filed a suit in the court of Munsif against the respondent for possession over certain agricultural plots. The suit was resisted by the respondent but was decreed by the Munsif. That judgment was confirmed in appeal by the District Judge. The respondent filed a second appeal before this Court. While the second appeal was pending the appellant was directed to take recourse to consolidation authorities in regard to his alleged rights. He exhausted those remedies wherein the ultimate decision was against him. He challenged the decision in those proceedings by filing a writ petition in this Court but the writ petition failed. The second appeal filed by the respondent against the decree passed in favour of the appellant in the suit filed by him was allowed by this Court. Against this decree the appellant filed an appeal by Special Leave in the Supreme Court which was dismissed. It was held by the Supreme Court (para 7) : --

'The other difficulty in the way of the appellant is that he was directed by the High Court to take recourse to Consolidation Authorities in regard to his alleged rights, while the second appeal was pending in the High Court, he exhausted those remedies, challenged the ultimate decision by filing a writ petition in the High Court and even that writ petition failed. He cannot, then, reagitate the same questions once over again in the second appeal. These questions stand finally concluded by the decision recorded in, the writ petition.'

35. The matter can be looked into from another angle also. In East India Commercial Co. v. Collector of Customs : 1983(13)ELT1342(SC) it was held that an administrative Tribunal cannot ignore the law declared by the highest Court in the Suite. Taking into consideration the provisions of Articles 215, 226 and 227 of the Constitution of India, it would be anomalous to suggest that a Tribunal over which the High Court has superintendence can ignore the law declared by that Court and start proceedings in direct violation of it. If a Tribunal can do so, all the subordinate Courts can equally do so, for there is no specific provision, just like in the case of Supreme Court making the law declared by the High Court binding on subordinate Courts. It is implicit in the power of supervision conferred on a superior Tribunal that all the Tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working, otherwise, there would be confusion in the administration of la wand respect for law would irretrievably suffer.

36. Counsel for respondents 3 and 4 brought to our notice certain decisions of the Supreme Court where it was held that the doctrine of 'constructive res judicata is inapplicable to illegal detention and does not bar a writ of habeas corpus on fresh grounds, that a subsequent writ petition on a different' cause of action was not barred and that dismissal of a writ petition in limine without a speaking order will not bar a subsequent writ petition. It was further brought to our notice with reference to the meaning of the term proceeding as contained in Section 141 C.P.C. and certain decided cases that a writ petition under Article 226 of the Constitution was not a proceeding under the Code of Civil Procedure and as such Section 11, IPC in terms will not apply to a writ petition. The principles of law laid down in the cases cited by counsel for respondents 3 and 4 in this behalf are well settled but apparently they have no relevance so far as the facts of the instant case are concerned and consequently we do not consider it necessary to refer to those cases in detail.

37. Counsel for respondents 3 and 4 also brought to our notice the decision of a learned single Judge of this Court in Anant Ram Gupta v. Asstt. Director 1979 Rev. Dec 40 : (AIR 1979 NOC 125). In that case one of the questions involved was about the import of the expression 'possession' used in Clause (a) of Section 18(1) of the U. P. Zamindari Abolition and Land Reforms Act. An earlier writ petition filed by the petitioners in 1968 was allowed by this Court in 1969 and an order passed by the Deputy Director of Consolidation in the revision was quashed and the case was remanded to him for deciding the revision afresh. The Deputy Director of Consolidation decided the revision on 4th December, 1970, and this order was challenged in Writ Petition No. 1948 of 1971. The writ petition remained pending for about seven years and was decided on 23rd August, 1978. During the pendency of the writ petition the Supreme Court in Kailash Rai v. Jai Ram : [1973]3SCR411 interpreted the expression 'possession aforesaid. It was held in the case of Anant Ram Gupta (supra) that it is open to this Court to take into consideration the law declared by the Supreme Court about the import of the expression 'possession', even if the remand order had taken a contrary view. The writ petition was, however, dismissed on the ground that the finding recorded by the Deputy Director of Consolidation that there had been separation among the brothers was a finding of fact and in view of that finding the interpretation of the aforesaid expression 'possession' by the Supreme Court could not help the petitioners. In our view this decision is distinguishable on the facts of the instant case to which the law declared by the Supreme Court in the various eases referred to above particularly in the cases of Phool Chand : AIR1964SC782 , Hemant Kumar : 1966CriLJ805 , Sobhag Singh : [1968]2SCR848 and Muzbool Raza : AIR1978SC1398 (supra) is squarely applicable.

38. In view of the foregoing discussion the impugned order dated 21sl June, 1974, passed by the Deputy Director of Consolidation cannot be sustained and deserves to be quashed.

39. It was urged by counsel for respondents 3 and 4 that in the said order the Deputy Director of Consolidation had also recorded a finding on merits that the sale deed in question was binding on the petitioner. It is true that even after holding that the consolidation authorities had no jurisdiction over the matter the Deputy Director of Consolidation has made an observation that the sale deed in question was binding on the petitioner but that observation is on the face of it just a casual one given in a cursory manner without considering the case of the parties on the basis of the pleas raised by them and evidence produced in support thereof. Indeed what the Deputy Director of Consolidation has in substance said is that since the impugned sale deed had been executed by Smt. Murta after obtaining the permission of the District Judge and since in view of the decision of the Supreme Court in the case of Gorakh Nath Dube : [1974]1SCR339 (supra) the consolidation authorities had no jurisdiction to cancel the said sale deed it was binding on the petitioner. Further, the aforesaid observation has even otherwise no legal sanction. As seen above the Deputy Director of Consolidation specifically held in the aforesaid order that he had no jurisdiction over the matter. After having recorded this finding he should not have made this casual and cursory observation. We are clearly of the opinion that the rights of the parties cannot be said to have been decided by the said observation.

40. In Upendra Nath v. Lall it was held by the Privy Council that a court which declines jurisdiction cannot bind the parties by its reasons for declining jurisdiction.

41. Once the order dated 21st June, 1974, itself is quashed the later order passed by the Deputy Director of Consolidation on 23rd July, 1974, refusing to recall the order dated 21st June, 1974, cannot stand and has to be quashed as a consequential measure so that the rights of the parties are determined by the Deputy Director of Consolidation on merits on the basis of the evidence produced by the parties.

42. In the result the writ petition succeeds and is allowed and the impugned orders dated 21st June, 1974 and 23rd July, 1974, passed by the Deputy Director of Consolidation, Gorakhpur, respondent No. 1, are quashed and he is directed to decide the three revisions filed by respondents 3 and 4 afresh in accordance with law in the light of the observations made above. In the circumstances of the case, however, the parties shall bear their own costs.

V.N. Khare, J.

I agree.

B.L. Yadav, J.

I also agree.


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