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2011 DIGILAW 730 (ALL)

LALI DEVI v. DIRECTOR OF CONSOLIDATION, AZAMGARH

2011-03-24

A.P.SAHI

body2011
JUDGMENT Hon’ble A.P. Sahi, J.—This writ petition raises a grievance about allotment over plot No. 1753 which is the original holding of the petitioner, the respondent No. 4 and respondent No. 5. The contest is with the respondent Nos. 2 and 3 who have also been allotted the said plot alongwith their original holding of Plot No. 1752. 2. The allotment of chaks came to be finalized by the order of the Consolidation Officer on 30th January, 2009. Aggrieved by the said order the petitioner filed an appeal. The petitioner took a ground that the allotment of Plot No. 1753 to respondent Nos. 2 and 3 is illegal without making any spot inspection, inasmuch as, it is a road side land and the entire holding of the petitioner should have been retained in her chak. The width of the petitioner’s chak has been considerably reduced on the frontage of road side. 3. It was further contended by the petitioner that the partial retention has reduced the lengthwise half share of the petitioner on road side. The submission is that the total length of the land on the road side is 80 Lathas and the petitioner being half share holder should have been allotted the land of the width of 40 Lathas on road side. This has been reduced under the orders of the Consolidation Officer to less than half and accordingly the appeal was filed with the aforesaid grounds. 4. The appeal was dismissed on 27.5.2009, against which the petitioner filed a revision. The Deputy Director of Consolidation allowed the revision on 18.12.2009 clearly observing that the authorities were not justified in making the allotment without making a spot inspection and without taking into account the relevant Government Orders which prescribe that special care should be taken for retaining road side land with the original tenure holder. 5. Upon remand the petitioner’s appeal was allowed by the Settlement Officer Consolidation on 23rd August, 2010 whereby the width of the allotted land to the petitioner was increased and a further direction was issued that an area of 722 karis shall be treated to be outside consolidation operations. 6. The contesting respondents filed a revision which has been allowed on 28th January, 2011 holding that the appellate authority while deciding a chak appeal, travelled beyond his jurisdiction to demarcate a particular area of the plot to be outside consolidation proceedings. 6. The contesting respondents filed a revision which has been allowed on 28th January, 2011 holding that the appellate authority while deciding a chak appeal, travelled beyond his jurisdiction to demarcate a particular area of the plot to be outside consolidation proceedings. It was further indicated that the land was besides a village lane having been dressed with bricks and was not a State Highway or P.W.D. Road, as such the land did not have any commercial value. The Deputy Director of Consolidation further held that the appeal filed by the petitioner was time barred and without condoning the delay and without their being any order allowing a Section 5 application, the appeal had been wrongly entertained. It was further held that the revisionists had not been heard and hence allowed the revision and set aside the order of the Settlement Officer Consolidation. The position existing under the order of the Consolidation Officer dated 30th January 2009 was restored. Aggrieved the petitioner is before this Court. 7. Learned counsel for the petitioner Sri Raj Karan Yadav submits that the road side land of the petitioner could not have been allocated to someone else and the revisional authority has acted in contravention of the law laid down in the case of Ram Prasad v. Deputy Director of Consolidation, Allahabad and others, 2006 (100) RD 434. He further submits that the petitioner being half share holder of the Plot No. 1753, she was entitled to the width of half of the road side frontage of the plot which had been adjusted by the Settlement Officer Consolidation. It is further submitted that the order of the Consolidation Officer had been rightly set aside. On the issue relating to delay, learned counsel submits that the revision of the petitioner filed earlier on 18th December, 2005 had been allowed which remand order had become final and therefore the question of delay which has now been made the basis for allowing the revision is irrelevant. 8. It is further submitted that even if the Deputy Director of Consolidation was satisfied that the respondent Nos. 2 and 3 required an opportunity to be heard then at the best the matter could have been remitted for a hearing or even otherwise the issue relating to the claim of the petitioner for road side land should have been taken into consideration in correct perspective. 2 and 3 required an opportunity to be heard then at the best the matter could have been remitted for a hearing or even otherwise the issue relating to the claim of the petitioner for road side land should have been taken into consideration in correct perspective. That having not been done, the impugned order is vitiated and deserves to be set aside. A supplementary affidavit has been filed bringing on record the chak map explaining the position as urged on behalf of the petitioner. 9. Learned counsel for the respondents submits that after the chaks were allocated, the parties have installed their tube-wells and if the same is disturbed as claimed by the petitioner she would be encroaching over the shares of contiguous tenure holders namely the respondent Nos. 4 and 5. It is in order to adjust all equities that the Deputy Director of Consolidation has passed the order. 10. Learned counsel further submits that the Settlement Officer Consolidation had no authority in law to declare part of the land to be outside consolidation proceedings keeping in view the bar of Section 11-A of the U.P. Consolidation of Holdings Act, 1953 as interpreted by this Court in the case of Smt. Kiran Devi v. Deputy Director of Cosnolidation, Ghaziabad and others, 2008(4) ADJ 28 . 11. Learned counsel submits that the land is not of a commercial value and therefore the applicability of the Government Orders for protecting road side land would not applicable in the present controversy. It is further submitted that the appeal which had been filed by the petitioner was time barred, which aspect has also not been looked into by the Settlement Officer Consolidation and therefore the Deputy Director of Consolidation was justified in reversing the appellate order. Learned counsel submits that substantial justice has been done between the parties and any further claim as made by the petitioner would disturb the entire allotment proceedings. 12. Having heard learned counsel for the parties, the issue relating to the bar of Section 11-A has been settled by a large number of decisions and the said consistent of view has been followed in Smt. Kiran Devi (supra). In view of this the conclusion drawn by the Deputy Director of Consolidation that the Settlement Officer Consolidation had no jurisdiction to declare the land to be outside consolidation operations may be correct on first principles. 13. In view of this the conclusion drawn by the Deputy Director of Consolidation that the Settlement Officer Consolidation had no jurisdiction to declare the land to be outside consolidation operations may be correct on first principles. 13. Nonetheless once the land has been valued and has been made subject of allotment, then the next question arises is, should the land belonging to the petitioner which was her original holding be allotted to someone else. On this score the judgment relied upon by the leaned counsel for the petitioner fully supports her case. The land of Plot No. 1753 is the original holding of the petitioner and therefore she was entitled to half share which has been allotted her. However, while allotting the same the Consolidation Officer instead of giving her the width of road side frontage to which she was entitled, reduced the same. In such circumstances the Settlement Officer Consolidation was fully justified in reversing the order of the Consolidation Officer. The allotment to the original tenure holder has to be protected if it is road side land. 14. In the instant case the Deputy Director of Consolidation states that the land did not have any commercial value as it is not besides the State Highway. Be that as it may, if a lane exists inside a village, and the location of one’s house is besides a lane then the same is of considerable importance. It is not uncommon that land besides road side or bye lanes have attained a higher value than the land which is far away exclusively meant for agriculture purposes. The conclusion drawn by the Deputy Director of Consolidation for setting aside the order of the Settlement Officer Consolidation therefore does not fall in conformity with law. The Deputy Director of Consolidation should have taken notice of the fact that the order by the Settlement Officer Consolidation had been passed after making spot inspection. 15. During the course of arguments learned counsel for the respondent Nos. 2 and 3 urged that they are prepared to retain the original holding over Plot No. 1752. 16. Learned counsel for the petitioner points out that the said Plot No. 1752 is also enclosed on the East and West side by chak roads, and therefore, the Plot No. 1752 also has road side access. 17. 2 and 3 urged that they are prepared to retain the original holding over Plot No. 1752. 16. Learned counsel for the petitioner points out that the said Plot No. 1752 is also enclosed on the East and West side by chak roads, and therefore, the Plot No. 1752 also has road side access. 17. Keeping in view the aforesaid submissions advanced and the facts that emerge from the submissions raised as well as from a perusal of the chak map which has been filed alongwith the supplementary affidavit, the writ petition is partly allowed setting aside the order dated 28.1.2011 with a direction to the Deputy Director of Consolidation to pass a fresh order in the light of the observations made herein above within a period of three months from the date of presentation of a certified copy of this order before him. 18. The writ petition is partly allowed. —————