Jaga v. Deputy Director Of Consolidation, Ballia — 1984 DIGILAW 104 (ALL)

JUDGMENT A. Banerji, J. 1. 264 Petitioners filed this joint petition against an order of respondent no. 1, Deputy Director of Consolidation, Ballia, dated 25th October, 1975, dismissing two revisions under Sec. 48 of the U. P. Consolidation of Holdings Act, 1953 (hereinafter referred to as 'the Act'). These revisions were filed against the order of respondent no. 2, Settlement Officer (Consolidation) dated 5th July, 1975 allowing 71 appeals in part and setting aside the provisional consolidation scheme of the entire village and directing preparation of the same afresh after giving an opportunity to all such persons who had any objection to the valuation of the Chaks. The Settlement Officer (Consolidation) held that the Assistant Consolidation Officer had completely ignored the provisions of the law and the Rules in preparing the provisional consolidation scheme, which was full of illegalities and irregularities and called for whole-sale setting aside of the same. 2. These 264 petitioners filed this Petition mainly on the ground that the Deputy Director of Consolidation had passed the order dated 25th October, 1975 violating the principles of natural justice, inasmuch as the order was passed without hearing the petitionres. Their case was that the provisional consolidation scheme was prepared properly and in accordance with law. The said scheme could not be set aside completely by either the Settlement Officer (Consolidation) or the Deputy Director of Consolidation in exercise of their appellate and revisional jurisdiction and that these two authorities had shirked their duties in not deciding the appeals and the revisions on the merits making necessary modifications wherever necessary. In other words, the contention was that the entire consolidation scheme could not be set at nought by these two authorities and that they had acted without jurisdiction in doing so. On behalf of the contesting respondents it was pointed out that the orders passed by the Settlement Officer (Consolidation and the Deputy Director of Consolidation were speaking orders and gave sufficient reasons for the setting aside of the provisional consolidation scheme. The observations made by these two consolidation authorities in their orders showed that the provisional consolidation scheme was prepared without complying with the provisions of the law and the Rules or the guidelines in the Consolidation Manual. Valuations of Chaks were made arbitrarily. The observations made by these two consolidation authorities in their orders showed that the provisional consolidation scheme was prepared without complying with the provisions of the law and the Rules or the guidelines in the Consolidation Manual. Valuations of Chaks were made arbitrarily. Without having regard to the accepted position, change of sectors was made capriciously and Bachat land for the Gaon Sabha was left at 36 places in the village, which was wholly prohibited. Learned counsel for the contesting respondents urged that the consolidation authorities had ample power under the law to order the cancellation of the provisional consolidation scheme and to order for the preparation of a fresh one in accordance with law. The Settlement Officer (Consolidation) had acted within his jurisdiction in the -present case in doing so. The Deputy Director of Consolidation could also exercise powers under Sec. 21 (4) of the Act while hearing and deciding a revision under Sec. 48 of the Act. Learned counsel further contended that it was not necessary in the circumstances of the present case to have given a hearing to each and every tenure-holder in the village. The interest of all the tenure holders was protected by setting aside the provisional consolidation scheme. 3. Learned counsel for the contesting respondents raised a preliminary objection to the maintainability of the writ petition, as 17 of the petitioners had died during the pendency of the writ petition in this Court, and no steps had been taken by the petitioners to bring the heirs of the deceased petitioners on the record. Mr. S. N. Singh holding the brief of Mr. R. N. Singh, learned counsel for the petitioners admitted the factum of the death of 17 petitioners viz. Dasrath-43, Lakhuman-48, Harisaran-60, Vilar-97, Musafir-112, Shrikishun-114, Ramvruksh-115, Sital-136, Rangeeram-146, Shivmuni-153, Harihar-162, Nageena Shukla-178, Babu Nandan Rai-180, Sunder Rai-181, Mijari Kunwari-183, Baliram Chubey-187 and Bhola-220. He also admitted that no steps had been taken for bringing their heirs on the record. He, however, made the following statement :- "The names of 17 dead petitioners may be deleted from the array of petitioners and the writ petition be treated as if the 17 petitioners are not parties to it and consequently it is not necessary to bring their heirs on the record." 4. He, however, made the following statement :- "The names of 17 dead petitioners may be deleted from the array of petitioners and the writ petition be treated as if the 17 petitioners are not parties to it and consequently it is not necessary to bring their heirs on the record." 4. It is evident that due to non- impleadment of the heirs of the deceased petitioners, the Petition on their behalf cannot proceed and the orders of the Respondents 1 and 2 have become final as against them. The effect would be that as against 17 deceased petitioners and their heirs the impugned orders would stand. The statement made at the Bar is an effort to get over this situation and to put forward the case on behalf of the rest of the Petitioners, as if the 17 deceased petitioners were no parties to this petition. Having heard the learned counsel for the parties, I am of the opinion that even allowing the oral prayer would make no difference to the final outcome in this case. The oral prayer is accordingly allowed. The Writ Petition is now considered on the merits, as it involves the interests of all the tenure-holders in the concerned village. Section 19-A of the Act requires the Assistant Consolidation Officer to prepare in the prescribed form a provisioual consolidation scheme for the unit. Rule 46 of the U. P. Consolidation of Holdings Rules, 1954 (hereinafter referred to as the Rubs) requires the Assistant Consolidation Officer to prepare a provisional consolidation scheme in C. H. Form 23 in consultation with the members of the Consolidation Committee after making enquiries from as many tenure holders as possible. The consolidation scheme so prepared is to be accompanied by a copy of the map of the unit showing the plots allotted to tenure-holders and the location of land set apart for public purpose. The Assistant Consolidation Officer has to follow the guidelines as contained in Rules 47 to 49. Any objection to the provisional consolidation scheme received by the Assistant Consolidation Officer have to be forwarded to the Consolidation Officer with a common village file. The Consolidation Officer is required to inspect the plots, after notice to concerned parties before he rejects the objection. He is required to serve a notice o Rejection on the tenure-holder. Notice or the revised extract has also to be served on the tenure-holder. 5. The Consolidation Officer is required to inspect the plots, after notice to concerned parties before he rejects the objection. He is required to serve a notice o Rejection on the tenure-holder. Notice or the revised extract has also to be served on the tenure-holder. 5. An appeal lies to the Settlement Officer (Consolidation) under Section 21 (2) of the Act. The Settlement Officer (Consolidation) before deciding the appeal is required to make local inspection of the plots in dispute, after notice [to the parties concerned. The appellate power of the Settlement Officer (Consolidation) (vide sec. 21 (4) of the Act) empowers the appellate authority to interfere with the provisional consolidation scheme as prepared by the Assistant Consolidation Officer or subsequently modified by the Consolidation Officer, as the case may be, by setting aside or modifying the same or directing the Consolidation Officer to revise the provisional consolidation scheme, or do so himself after providing an opportunity of being heard to the tenure-holders concerned, or to remand the same to the Assistant Consolidation Officer or the Consolidation Officer with such directions as considered necessary. However, the primary requirement in Sec. 21 (4) of the Act is that if the Settlement Officer (Consolidation) "is of the opinion that material injustice is likely to be caused to a number of tenure-holders in g ving effect to the provisional Consolidation scheme............................and that a fair and proper allotment of land to the tenure holders of the units is not possible without revising the provisional Consolidation Scheme or getting a fresh one propared," it shall be lawful to revise the scheme. What is therefore meterial is that the Settlement Officer (Consolidation) must be of the opinion that material injustice is likely to be caused to a number of tenure-holders and that a fair and proper allotment of land is not possible, then in that event the provisional consolidation scheme may be set aside and prepared afresh. In other words, the Settlement Officer (Consolidation) must find that material injustice is likely to be caused to a number to tenure-holders in giving effect to the provisional consolidation scheme and further that a fair and proper allotment of land to the tenure-holders of the unit is not possible without getting a fresh one prepared. The power is of a wide amplitude. The power is of a wide amplitude. The power to set aside the entire scheme and order its preparation afresh would require satisfying the above two conditions and that there must be an order in writing giving reasons. 6. It is rare when the entire provisional consolidation scheme prepared by the Assistant Consolidation Officer or as prepared by the Consolidation Officer is set aside in toto. IT is only where the Settlement Officer (Consolidation) comes to the conclusion that material injustice is likely to be caused to a number of tenure- hodlers and that a fair and proper allotment of land is not possible in the unit without revising the entire scheme or preparing a fresh scheme that an order for the same can be passed. In the present case, the Settlement Officer (Consolidation) has given reason for doing so. The reasons are substantial. These reasons and the order of the Settlement Officer (Consolidation) clearly show that the Assistant Consolidation Officer had not only committed irregularities but had acted illegally as well, in preparing the provisional consolidation scheme. The Settlement Officer (Consolidation) has rightly observed that not only material injustice was likely to be caused to a number of tenure-holders but also that a fair and proper allotment of land to the tennre-holders was not possible. The Settlement Officer (Consolidation) therefore ordered the cancellation of the entire provisional consolidation scheme of the village and directed that the same be prepared afresh at the stage of the Assistant consolidation Officer after giving an opportunity to the tenure-holders of being heard if they filed objections to the valuation of Chaks made by the Assistant Consolidation Officer in the fresh proposal. There is no manner of doubt that the Deputy Director of Consolidation has the same power as the Settlement Officer (Consolidation) while hearing a revision under Sec. 48 of the Act. He can exercise the same powers as provided under Sec. 21(4) of the Act as given to the Settlement Officer (Consolidation). The argument that the Deputy Director of Consolidation has no such power is wholly misconceived. He can exercise the same powers as provided under Sec. 21(4) of the Act as given to the Settlement Officer (Consolidation). The argument that the Deputy Director of Consolidation has no such power is wholly misconceived. Section 48 makes it clear that the Deputy Director of Consolidation exercising the powers of the Director of Consolidation can call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings and after allowing the parties concerned an opportunity of being heard he is also empowered to make such order in the case or proceedings as he thinks fit. The Deputy Director of Consolidation while exercising the powers of Director of Consolidation in hearing a revision against an order of the Settlement Officer (Consolidation) can examine the orders of the Settlement Officer (Consolidation) and the Assistant Consolidation Officer to judge for himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any such order. 7. A perusal of the order of the Deputy Director of Consolidation shows that the Assistant Consolidation Officer had modified or changed the valuation of 175 plots and the changes were also substantial in some cases. These changes in valuation were done by the Assistant Consolidation Officer after the proceedings under Sec. 9 of the Act had taken place for which he had no jurisdiction. The Assistant Consolidation Officer proceeded to decide the objections which lay within the power of the Consolidation Officer. He, therefore, clearly exceeded his jurisdiction. The modifications or changes so made had no valid or legal effect. The Deputy Director of Consolidation observed that this alone was a ground for cancellation of the provisionsal consolidation scheme prepared by the Assistant Consolidation Officer and giving a direction for a fresh preparation of the provisional consolidation scheme for the entire unit. Secondly, the Deputy Director of Consolidation has observed that the Assistant Consolidation Officer had left the Backat land of the Gaon Sabha at various places in 18 sectors. The unit comprised of 19 sectors and he had left Bachat land at 36 places. Secondly, the Deputy Director of Consolidation has observed that the Assistant Consolidation Officer had left the Backat land of the Gaon Sabha at various places in 18 sectors. The unit comprised of 19 sectors and he had left Bachat land at 36 places. The Deputy Director of Consolidation correctly observed that this was prohibited under Paragraph 269 of the U. P. Jot Chakbandi Manual (Consolidation of Holdings Manual) which requires that Bachat land should be located preferably at not more than three places in the village. The Deputy Director of Consolidation also observed that Bachat land had been left at such places which would enable the adjoining Chak-holders to grab the same and it would not be possible to protect or to take full use of the same by the Gaon Sabha. He rightly observed that this act of the Assistant Consolidation Officer was against public interest and would lead to corruption. It was further stated that the total area had increased in respect of 115 plots than the area shown in the original and changing them at the stage of appeal was not feasible, for it would create further complication. He observed that it would affect not only those persons from whose Chak land was taken out but would also cause serious difficulty in adjusting the valuation of the Chak land. Indeed, this would be a stupendous task-revising the entire scheme at the appellate stage. The Deputy Director of Consolidation rightly observed that the Assistant Consolidation Officer while preparing Chaks enlarged Sector No. 3 and changed the boundaries of Sectors Nos. 2 and 3. This is clearly prohibited in the Chakbandi Manual. Paragraph 265 of the Manual also lays down that the Chaks of one Sector shall be prepared wholly and completely within that Sector. The Deputy Director of Consolidation correctly observed that the Assistant Consolidation officer had acted arbitrarily without caring for the provisions of the law and without giving effect to the consolidation maps prepared by the superior authorities and had violated the Rules, provisions of law and committed illegalities. 8. Having ; perused carefully the orders of the Settlment Officer (Consolidation) and the Deputy Director of Consolidation, I have not the least bit of doubt that in this case very appropriate orders have been passed for the re-framing of the provisional Consolidation Scheme after setting aside the one prepared by the Assistant Consolidation Officer. 8. Having ; perused carefully the orders of the Settlment Officer (Consolidation) and the Deputy Director of Consolidation, I have not the least bit of doubt that in this case very appropriate orders have been passed for the re-framing of the provisional Consolidation Scheme after setting aside the one prepared by the Assistant Consolidation Officer. The reasons given by both the authorities are not only sound but comply with all the requirements of Sec. 21 (4") of the Act. I see no manifest error of law in the impugned orders. An argument was raised that the petitioners were not heard at the revisional stage. In my opinion, that would hardly make any difference in the present case when irregularities and illegalities had been committed in such a large scale by the Assistant Consolidation Officer. Since the authorities were satisfied that material injustice was likely to be caused to a large number of tenure-holders and that a fair and proper allotment of land to the tenure-holders was not possible then the provisional consolidation scheme was liable to be set aside and in that event it was not necessary to hear each and every tenure-holder of the unit. What is material to be seen in such a case is whether substantial justice is being done or not. By setting aside the provisional consolidation scheme the interest of the petitioners was not being affected finally, but a fresh preparation of the provisional consolidation scheme would ensure and each one of them would have an opportunity of putting forth their objections or grievances if any. The impugned orders show that the authorities have acted in public interest and for the good of the tenure-holders. In my opinion, the contention of the learned counsel that there has been failure of the principles of natural justice is not made out, and on the contrary I am of the view that a grave and irreparable miscarriage of justice would have taken place if the provisional consolidation scheme had not been set aside. 9. For the reasons indicated above, this writ petition has no merits and must fail. It is accordingly dismissed with costs. Petition dismissed.