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2013 DIGILAW 3009 (ALL)

Akbal v. Additional District Magistrate

2013-12-11

RAM SURAT RAM (MAURYA)

body2013
JUDGMENT Ram Surat Ram (Maurya), J. Heard Sri Arun Kumar, for the petitioners and Sri M.D. Mishra for the contesting respondents. 2. The writ petition has been filed against the order of Additional District Magistrate/Deputy Director of Consolidation (respondent-1) dated 30.09.2013, passed in chak allotment proceedings, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute between the parties is for allotment of plots 974, 975 and 976, in their chaks. Assistant Consolidation Officer proposed a chak to petitioners-1 to 3 (chak 14), in which some portion i.e. plots 974 (area 0.001 hectare), 975 (area 0.002 hectare) and 976 (area 0.001 hectare) were allotted. Faujdar (now represented by respondents-3 to 6) (chak 508) was proposed a chak on plots 974 (area 0.014 hectare), 975 (area 0.091 hectare) and 976 (area 0.062 hectare) (total area 0.167 hectare). The petitioners did not file any objection against their proposed chaks. The objections were filed against the proposed chaks of Faujdar. The Consolidation Officer by order dated 29.11.2004 decided the chak objections of the village. Four chak appeals were filed from the order of Consolidation Officer, dated 29.11.2004. Assistant Settlement Officer Consolidation, by order dated 31.08.2006, decided these appeals. By this order, plots 974 (area 0.014 hectare), 975 (area 0.091 hectare) and 976 (area 0.062 hectare) (total area 0.167 hectare of total valuation Rs. 13.36) was taken out from the chak of Faujdar and left as bachat land. 4. Faujdar (chak holder 508), filed a revision (registered as Revision No. 685/448), from the order dated 31.08.2006. Two other revisions were also filed against the order dated 31.08.2006. The petitioners filed a time barred revision (registered as Revision No. 52) on 23.03.2007, claiming that bachat land left on plots 974, 975 and 976 be allotted in the chak 14 of petitioners-1 to 3 and chak 467 of petitioner-4. The petitioners filed an application dated 31.08.2007, under Rule 65 (1-A), before Additional Collector (F & R), to call for the record of Revision No. 52, from the court of Deputy Director of Consolidation and decide it. Additional Collector (F &R) recalled the record of Revision No. 52, from the court of Deputy Director of Consolidation and allowed it, by order dated 25.01.2008 and allotted plots 974, 975 and 976 (total area 0.167 hectare) in the chak of petitioners-1 to 3 (chak 14). Additional Collector (F &R) recalled the record of Revision No. 52, from the court of Deputy Director of Consolidation and allowed it, by order dated 25.01.2008 and allotted plots 974, 975 and 976 (total area 0.167 hectare) in the chak of petitioners-1 to 3 (chak 14). Later on, an application for correction was moved, which was allowed by Additional Collector (F &R) by order dated 26.03.2008. By the amendment chart attached to the order dated 26.03.2008, plots 974 and 975 were allotted in the chak of Smt. Azarunnisha (petitioner-4) (chak 467) and plot 976 was allotted in the chak of petitioners-1 to 3 (chak 14). 5. On coming to know about the order dated 25.01.2008, the respondents filed an application dated 30.05.2008, for recall of the orders dated 25.01.2008 and 26.03.2008. The recall application was heard by the Collector/District Deputy Director of Consolidation, who by order dated 17.06.2011, recalled the orders dated 25.01.2008 and 26.03.2008 and transferred the revision of the petitioners before Deputy Director of Consolidation for decision along with other chaks revisions pending before him. The revisions were consolidated and heard by Additional District Magistrate/Deputy Director of Consolidation, who by order dated 30.09.2013 held that plots 974, 975 and 976 situated near the school of the respondents in plot No. 1640 and 1641 as such it is more appropriate to allot these plots in the chak of the respondents. On these findings, revision of the respondents was allowed and plots 974, 975 and 976 were allotted in the chak of the respondents (chak 508) and revision of the petitioner was dismissed. Hence, this writ petition has been filed. 6. The counsel for the petitioners submitted that the object of the consolidation is to allot a compact area of the chak to the tenure holders, in lieu of their scattered plots. The petitioners have been allotted one chak, taking some area of plots 974, 975, 976 etc. When bachat land was left on plots 974, 975 and 976, the petitioners filed revision before Deputy Director of Consolidation for allotment of the bachat land in their chak at this place so that their two scattered chaks be abolished and compact area of the chak is allotted to them at one place. In case, the demand of the petitioners is accepted then one chak of petitioner-1 to 3 and one chak of petitioner-4 will be deleted. In case, the demand of the petitioners is accepted then one chak of petitioner-1 to 3 and one chak of petitioner-4 will be deleted. Settlement Officer Consolidation, in his order dated 31.08.2006 held that Faujdar was allotted an uran chak on plots 974, 975 and 976, long away from his village. Deputy Director of Consolidation again illegally allotted these plots in the chak of Faujdar, on the ground that it is near to their school. The school was constructed during chak allotment proceedings as such no benefit can be given to him for this reason. In any case, the school is situated on plots 1640 and 1641 at a long distance on the other side of pacca road. The chak on plots 974, 975 and 976 cannot be used for the purposes of the school but it will be used by him for cultivation. On the pretext of the school, the respondents secured the chak on these plots, although there was no justification for allotment of these plots in their chak as held by Settlement Officer Consolidation. The order of Deputy Director of Consolidation is based upon irrelevant consideration and ignoring the relevant consideration. The order of Deputy Director of Consolidation is illegal and is liable to be set aside. He relied upon the judgments of this Court in Mustafa Ali Vs. DDC and others, 1967 RD 149 (DB), in which it has been held that confirmation of provisional consolidation scheme does not affect the jurisdiction of Deputy Director of Consolidation to carve out the chak. Chandra Pal Singh Vs. Prem Dutt Rai, 1980 RD 123, in which it has been held that allotment of a compact area at the place, where tenure holder holds largest part of his holdings or his private source of irrigation should be as a matter of rule and any departure from it should be by way of exception. Punnoo Vs. DDC and others, 1996 (Supple.) RD 454, in which it has been held that failure of Deputy Director of Consolidation to advert the grievances of the petitioner, is an illegality in his judgment. Mohd. Kallu Vs. DDC and others, 2002 (93) RD 206 , in which it has been held that Deputy Director of Consolidation can reallocate the chak. Ram Kumar Vs. Mohd. Kallu Vs. DDC and others, 2002 (93) RD 206 , in which it has been held that Deputy Director of Consolidation can reallocate the chak. Ram Kumar Vs. Ziladhikari, 2002 (93) RD 403 , in which it has been held that during chak allotment proceedings, land of the categories enumerated under Section 132 of U.P. Act No. 1 of 1951 can be allotted. Nathunee Vs. DDC and others, 2005 (98) RD 92 , in which it has been held that consolidation authorities should not pass order in chak allotment proceedings without application of mind. Sudarshan Yadav Vs. DDC and others, 2006 (100) RD 678 , in which it has been held that power of Deputy Director of Consolidation is very wide who can consider all the grievance and situation while deciding the revision. 7. I have considered the arguments of counsel for the parties and examined the record. 8. Plots 974, 975 and 976 were proposed in the chak of Faujdar from the stage of Assistant Consolidation Officer. The petitioners did not file any objection or appeal, claiming for allotment of plots. 974, 975 and 976 in their chak. After the order of Settlement Officer Consolidation dated 31.08.2006, when plots were left as bachat then they filed a revision for allotment of these plots in their chaks. In such circumstances, the claim of the petitioners for allotment of these plots was on the contingency of the plots being left as bachat land while the claim of the respondents was from very beginning. 9. Admittedly, plot nos. 974, 975 and 976 were initially allotted in the chak of Faujdar, now represented by respondents-3 to 6. By the order of Settlement Officer Consolidation, the chak of Faujdar has been deleted from these plots. However Faujdar filed a revision, against the order dated 31.08.2006, which was pending before Deputy Director of Consolidation, as such, the reserving these plots as bachat land was not final. In such circumstances, the suitability for allotment of land to Faujdar has to be examined by Deputy Director of Consolidation, who by the impugned order found that as the school of the respondents was existing on plots 1640 and 1641 as such balance of convenience lies in their favour, to allot these plots in their chak, which was near to their school. 10. 10. So far as the suitability/entitlement for allotment of chak on these plots is concerned, Deputy Director of Consolidation found that school of the respondents was situated near this plot, as such, it was found that in case they were allotted chak on these plots, it would be more beneficial for the purposes of the school. The counsel for the petitioners submitted that the school is situated on plots 1640 and 1641 at a long distance on the other side of pacca road. The chak on plots 974, 975 and 976 cannot be used for the purposes of the school but it will be used by them for cultivation. A chak map has been filed as Annexure-6 to the writ petition, which shows in between plots 974 etc and road only one chak i.e. chak 876 is existing and on the other side of the road, after one plot, plot 1640 is existing thus argument that there was long distance between plot 1640 and 974 is not correct. 11. So far as the rulings relied upon by the counsel for the petitioners are concerned, these cases elaborated the principles of Section 19 for allotment of chaks on the largest part of holding or the vicinity of the plots, where private source of irrigation was existing. It is not denied that the petitioners have not been allotted chak on the largest part of their holding. The claim of the petitioners is only for a further area of their two other chaks also at this place. As such, the principle of Section 19 has not been violated. The petitioners, who were allotted chaks at other places, were satisfied and did not file any objection or appeal for deleting those chaks and allotting plot nos. 974, 975 and 976 in their chak, as such, in case these plots are not allotted to them, then they will not suffer any material prejudice. In such circumstances, Deputy Director of Consolidation found that allotment of these plots in the chak of the respondents was more suitable. It is well settled that Superior Court should not set aside the order of sub-ordinate court only for the reason that other view is also possible. 12. In view of the aforesaid discussion, no interference is required by this Court. The writ petition has no merit and is dismissed.