Sheo Narain v. Dy. Dir. of Consolidation, U. P — 1966 DIGILAW 366 (ALL)

JUDGMENT B.N. Nigam, J. - Sheo Narain has filed this petition under Article 226 of the Constitution praying for a writ of certiorari quashing the order dated September 29, 1964 copy annexure 3. By annexure 3, the Deputy Director of Consolidation purporting to exercise his powers under section 48(3) of the U.P. Consolidation of Holding Act as amended by U.P. Act VIII of 1963 accepted the reference and ordered adjustment in the petitioner's chak No. 142. He excluded plot No. 395/2, area 8 biswas from chak No. 142 and included plot No. 573, area 6 biswas and 15 biswanis. The petitioner challenges that order. 2. In the petition I have heard the learned counsel for the petitioner and learned counsel of opposite party No. 3. 3. The petitioner states that he is a tenure-holder in village Aini Khrud, Pargana Asiwan, Tahsil Hasanganj, District Unnao and the proposed chak No. 142. Subsequently on March 28, 1964 the Settlement Officer Consolidation on the application of a number of tenure-holders made a reference to opposite party No. 1, The Deputy Director of consolidation, suggesting that 4 biswas 5 biswanis of plot No. 395 be taken from the petitioner's chak. Opposite party No. 1 accepted this reference by the impugned order but increased the area to be excluded to 8 biswas. 4. The Gram Samaj has contested this writ petition. A counter-affidavit has been filed on its behalf. It is pointed out that plot No. 395 was originally reserved for extension of abadi, and khaliyan and that no appeal or revision was filed against this statement of proposal which was confirmed and became final under Section 18 of the U.P. Consolidation of Holding Act as it stood prior to its amendment by U.P. Act VIII of 1963, It is then pointed out that by some fraud behind the back of the opposite party, the petitioner manoeuvred alteration in the principle by getting included 9 biswas 10 biswanis of plot No. 395 in his chak No. 142 in lieu of Usar plot No. 537. The suggestion is that this fraud cannot be countenanced by the court. When the villagers came to know about this, they made a representation to the Settlement Officer who made reference to the Deputy Director of Consolidation who accepted this suggestion. 5. The suggestion is that this fraud cannot be countenanced by the court. When the villagers came to know about this, they made a representation to the Settlement Officer who made reference to the Deputy Director of Consolidation who accepted this suggestion. 5. The first question for my consideration is whether the provisions of the Consolidation of Holding Act as it stood prior to its amendment by U.P. Act VIII of 1963 will apply or the provisions of the amended Act will apply or the provisions of the amended Act will apply. I have to turn to the provisions of Section 47(1) of the U.P. Act VIII of 1963. As I am of opinion that this was 'work subsequent to the publication of the statement of proposals under Section 20, it appears to me that the provision of the U.P. Consolidation of Holding Act before its amendment by U.P.Act VIII of 1963 will apply. In these circumstances I am of opinion that the Deputy Director of Consolidation was wrong in proceeding in terms of Section 48(3) whereas he could have exercised his powers only under Section 21(6) of the U.P. Consolidation of Holding Act. The two provisions are not absolutely similar as held by me in the case of Aladad Khan v. Sri G.M. Murtaza, District Deputy Director of Consolidation, Rae Bareli and Others, 1967 RD 53 . There is one further difficulty and it is that sub-section 21(6) allows a Deputy Director to redress material injustice likely to be caused to a 'tenure-holder'. It does not appear to me that the Gram Samaj can be considered to be tenure-holder. In that view also I am of opinion that action under Section 21(6) would not have been taken. 6. The learned counsel for the Gram Samaj again emphasised the fact that previous statement of proposals had become final under Section 18 of the U.P. Consolidation of Holding Act as it stood prior to its amendments by U.P. Act VIII of 1963. There is no denying that position. The further argument of the learned counsel is that the petitioner has by some fraud got this plot in dispute include in his chak. There is no denying that position. The further argument of the learned counsel is that the petitioner has by some fraud got this plot in dispute include in his chak. The learned counsel should have taken action to get the effects of this fraud removed either by proceedings before the consolidation authorities or in this court or even in the civil court on a full statement as regards the particulars of the fraud. Alternatively, the contention may be that as the petitioner has been guilty of some fraud, this court will not render him any assistance. For that it would be necessary to come to the conclusion that the petitioner had in fact committed some fraud. The mere fact that a plot included in the area reserved for the adadi and pasture land came to be allotted to the petitioner as part of his chak will not necessarily lead to the conclusion that it was the petitioner who committed some fraud. Besides making some vague allegations, no details of the fraud committed by the petitioner or anything done by him has been given in the petition. I am, therefore, unable to come to the conclusion that the change was induced or brought about by any fraud, deception or illegal act on the part of the petitioner. The learned counsel states that he has used the word surreptitious interpolations. I am of opinion that too is nothing but vague. 7. No other point has been pressed before me. 8. I, therefore, accept this writ petition and quash the impugned order leaving the parties as well as the consolidation authorities to take such other action in accordance with law as may be open to them. The petitioner will get his costs from opposite party 3.