Chheda v. Dy. Director of Consolidation, U. P — 1962 DIGILAW 150 (ALL)

JUDGMENT N.U. Beg, J. - This is a writ petition under Article 226 of the constitution of India. The petitioners in this writ petition are (1) Chheda son of Ausan and (2) Ghooroo son of Brij Lal. The petitioners' case as set out in the petition is that they were bhumidhars and sirdar's of plots Nos. 111, 375, 391/1, 623, 641, 354, 399, 23, 377A, 21, 43, 226, 363 and 364 situate in village Dhanauli Thakuran, Pargana Surajpur, Tahsil Ramsanehighat District Barabanki. Village Dhanauli Thakuran in which the aforementioned plots are situate came under the consolidation operations. It may be mentioned at this stage that in the present case it is conceded by the parties that the proceedings were taken under the old Consolidation of Holdings Act, and not under the Consolidation of Holdings Act as amended by U.P. Act XXXVIII of 1958. A statement of proposals was prepared under Section 19 of the old Consolidation of Holdings Act, (U.P. Act of 1953). According to the said proposals in lieu of the plots mentioned above it was proposed to allot a Chak to the petitioners comprising plots Nos. 401, 400, 399, 394, 498, 396, 376, 377, 387, 389, 378, 623 and 641 of the same village. C.H Form No. 24 containing an extract of the statement of proposals prepared under rule 48 of the Act was also issued. In this Form also the new plots to be allotted to the petitioners during the consolidation proceedings were shown. As the petitioners were satisfied with the statement of proposals as disclosed by C.H. Form No. 24 they did not file any objection to it. Opposite parties Nos. 4 to 8, viz., Bhulloo, Gaya Prasad, Srimati Sunder Dei, Ram Saran and Baij Nath, however filed objections before the Settlement Officer Consolidation against the said proposals. In paragraph 4 of the application it is stated that the Additional Settlement) Officer Consolidation, opposite party No. 2 heard these objections as appeals and allowed the same by his order dated March 21, 1961. The order in question was seriously prejudicial to the interests of the petitioners, because, as a result of the said order, plots of a better quality which were proposed to be given to them under C.H. Form No. 24 which was originally issued to them were substituted by plots of an inferior quality. The order in question was seriously prejudicial to the interests of the petitioners, because, as a result of the said order, plots of a better quality which were proposed to be given to them under C.H. Form No. 24 which was originally issued to them were substituted by plots of an inferior quality. Aggrieved by the said order the petitioners preferred a revision petition before opposite party No. 1, Deputy Director of Consolidation, Uttar Pradesh, Lucknow. A copy of this revision petition has been filed as annexure 2 along with the petition. The very first ground taken in this revision petition by the petitioners was that the Additional Settlement Officer erred in law in completely changing Chak No. 19 which was duly allotted to the petitioners without giving them an opportunity for filing objections. The petitioner's case as set out in the present writ petition is also to the effect that no notice of the aforesaid proceedings was given to the petitioner Chheda, and no opportunity was given to him for presenting his case. As a result the order passed by the Additional Settlement Officer was in violation of the principles of natural justice and should not be allowed to stand. The Deputy Director of Consolidation dismissed the revision petition of the petitioner by his order dated August 21, 1961. Thereafter the petitioners filed the present writ petition with a prayer that a writ of certiorari be issued quashing the orders passed by the Additional Settlement Officer dated March 21, 1961 and of the Deputy Director of Consolidation dated August 21, 1961. 2. The argument of the learned counsel for the petitioners before me is that the consolidation authorities committed a grave error of law in allowing the objections filed by opposite parties Nos. 4 to 8 without giving the petitioner No. 1 Chheda any action and without affording him any opportunity to present his case. This ground is stated in paragraph 5 of the writ petition, and paragraph 5 of the affidavit filed along with the writ petition. In paragraph 5 of the counter-affidavit filed by the Assistant Consolidation Officer it is admitted that alterations were made by the Additional Settlement Officer in the Chak which was originally proposed to be allotted to the petitioner. This ground is stated in paragraph 5 of the writ petition, and paragraph 5 of the affidavit filed along with the writ petition. In paragraph 5 of the counter-affidavit filed by the Assistant Consolidation Officer it is admitted that alterations were made by the Additional Settlement Officer in the Chak which was originally proposed to be allotted to the petitioner. It is also stated in this paragraph that Ghooroo, petitioner No. 2 was duly informed of the proposed amendment in his Chak, and the order was passed after hearing all the affected tenure holders. It may be noted in this connection that in the application filed by the petitioners it is specifically stated that no notice was given to Chheda petitioner No. 1 and no opportunity was given to him for presenting his case. In his reply the Assistant Consolidation Officer has not specifically controverted this fact. All that he has stated is that Ghooroo petitioner No. 2 was duly informed of the proposed amendment. Thereafter he has stated that all the affected tenure-holders including the petitioner Ghuroo were heard. Although the name of Chheda has been, specifically mentioned in the affidavit, the Assistant Consolidation Officer has not mentioned the name of Chheda in his counter-affidavit nor has he specifically denied the allegation made on behalf of Chheda that no notice was served on him. It may, therefore, be taken to have been admitted in the present case that no action was served on Chheda in respect of the objections filed by opposite parties Nos. 4 to 8. On the basis of the above fact it is argued before me by the learned counsel for the petitioners that an order seriously prejudicial to the petitioner Chheda was passed against him without giving notice of the proceedings to him and without giving him an opportunity of presenting his case or meeting the case of the opposite parties. There has, therefore, been violation of the principles of natural justice in this regard. In this connection the learned counsel had also invited my attention to the provisions of Section 21 of the U.P. Consolidation of Holdings Act which prescribed the manner in which the objections to the statement of proposals should be disposed of. There has, therefore, been violation of the principles of natural justice in this regard. In this connection the learned counsel had also invited my attention to the provisions of Section 21 of the U.P. Consolidation of Holdings Act which prescribed the manner in which the objections to the statement of proposals should be disposed of. Section 21 (5) lays down as follows :- "The Consolidation Officer and the Settlement Officer (Consolidation) shall before deciding the objection, or the appeal, as the case may be, make a local inspection of the village after giving due notice of their intention to do so to the parties concerned and consolidation committee." 3. Learned counsel for the petitioners argued that the stage of local inspection is an important one. No notice was given to Chheda as provided in Section 21 (3) of the Act. Under the circumstances this explicit and mandatory provision of law was also contravened in the present case. In my opinion the effect of non-compliance with this mandatory provision of law would be to nullify the proceedings taken under Section 21 of the Act. 4. On behalf of the opposite parties it is argued that this objection might not have been pressed in the oral arguments before the Additional Settlement Officer Consolidation. It is further argued that this inference follows from the fact that there is no reference to this argument in the judgment of the Deputy Director of Consolidation. Under the circumstances, it is argued, that this objection should not be entertained at this stage. On the other hand, on behalf of the petitioners the learned counsel stated before me that this point was argued before the Additional Settlement Officer and the learned counsel was prepared to file an affidavit in support of his statement. In the present case, however, it appears to me that the fact that this point is placed in the very forefront of the revision application and is taken as ground No. 1 supports the statement made by the learned counsel that this point was urged before the Additional Settlement Officer. In any case, in the present case there is an implied admission by the opposite party that no notice was actually issued to Chheda petitioner No. 1. In the present case, therefore, there is a manifest error of law apparent on the face of the record. In any case, in the present case there is an implied admission by the opposite party that no notice was actually issued to Chheda petitioner No. 1. In the present case, therefore, there is a manifest error of law apparent on the face of the record. In this situation I am of the opinion that the proceedings before the consolidation authorities should not be allowed to stand. If the said orders are quashed the only result would be that the proceedings would be taken afresh after an opportunity is given to Chheda to meet the aforesaid objections on merits. If the opposite parties have a good case on merits, they have an opportunity of fighting it out in the presence of Chheda. On the other hand, if the order is reversed, Cheda has a just cause of grievance. The interests of justice and fair play also require that the impugned orders should be quashed. 5. Finally, on behalf of the petitioners the learned counsel argued that the Additional Settlement Officer, Consolidation had no jurisdiction to dispose of the objection. The learned counsel in this connection argued that the proceedings in the present case took place under the old Act and not under the Act as amended by U.P. Act No. XXXVIII of 1958. This point, however, does not seem to be free from difficulty so far as the old Act is concerned. In paragraph 5 of the counter-affidavit filed on behalf of the opposite parties, however, it is admitted that the Additional Settlement Officer was not validly empowered to dispose of the objections. In view of this admission it is not necessary for me to go further into the matter. This admission made on behalf of the opposite parties would by itself, be sufficient to entitle the petitioners to the relief sought for by them. 6. For the above reasons I am of the opinion that this writ petition should be allowed. I accordingly quash the order dated March 21, 1961, passed by the Additional Settlement Officer and the order dated August 21, 1961, passed by the Deputy Director of Consolidation. Under the circumstances of the case I make no order as to costs.