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1980 DIGILAW 686 (ALL)

Jagarnath v. Deputy Director Of Consolidation

1980-07-25

B.D.AGARWALA

body1980
JUDGMENT : B.D. Agarwala, J. The dispute relates to allotment of certain chaks in village Jamalpur, tahsil Ghosi, district Azamgarh. The Assistant Consolidation Officer, proposed the allotment of three chaks to the Petitioner. Objections were filed by the Petitioner claiming two chaks instead of three as proposed. He further prayed for allotment of 16 annas valuation of Kodar land i.e. the land used for cultivation of vegetables in chak No. 1 in Sector 6 as according to the Petitioner, he had his original plot of land valuing 16 annas in the said Kodar land. The Consolidation Officer allowed the claim of the Petitioner in part and allotted him the land valuing 10.50 annas in Kodar land comprised in chak No. 1. The Consolidation Officer also made further adjustments. 2. The Petitioner being aggrieved filed an appeal before the Settlement Officer Consolidation, again claiming two chaks and allotment of land valuing 16 annas in Kodar. An appeal was also filed by opposite party No. 2. Both these appeals were dismissed by the Settlement Officer by his judgment and order dated 20th September, 1975. The Settlement Officer Consolidation allotted opposite party No. 2 land in Kodar valuing 6.119 annas. Both the parties preferred revisions before the Deputy Director Consolidation. The Deputy Director Consolidation allotted four chaks to the Petitioner and made a major reduction of chak No.1 by reducing land in Kodar to the extent of only 4.453 annas though the Petitioner held 16 annas in Kodar originally. It is this judgment and order dated 25th of May 1979 which has been impugned in the present petition under Article 226 of the Constitution. 3. It may be mentioned that the opposite party No. 3 had prayed before the Deputy Director for shifting from Sector No. 5 to Sector No. 8. This allegation has been controverted in the counter affidavit filed by the opposite party No. 3. 4. The main grievance of the Petitioner, as has been submitted by Sri A.N. Tripathi, Learned Counsel appearing on his behalf, is in regard to allotment of the extent of land in Kodar. He has submitted that this is the main sustenance of the Petitioner. Sri Tripathi has attacked the judgment and order of the Deputy Director on various grounds. 5. Firstly, it has been contended that the Deputy Director manifestly erred in allotting four chaks to the Petitioner. He has submitted that this is the main sustenance of the Petitioner. Sri Tripathi has attacked the judgment and order of the Deputy Director on various grounds. 5. Firstly, it has been contended that the Deputy Director manifestly erred in allotting four chaks to the Petitioner. He relied upon Clause (e) of Sub-section (1) of Section 19 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) and the first proviso thereto in support of his submission that the Deputy Director has failed to take into account the primary consideration of compactness of area while allotting four chaks to him and that the Deputy Director has failed to show that the present was an exceptional case which necessitated the allotment of four chaks. He has further placed reliance on the decision of a learned single Judge of this Court in Bajai v. Deputy Director of Consolidation 1970 AWR 305. 6. It is true that in the instant case the Deputy Director Consolidation having himself allotted four chaks, the requirement of the first proviso to Section 19(1)(e) stand fulfilled. It is also true that the second proviso lays down that no consolidation made shall be invalid for the reason merely because the number of chaks allotted to a tenure holder exceeds three, but in my opinion neither of these two provision can justify the Deputy Director while allotting more than three chaks to ignore that basic consideration of compactness of area and to take it that more than three chaks would be allotted only in exceptional cases. There must be in my opinion, sufficient indication in the order of the Deputy Director, allotting more than three chaks, to evidence application of his mind to the requirement of an exceptional case having been made out. In the instant case I find that the judgment of the Deputy Director Consolidation does not satisfy the aforesaid condition. 7. It has next been contended that according to Section 19(1)(e) every tenure holder must be allotted, as far as possible, land at the place where he holds the largest part of his holding i.e. at the place of his original holding. 7. It has next been contended that according to Section 19(1)(e) every tenure holder must be allotted, as far as possible, land at the place where he holds the largest part of his holding i.e. at the place of his original holding. Sri Tripathi has contended that in case a departure is made from this requirement, it must be shown by giving reasons that it was not possible to allot land at the place where the largest part of his original holding was held by the tenure holder. He submits that it is merely not sufficient to say that such and such an adjustment was being made; but what was necessary was to show by reasons that it was not possible to allot land at the place where the largest part of the holding was held. 8. In Kehar Singh v. The Joint Director of Consolidation U.P. Lucknow Camp at Meerut S.P.A. No. 910 of 1963, D/- 4th of May 1964(UPR Cases 380) a Division Bench of this Court interpreted the expression “as far as possible” occurring in Section 19(1)(e) of the Act in relation to an argument of unconstitutionality and observed thus: ...What the words 'as far as possible' mean is that so far as it is practicable the Assistant Consolidation Officer should do what is laid down in Section 19(2)(e) if it is possible for him to do so he has no discretion in the matter and is bound to do what the legislature required him to do. He has discretion only when it is not possible for him to do so and the legislature had to provide for the contingency in which it was not practicable to comply with the provision in Section 19(2)(e). If a large number of tenure holders hold the largest part of their holdings close to one another it would be impossible for each one of them to be allotted a compact area in that block. In some cases it would be impossible to comply with the provision and the legislature could not lay down as a hard and fast rule that it must be complied with because it could not require an impossible act to be done. In some cases it would be impossible to comply with the provision and the legislature could not lay down as a hard and fast rule that it must be complied with because it could not require an impossible act to be done. It had, therefore, to provide for a case in which it was not possible to do so and therefore, it has used the words 'as far as possible' so long as it was possible to comply with the provision the Assistant Consolidation Officer had no discretion in the matter at all the giving him discretion when it was not possible to do so could not be said to be unconstitutional. 9. In Babu Singh v. Dy. Director (Cons) Meerut, Civil Misc. Writ No. 4627 of 1973 D/- 16th May, 1979, a learned single Judge of this Court relying upon the aforesaid Division Bench in Kehar Singh's case (supra) observed thus: It was incumbent upon the revisional court to indicate as to why it was not possible for it to allot chak to the Petitioners on their original plot specially when they had got the relief from the appellate authority. It was further observed by the learned Judge: To my mind the Deputy Director of Consolidation has acted illegally in allotting chak to the contesting opposite party on plot No. 293/2 without examining the question as to whether it was not possible for him to allot the aforesaid plot to the Petitioners in the circumstances of the present case. 10. In Roop Narain v. The Dy. Director of Consolidation Civil Misc. Writ No. 1213 of 1976 D/- April 1, 1980, after referring to the provisions of Section 19(1)(e) observed that the rigour of the section has been taken away by the use of the expression 'as far as possible.' The argument made by the counsel for the Petitioner that unless it was impossible to do so compliance must be made of the requirement of Section 19(1)(e), after being noticed by the learned Judge was not examined, after recording a finding that the Deputy Director in that case had in fact not acted against the provisions of Section 19(1)(e). This decision, thus in my view cannot be said to hold a view contrary to what has been observed in Kehar Singh's case (supra). 11. This decision, thus in my view cannot be said to hold a view contrary to what has been observed in Kehar Singh's case (supra). 11. It appears unnecessary to refer to certain other cases cited by the Learned Counsel for opposite parties where the expression 'as far as possible' occurring in the aforesaid section was noticed by this Court. These decisions were prior to the decision in Kehar Singh's case and do not afford any valuable assistance on the point. 12. In my opinion, considering the scheme and object of the Act and the provisions referred to above, the consolidation authorities should, as far as possible i.e. so far as it is practicable, unless it is a case where it is not possible to do so, allot land at the place where the tenure holder holds the largest part of his original holding. The orders of the consolidation authorities must sufficiently indicate that they were alive to the requirement that a departure from the normal rule can be made only in an exceptional case. If, therefore, in my opinion, the order fails to so sufficiently indicate, it must fall. 13. In the present case the order of the Deputy Director fails to so sufficiently indicate. The order, at best, in substance indicates reasons for making adjustments between the Petitioner and the opposite party No. 2. In other words, reasons for another alternative arrangement appealable to the Deputy Director have been sought to be given. But this by itself would not justify departure to be made from the rule laid down in Section 19(1)(e) assuming it to be an exceptional case. 14. Learned Counsel for the opposite party has also submitted that it is not for this Court while exercising its jurisdiction under Article 226 of the Constitution to interfere with the adjustments which the authorities considered best. So far as the statement of this proposition goes there can possibly be no dispute, but the question which is up for consideration before me is noticed by me above, is not of accepting one alternative or another. The question is of compliance of the provisions of Section 19(1)(e) of the Act. 15. On behalf of the Petitioner, while relying upon Section 3(8-A) and Section 19(1)(e) of the Act, it has been submitted that sector wise valuation ought to have been taken into consideration and made the basis of allotment of chaks. The question is of compliance of the provisions of Section 19(1)(e) of the Act. 15. On behalf of the Petitioner, while relying upon Section 3(8-A) and Section 19(1)(e) of the Act, it has been submitted that sector wise valuation ought to have been taken into consideration and made the basis of allotment of chaks. I do not propose to consider this question since the matter is now being sent back to the Deputy Director for decision afresh. It will be for the Deputy Director to consider this question. 16. On behalf of the Petitioner it has been asserted that the Deputy Director has wrongly assumed that the Petitioner had holding valuing 30 annas in Kodar and the opposite party No. 2 had holding valuing 11. 820 annas in Kodar. It has been asserted that the Petitioner had holding valuing 16 annas In Kodar and opposite party No. 2 had land in Kodar valuing 4. 246 annas. This wrong assumption, according to the Learned Counsel, materially effected the ultimate decision of the Deputy Director. Having gone through the averments made in the affidavit, it cannot be said that the Petitioner's case in this regard is without substance. Be that as it may since the matter is being sent to the Deputy Director, he would examine the case of the parties on this count also. 17. Sri R.N. Singh, Learned Counsel for opposite party has then submitted that as substantial justice has been done between the parties, no interference be made through the present proceedings, even assuming that some provisions of this Act had not been complied with. 1 am unable to agree, appears from the averments made that Kodar land is the land upon which sustenance of the parties depend and in regard to which the Petitioner has made his main grievance. The land in Kodar allotted to the Petitioner by the Deputy Director was much reduced even from the extent allotted to him by the Settlement Officer Consolidation on the other hand, the opposite party No. 2 has been allotted land in Kodar which is more than even that held by him originally. 18. For the reasons given above, I am unable to sustain the order of the Deputy Director Consolidation and this petition must succeed. 19. I accordingly allow this writ petition with costs, to the Petitioner. 18. For the reasons given above, I am unable to sustain the order of the Deputy Director Consolidation and this petition must succeed. 19. I accordingly allow this writ petition with costs, to the Petitioner. The judgment and order dated 25th of May, 1979, passed by the Deputy Director Consolidation Azamgarh is hereby quashed. The Deputy Director is directed to decide the two revisions filed by the parties before him afresh in accordance with law and in the light of the observations made in this judgment.