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PETITIONER: SHEO NAND & ORS.  C

       Vs.

RESPONDENT: THE DEPUTY DIRECTOR OF CONSOLIDATION ALLAHABAD AND ORS.

DATE OF JUDGMENT:       03/02/2000

BENCH: Y.K.Sabharwal, R.C.Lahoti

JUDGMENT:

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

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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

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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

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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

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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

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this  appeal which is dismissed but without any order as  to costs.