Sripat v. Haridwar — 1979 DIGILAW 1161 (ALL)

JUDGMENT : R.S. Singh, J. This is a petition directed against the order of the Dy. Director of Consolidation dated 4-6-1971 dismissing the revision filed by the Petitioner. 2. The facts of the case, in brief, are that after the finalisation of the consolidation scheme a pumping set was installed by the Petitioner in his well. The Petitioner was allotted chaks at three places. In order to irrigate his other chaks from the pumping set installed by him on one of his chaks, the Petitioner began to construct a pucca nali on the land left for village abadi. Chak-holder No. 112, Respondent No. 1, created obstructions. The Petitioner moved an application to the Asstt. Consolidation Officer for affording nali and rasta for the irrigation of one chak from his tube-well installed on the other chak. The Asstt. Consolidation Officer sent the case to the C. O. who with his own report sent the same to the S. O. (C). The S. O. (C) by his order dated 23-2-1970 rejected the application of the Petitioner on the ground that he should have filed objection under Sec, 20 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) and it is not possible to allow water channel from common plot for private person or persons. The Petitioner filed a revision against the order of the S. O. (C). The Dy. Director of Consolidation also rejected the revision. The Dy. Director of Consolidation was of the view that in the absence of any objection u/s 20 of the Act the application was not maintainable. However, it was also held by the Dy. Director of Consolidation that there appears to be no justification to disturb other chak-holders or the tenants whose plots may fall in the way. The Petitioner has challenged the aforesaid orders before this Court. 3. There is no dispute about the fact that when the application for pro viding nali and chak was moved by the Petitioner the notification u/s 52 of the Act was not issued. But during the pendency of this writ petition the notification u/s 52 of the Act has been issued. One of the questions for consideration in this case is as to whether the application moved by the Petitioner after finalisation of the consolidation scheme is maintainable where no objection was filed by the Petitioner u/s 20 of the Act. Respondents Nos. But during the pendency of this writ petition the notification u/s 52 of the Act has been issued. One of the questions for consideration in this case is as to whether the application moved by the Petitioner after finalisation of the consolidation scheme is maintainable where no objection was filed by the Petitioner u/s 20 of the Act. Respondents Nos. 8 and 9 have rejected the application and taken the view that where no objection was filed u/s 20 of the Act, an application after the confirmation of the consolidation scheme is not maintainable. 4. It has been contended by the learned Counsel for the Petitioner that non-filing of objection u/s 20 of the Act cannot be a ground for dismissing the application for nali and rasta. The Petitioner was entitled to get relief u/s 48 (3) of the Act. In support of his contention he has relied on a decision reported in Mullhur v. Dy. D. C. 1967 R. D. 330 in which it has been held that a failure on the part of a party to file an objection u/s 20 of the Act does not take away the jurisdiction of the Dy. Director of Consolidation to take action under Sec, 48 (3) of the Act. He has further relied on a decision reported in Bhagwat v. Shekhar 1970 R. D. 169 in which a similar view was also taken. 5. The learned Counsel for the contesting Respondents is not able to support the view taken by Respondents Nos. 8 and 9 rejecting the Petitioner's application as not maintainable as no objection was filed by him under Sec, 20 of the Act. However, he tried to justify the orders passed by Respondents Nos. 8 and 9 on the ground that in the absence of any objection filed by the Petitioner u/s 9 of the Act regarding valuation of the plot at the proper stage, the application moved by the Petitioner is not maintainable and, therefore, the application was rightly rejected by Respondents Nos. 8 and 9. He elaborated his arguments by referring to the various provisions of the Act, He contended that according to the provisions of Section 8(1) (ii) of the Act the valuation of each plot is determined by the Asstt. Consolidation Officer in consultation with the Consolidation Committee. 8 and 9. He elaborated his arguments by referring to the various provisions of the Act, He contended that according to the provisions of Section 8(1) (ii) of the Act the valuation of each plot is determined by the Asstt. Consolidation Officer in consultation with the Consolidation Committee. Section 9-A of the Act is the provision for filing objections by any tenure-holder against the valuation determined u/s 8 (1) (ii) of the Act. Section 11-A of the Act creates a bar in respect of the claims of the valuation of plots etc, that if an objection regarding these matters could have been taken but was not taken, then the tenure-holder shall be debarred from raising it at any subsequent stage of the consolidation proceedings. In view of the aforesaid provisions it has been contended by the learned Counsel for the Respondents that it was open for the Petitioner to file objection in respect of the valuation of the plots to which he wanted nali and rasta. It was not done by him at the proper time. Therefore, he is debarred from raising it at this stage of the consolidation proceedings. In support of his contention he has placed reliance on a decision reported in Beni Madho Dubey Vs. Dy. Director of Consolidation and Others, (1978) AWC 510. In this case it has been expressed that in view of the aforesaid provisions the question of valuation of a plot was beyond the jurisdiction of the S. O. (C) in an appeal pending before him arising out of allotment proceedings. Moreover, the plot because of its nature presumably abadi area and non-agricultural area was declared to be out of consolidation. The appellate court acted without jurisdiction in bringing it in the file of consolidation and directing its valuation to be done. 6. The learned Counsel for the Respondents further referred to an unreported decision of this Court in Changur v. Dy. DC, CMW No. 3464 of 1962 D/-7-7-69 (Alld.) This decision was affirmed in Ram Asre Singh v. Changur Sp. A. No. 800 of 1969 D/- 25-9-1970 (Alld.). In that case rasta was claimed from the portion of plot allotted in the chak of others. The Dy. Director of Consolidation accepted the claim and allowed rasta through the chak of others giving him the land of equal valuation. The order of the Dy. A. No. 800 of 1969 D/- 25-9-1970 (Alld.). In that case rasta was claimed from the portion of plot allotted in the chak of others. The Dy. Director of Consolidation accepted the claim and allowed rasta through the chak of others giving him the land of equal valuation. The order of the Dy. Director of Consolidation in that case was quashed by the learned Single Judge of this Court. The view of the learned Single Judge was affirmed in the special appeal. In the special appeal it was observed that "the claim of the Petitioner to carve out a path way for him from the chaks allotted to the various other Respondents was not a reasonable claim. Moreover, after the allotment of chaks over which possession had already been handed over to the allottees, it was not expedient on the part of the Dy. director of Consolidation to have interferred with them." 7. In the instant case the Petitioner had claimed pathway 'nali' from the land left out for village abadi connecting his one chak to the other chak where he has recently installed a pumping set. According to the case of the Respondents if the claim of the Petitioner for pathway and water channel is allowed, chaks of various chak-holders, some of them are not parties to the petition, will be disturbed. The provision for providing rasta and Nali (Gul) is provided in Section 8-A of the Act read with Rule 24-A of the Rules framed under the Act, relevant portion of which is reproduced hereunder: 24-A. Sections 8-A and 54 ; (1).... (2) Besides reservation of lands for extension of Abadi, including areas for Abadi sites for Harijans and landless persons in the unit, land may be reserved according to the needs of each unit for the following public purposes: (ii) roads, village and inter village rastas; (xi) water channels (gools or nalis) for irrigation purposes;.... 8. These provisions are applicable at the time of the preparation of the Statements of Principles before the notification u/s 52 of the Act is issued. The provisions applicable after the issue of the notification u/s 52 of the Act for the afore said purpose is provided in Section 52-A of the Act. 8. These provisions are applicable at the time of the preparation of the Statements of Principles before the notification u/s 52 of the Act is issued. The provisions applicable after the issue of the notification u/s 52 of the Act for the afore said purpose is provided in Section 52-A of the Act. The relevant portion of which is reproduced as under: 52-A. A special provision for Chak Roads and Chak Guls-- (1) In the case of a unit in relation to which a notification under Sub-section (1) of section 52 has been issued before the commencement of the Uttar Pradesh Consolidation of Holdings (Amendment Act), 1970, the Collector may, if he is of opinion that there exist no provision or inadequate provision of chak roads or chak guls in the unit, and shall, if a representation in that behalf by not less than ten per cent of the total number of tenure-holders is made to him within six months of the said commencement proceed to take action under Sub-section (2), anything to the contrary contained in section 52 notwithstanding. 9. Both these aforesaid provisions are applicable in case of village path or nali (gul) for public purpose. No pro vision has been pointed out under the Act or the Rules framed under the Act for providing a rasta and nali to any private tenure-holder. In the absence of any specific provision under the Act or the Rules framed under the Act for any act to be done by any authority, nothing can be done by the Deputy Director of Consolidation in exercise of his powers u/s 48 (3) of the Act. In this view of the matter, the application of the Petitioner for providing rasta and nali from one chak to the other where he has got his pumping set was not maintainable. 10. In view of the aforesaid discussions, I am of the view that this is not a fit case for interference in writ jurisdiction by this Court. The order of the Dy. Director of Consolidation does not suffer from any error of law muchless error apparent on the face of the record. 11. For the reasons given. above, 1 dismiss the petition. But in the circumstances of the case, there will be no orders as to costs. Petition dismissed.