Sheo Nand
& Ors C Vs. The Deputy Director of Consolidation Allahabad & Ors [2000]
INSC 38 (3 February
2000)
Y.K.Sabharwal,
R.C.Lahoti
D E R S.Saghir
Ahmad, J.
The
appellants, who had claimed Sirdari rights by adverse possession over different
plots in three different villages, were allowed that right only in respect of
one plot situated in village Jethupur and their claim in respect of other plots
was dismissed by the Deputy Director of Consolidation at the revisional stage
under Section 48 of the U.P. Consolidation of Holdings Act, 1953 (for short,
`the Act') on a consideration of oral & documentary evidence. The Deputy
Director, who carefully scrutinised the Revenue Records, filed by the parties,
found many of the entries forged and fictitious; many other entries were found
to have been made in the Revenue Records without complying with the mandatory
requirements set out in the U.P. Land Records Manual. He ultimately came to the conclusion
that since the recorded tenure-holder, namely, Jethu @ Madhoo (respondent
No.12) was not available, having died a civil death, his property would vest in
the Gram Sabha. The Deputy Director had also negatived the claim of Smt. Ganeshia,
alleged sister of Jethu who had also laid claim over the plots belonging to Jethu
on the ground that Jethu who was unmarried and consequently had no issue, was
not heard of for more than 10 years and had died a civil death and, therefore,
the plots which belonged to him would come down to her by inheritance and she
was entitled to be recorded as Sirdar of all those plots. Her claim has been negatived
on account of the finding that she was not the real sister of Jethu. Learned
counsel for the appellants has raised two contentions. The first contention is
that the Gaon Sabha had not filed any objections under Section 9 of the Act
and, therefore, it could not be given the plots which belonged to Jethu and the
appellants having been in possession over the plots since long had acquired Sirdari
rights by adverse possession and were, therefore, entitled to be recorded as
such during consolidation proceedings.
This
claim was negatived by the High Court on the basis of the provisions contained
in Section 11-C which were introduced in the Act by U.P. Act No.XXXV of 1974.
This Section provides as under:- "11-C. In the course of hearing of an
objection under Section 9-A or an appeal under Section 11, or in proceedings
under Section 48, the Consolidation Officer, the Settlement Officer
(Consolidation) or the Director of Consolidation, as the case may be, may
direct that any land which vests in the State Government of the Gaon Sabha or
any other local body or authority may be recorded in its name, even though no
objection, appeal or revision has been filed by such Government, Gaon Sabha,
body or authority." This Section casts a duty on the Consolidation
Officer, the Settlement Officer (Consolidation) and the Deputy Director to
record the property in the name of the Gaon Sabha or the State Government or
any other local body or authority if, during the course of the consolidation
proceedings, they notice that the property really belonged to any of them
notwithstanding that they had not filed any objection, appeal or revision under
the Act. This is the statutory duty of the authorities functioning under the
Act and they cannot act otherwise. If, therefore, the Deputy Director of
Consolidation, during the course of the hearing of revision, came to the
conclusion that the claim of the appellants was not correct or that the
property which originally belonged to Jethu could not be given to his sister, Smt.
Ganeshia, who, as a matter of fact, was found to be not his sister, the
property had to be recorded in the name of the Gaon Sabha in whom it would vest
in the absence of any lawful claimant. It was next contended by the learned
counsel for the appellants that the Deputy Director had disposed of the
revision prior to the introduction of Section 11-C in the principal Act and,
therefore, the plots in question could not be recorded in the name of Gaon Sabha
unless those plots were claimed by the Gaon Sabha to have vested in them and
objections to that effect were filed under Section 9 of the Act. It is
contended that the Deputy Director, in the absence of any statutory provision,
was not justified in recording a finding that the property belonging to Jethu
would vest in the Gaon Sabha. This contention is also without any substance.
The Deputy Director of Consolidation on a consideration of the oral and
documentary evidence on record had come to the conclusion that Jethu who was
not heard of for more than 7 years and had consequently died a civil death, had
not left any heir who could be recorded as tenure-holders of those plots in his
place. The property would, therefore, vest in the Gaon Sabha by Escheat. The
decision of the Deputy Director was challenged before the High Court and during
the pendency of the Writ Petition, the provisions of Section 11-C were
introduced in the principal Act. Consequently, it was the duty of the High
Court to give effect to those provisions at the time of the final decision of
the Writ Petition. As pointed out above, it is the statutory duty of all the
authorities functioning under the Act to give effect to the provisions of
Section 11-C of the Act and to record the property as having vested in the Gaon
Sabha even if no claim was laid by the Gaon Sabha nor was any petition filed by
the Gaon Sabha under the Act.
Even
though the provisions of Section 11-C were not available to the Deputy Director
at the time of the decision of the revision filed by the appellants before him,
his order that the property should be recorded in the name of the Gaon Sabha
could be sustained on the basis of the provisions of Section 11-C at the time
of hearing of the writ petition and the High Court was, therefore, justified in
upholding his order. There is, thus, no error in the judgment of the High
Court. It was next contended that Section 11-C would apply to properties which
were the properties of the Gaon Sabha from the very inception and over which
the name of somebody else was recorded. It is contended that if during the
course of the consolidation proceedings, it is noticed by the Consolidation
Authorities that the property in question, which was recorded in the name of a
tenure-holder, did, in fact, belong to the Gaon Sabha, the entry would be
deleted and the property recorded in the name of the Gaon Sabha,
notwithstanding that Gaon Sabha may not have filed any claim or objection in
respect of that property. But where the property belongs to a tenure-holder and
is sought to be given to the Gaon Sabha on the principle of Escheat, namely,
where it is found by the Consolidation Authorities that the tenure-holder, who
was dead, had not left any heir who could be recorded as tenure-holder in place
of that person, the provisions of Section 11-C would not be applicable and in
that situation the Gaon Sabha, who had not laid any claim over that property,
would not be given the benefit of Section 11-C.
The
contention is not correct. Where on a determination of the rights of the claimants
before the Consolidation Authorities it is found that none of the claimants
could be held to be the tenure-holder of the property in question which,
admittedly, belonged to a third person who was not heard of for more than 7
years and was, therefore, treated as having died a civil death or who, in fact,
was dead without leaving any heir, the property would vest in the Gaon Sabha.
This is the principle of Escheat. "Escheat" literally means "to
revert to the State". This event takes place in default of heirs or
devisees. Under the old feudal system, if the person to whom the property was
let out or who was in possession of that property, had died intestate or
without leaving any heir, the property would revert to the landlord or Zamindar,
but if there was no landlord or intermediary, the property would vest in the
State or, during the British days, in the Crown (King). This principle was also
judicially laid down in A.G. of Ontario v. Mercer 8 Appeal Cases 767 as also in
St. Catherine's Co. v. The Queen 14 Appeal Cases 46.
This was followed and applied in A.G. for Quebec v. A.G. for Canada [1921] 1 A.C. 401. In Rex v.
Attorney-General of British Columbia [1924] Appeal Cases 213 (PC), it was
observed as under : "Except for the difference between a right to lands,
the title to which is ultimately in the Crown, and a right to personality,
which is complete in a private person if there be a private person entitled,
the principle on which bona vacantia and escheat fall to Crown is the same,
that is, that there being no private persons entitled, the Crown takes."
We may point out that property vesting in the State by the principle of Escheat
is not new and should not surprise the counsel for the appellants. Under the
Act of 1853, made by the British Parliament [An Act to provide for the
Government of India (1853), Statute 16 and 17 Victoria, C.95, S.27.], it was
specifically provided as under : "All real and personal estate within the
said territories escheating or lapsing for want of an heir or successor and all
property within the said territories devolving, as bona vacantia for want of a
rightful owner, shall (as part of the revenues of India) belong to the East
India Company in trust for Her Majesty for the service of the Government of
India." The above provision thus dealt with two situations, namely, (i)
where there was no heir or successor; and (ii) where there was even no owner of
the property. The first of the two situations was described in terms of
"Escheat or lapse" and the second in terms of "bona vacantia".
This provision was retained in Section 54 of the Government of India Act, 1858.
The successor Act, namely, the Government of India Act, 1915, provided in
Section 20(3)(iii) that the revenues of India received for His Majesty would
include all movable or immovable property in British India escheating or
lapsing for want of an heir or successor, and all property in British India
devolving as bona vacantia for want of a rightful owner. Thus, the dichotomy
between Escheat or lapse and bona vacantia was retained in this Act. A similar
provision was contained in Section 174 of the Governent of India Act, 1935,
which provided, inter alia, as under :
"Subject
as hereinafter provided any property in India accruing to His Majesty by escheat or lapse or as bona vacantia for
want of a rightful owner shall, if it is property situate in a Province, vest
in His Majesty." Thus, in this Act also, it was provided that the property
would vest by escheat or lapse or as bona vacantia. Coming now to the
Constitution of India, we find a similar provision contained in Article 296
which provides as under : "296.
Subject
as hereinafter provided, any property in the territory of India which, if this
Constitution had not come into operation, would have accrued to His Majesty or,
as the case may be, to the Ruler of an Indian State by escheat or lapse, or as
bona vacantia for want of a rightful owner, shall, if it is property situate in
a State, vest in such State, and shall, in any other case, vest in the
Union." Legislative competence to enact Legislation as to Escheat is
relatable to the Entries 35 & 44 in the State List and Entry 32 in the
Union List set out in the Seventh Schedule to the Constitution. This Court in
Bombay Dyeing & Manufacturing Co. Ltd. vs. State of Bombay, 1958 SCR 1122 =
AIR 1958 SC 328, as also in Superintendent & Legal Remembrancer State of
West Bengal vs. Corporation of Calcutta, 1967 (2) SCR 170 = AIR 1967 SC 997,
has already upheld the property coming to State by escheat. Surprisingly, Jethu,
who was claimed by the appellants to be dead as he was not heard of for more
than seven years, and his so-called sister, Smt. Ganeshia also contended that
on account of his absence for more than seven years, Jethu should be treated to
be dead, put in an appearance before the High Court and filed an application
upon which the High Court observed in its judgment that since the claim put
forward by Jethu depended upon questions of fact, he may approach the
Consolidation Authorities. In the present appeal also, a counter affidavit has
been filed on behalf of Jethu who has denied the case set up by the appellants
and Smt. Ganeshia, who is said, in the counter affidavit, to be the real sister
of Jethu`s father and not of Jethu himself. If Jethu approaches the
Consolidation Authorities, his claim would be investigated and appropriate
orders would be passed. In case it is found that the claims set up by the
appellants and Smt. Ganeshia were false and Jethu was alive whose property
could not be recorded in the name of Gaon Sabha, appropriate action would be
taken against the appellants and Smt. Ganeshia for having set up the claim that
Jethu, on account of his absence for more than seven years, had died a civil
death. It was next contended by the learned counsel for the appellants that the
appellants had filed a revision only in respect of one village before the
Deputy Director under Section 48 of the Act and, therefore, the Deputy Director
ought to have confined himself only to the question raised in that revision
relating to that specific village. It is contended that the Deputy Director
reopened the entire case in respect of all the three villages and adjudicated
upon the rights of the appellants in respect of land situate in all the three
villages. This, it is contended, was beyond the scope of Section 48 of the Act
and consequently the judgment passed by the Deputy Director should be remanded
for fresh hearing.
We are
not prepared to accept this contention. Section 48 of the Act provides as under:-
"48. Revision and reference- (1) 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 other than interlocutory order passed by such authority in the
case of proceedings and may, after allowing the parties concerned an
opportunity of being heard, make such order in the case of proceedings as he
thinks fit. (2) Powers under sub-section (1) may be exercised by the Director
of Consolidation also on a reference under sub-section (3). (3) Any authority
subordinate to the Director of Consolidation may, after allowing the parties
concerned an opportunity of being heard, refer the record of any case or
proceedings to the Director of Consolidation for action under sub-section (1).
Explanation.-(1)
For the purposes of this section, Settlement Officers, Consolidation,
Consolidation Officers, Assistant Consolidation Officers, Consolidator and
Consolidation Lekhpals shall be subordinate to the Director of Consolidation.
Explanation.-(2) For the purposes of this section the expression 'interlocutory
order' in relation to a case or proceedings, means such order deciding any
matter arising in such case or proceeding or collateral thereto as does not
have the effect of finally disposing of such case or proceeding." The
Section gives very wide powers to the Deputy Director. It enables him either suo
motu on his own motion or on the application of any person to consider the
propriety, legality, regularity and correctness of all the proceedings held
under the Act and to pass appropriate orders. These powers have been conferred
on the Deputy Director in the widest terms so that the claims of the parties
under the Act may be effectively adjudicated upon and determined so as to
confer finality to the rights of the parties and the Revenue Records may be
prepared accordingly.
Normally,
the Deputy Director, in exercise of his powers, is not expected to disturb the
findings of fact recorded concurrently by the Consolidation Officer and the
Settlement Officer (Consolidation), but where the findings are perverse, in the
sense that they are not supported by the evidence brought on record by the
parties or that they are against the weight of evidence, it would be the duty
of the Deputy Director to scrutinise the whole case again so as to determine
the correctness, legality or propriety of the orders passed by the authorities
subordinate to him. In a case, like the present, where the entries in the
Revenue record are fictitious or forged or they were recorded in contravention
of the statutory provisions contained in the U.P. Land Records Manual or other
allied statutory provisions, the Deputy Director would have full power under
Section 48 to re-appraise or re-evaluate the evidence on record so as to
finally determine the rights of the parties by excluding forged and fictitious
revenue entries or entries not made in accordance with law. If, therefore,
during the course of the hearing of the revision filed by the appellant under
Section 48 of the Act, the Deputy Director reopened the whole case and scrutinised
the claim of the appellants in respect of two other villages, it could not be
said that the Deputy Director exceeded his jurisdiction in any manner. It will
be noticed that while scrutinising the evidence on record, the Deputy Director
had noticed that the entries were fictitious and in recording some of the
entries in the revenue record in favour of the appellants, statutory provisions
including those contained in U.P. Land Records Manual were not followed. In that situation,
the Deputy Director was wholly justified in looking into the legality of the
entire proceedings and disposing of the revision in the manner in which he has
done. For the reasons stated above, we find no merit in this appeal which is
dismissed but without any order as to costs.
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