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2013 DIGILAW 533 (ALL)

Ram Bhajan and Others v. Deputy Director of Consolidation and Others

2013-02-13

ARVIND KUMAR TRIPATHI II

body2013
Arvind Kumar Tripathi (II), J.— (1) Heard Sri Chandra Has Mishra, learned counsel for the petitioners, opposite party no.1 is represented by learned Additional Chief Standing Counsel and Opposite Party No.3 is represented by Sri R.N. Gupta, Advocate. (2) This writ petition in the nature of certiorari has been filed to quash the impugned order dated 20.9.2011 passed by the Deputy Director of Consolidation Hardoi in Revision No. 291 under Section 48 of U.P. Consolidation of Holdings Act, 1953 (Vishal Vs. Ram Bhagan & Ors.). (3) It has been averred in the writ petition that petitioners are real brothers and are chakdar of nos.1111, 1112 and 902 respectively while opposite party no.2 Vishal son of Pirthi is Chakdar of No. 1465. Petitioners and Vishal son Pirthi have same original holdings of Gata No.2524 measuring area 0.130, 2637 measuring area 0.202, 2638 measuring area 0.190,2674 measuring area 0.190 and 2680 measuring area 0.304 situated in Village-Victoriyaganj, Pargana Gopamau, Tehsil and District-Hardoi and the share of the Vishal son of Prithi is 1/2 in said gatas while the share of the petitioners is 1/18 each and except above gatas, the petitioners also have one Gata No.2744 measuring area 0.190 having 1/9 share each. As per share of the petitioners, all the petitioners have the land measuring area 0.077 each including Gata No.2744 having valuation of 3.25 while the share of Vishal son of Prithi is 0.508 having valuation of 19.82. The dispute relates to Chak of Gatas No. 2524, 2637, 2638, 2674 and 2680, in which the Gata No.2674 is situated on road side and it is most valuable land. Vishal's share in Gata No.2674 is 0.95 Acre and the exchange ratio of the said Gata is 0.60 paisa, while the exchange ratio of Gata No.2680 is 0.50 paisa, Gata No.2524, 0.20 paisa each and Gata No.2637 and 2638, 0.20 paisa. The largest holding is in Gata No.2680 and as per share the petitioners are small tenure holders and as per mutual settlements the petitioners have possessed 1/2 area of Gata No. 2674 which is situated on road side. During the consolidation operation, A.C.O. has proposed and allotted the Chak to the petitioner no.1 on Gata No.2637 and 2638 total area of 0.153 Acre inspite of area of original holding 0.77 acre and did not allot the area in original holding Gata No.2674. During the consolidation operation, A.C.O. has proposed and allotted the Chak to the petitioner no.1 on Gata No.2637 and 2638 total area of 0.153 Acre inspite of area of original holding 0.77 acre and did not allot the area in original holding Gata No.2674. Gata Nos.2638 and 2639 area measuring 0.145 Acre was allotted to petitioner no.2. But, again area of Gata No. 2674 was not allotted to him. Likewise petitioner no.3 was allotted area 0.77 on Gata No.2524 and area of Gata No.2674 was also not allotted to the petitioner no.3. Feeling aggrieved petitioner nos. 1 and 2 preferred their objection before the Consolidation Officer under Section 21 (1) of C.H. Act vide Case No. 76 of 1997 but learned C.O. did not consider the matter from correct angle and passed orders on 14.12.2007 by which an area of .12 Acre from Gata No. 2637 of petitioner no.1 was ousted and the same area was given on Gata No. 2636 and similarly an area of 0.012 Acre from Gata No.2638 was ousted an area of 8 Acre was given in Gata No.2639. Feeling aggrieved petitioner no.1 and 2 preferred an appeal in the Court of Settlement Officer Consolidation, Hardoi vide appeal nos.540 and 541. Appeals were allowed, both the petitioner nos. 1 and 2 were allotted 0.015 Acre in Gata No.2674 each S.O.C. also gave an area of 0.015 Acre in Gata No.2674 to petitioner no.3 and an area of 0.0022 acre from Gata No. 2524 and 0.045 Acre from Gata No.2674 allotted to Vishal son of Prithi was ousted and its place an are of 0.108 Area was given to him on his original holding on Gata No.2638. As per share of Vishal his share in Gata No.2674 is 0.095 Acre while the A.C.O. has allotted almost entire area of 0.183 Acre and S.O.C. has also ousted only 0.045 Acre from Gata No.2674 and as such even now the area 0.138 acre is allotted to the Vishal son of Prithi. In revision no.291/10-11 D.D.C. Hardoi. As per share of Vishal his share in Gata No.2674 is 0.095 Acre while the A.C.O. has allotted almost entire area of 0.183 Acre and S.O.C. has also ousted only 0.045 Acre from Gata No.2674 and as such even now the area 0.138 acre is allotted to the Vishal son of Prithi. In revision no.291/10-11 D.D.C. Hardoi. D.D.C. Hardoi after hearing the parties and without considering the entire material facts, oral evidence allowed the revision vide order dated 25.01.2011 by amending the Chaks of the parties at C.O. stage by which the area of Gata No.2674 was ousted from the Chaks of the petitioners and it was given to Vishal just to give him undue benefit at the cost of petitioners a writ petition no.123 (Consolidation) of 2011 was filed and this court set aside the impugned order dated 14.02.2011 and remanded back the matter to the D.D.C. Hardoi. D.D.C. Hardoi, again after hearing both the parties allotted the revision on 20.9.2011 after giving new finding which was neither raised nor considered while passing previous order dated 25.1.2011. D.D.C. has given finding that the petitioners have sold their share in Gata No. 2674 and now they are trying to claim further by filing this writ petition. (4) Ram Prasad son of Vishal filed counter affidavit in which it has been mentioned that petitioners, who possessed 1/8 share in the land in question had already sold out their almost entire share in favour of Sri Mahesh Prasad S/o Gayadeen on 02.09.2002 through the registered sale deed and immediately after execution of the sale deed, the possession was handed over to the purchasers. After execution of the sale deed on 2.9.2002 no suit was filed till date for cancellation of the sale deed. The sale deed executed is registered document and on the basis of sale deed mutation was allowed. The Petitioners earlier preferred a writ petition no.123(Cons.) of 2011 before this Hon'ble Court against order dated 25.1.2011 but this fact was not placed before this Hon'ble Court as is evident from the order of this Hon'ble Court dated 14.02.2011. On the factum of execution of sale deed by petitioners on 2.9.2002 being placed before the Hon'ble Court and the previous writ petition certainly a question mark about competence of the petitioner to file the writ petition would have been raised. On the factum of execution of sale deed by petitioners on 2.9.2002 being placed before the Hon'ble Court and the previous writ petition certainly a question mark about competence of the petitioner to file the writ petition would have been raised. The area which petitioners sold in their Gata No. 2674 is not sufficient to put forth a claim in view of the Section 19(1)(e) of the U.P.C.H.Act. The D.D.C. on both the occasions, having found the force and legal support in the claim on the answering opposite party has rightly allowed revision in accordance with law on justified grounds in Gata No.2674 the deponent having 1/2 share the however the shares of petitioners were only 1/8,m 1/8 and 1/8 out of those shares they have sold out maximum portion. (5) Both the parties have put forth their arguments on the basis of their submission on writ petition and counter affidavit. (6) On the basis of record following facts are admitted. The share of the petitioners in Gata No. 2674 is 1/8, 1/8 and 1/8 the share of Vishal son of Prithi is 1/2 petitioners have sold maximum share in Plot No. 2674 in the year 2002 and by mutation the name of the purchaser has been incorporated. (7) In view of facts the matter has to be decided. A perusal of the Chaks allotted by SOC and by Settlement Officer Chakbandi, it is clear that Ram Bhajan and Raju Lal have filed an appeal on 22.11.2008, much after selling of their maximum share in Gata No. 2674. (8) Ram Bhajan son of Manohar was allotted a Chak on his original number, Raju Lal at this stage on his original number but, the S.O.C. Hardoi allotted a Chak on Gata No. 2674 for valuation of 0.90 paise and also Raju Lal and Mahipal on Chak Gata No. 2674 for a valuation of 0.015 and 0.015 D.D.C. has held that when the writ petitioners have sold their share and are trying to claim further in the land of same Gata. It was held that the persons having lessor share in Gata No.2674 have been granted Chak of 2674 while the person who was having 1/2 share in Gata No. 2674 was granted lessor share which is not proper and thus the D.D.C. has allowed the revision vider order dated 25.1.2011. It was held that the persons having lessor share in Gata No.2674 have been granted Chak of 2674 while the person who was having 1/2 share in Gata No. 2674 was granted lessor share which is not proper and thus the D.D.C. has allowed the revision vider order dated 25.1.2011. A writ petition was filed before this Court being Writ Petition No. 123/11 by Ram Bhajan & Another. This Court while deciding the writ petition has observed like that; "Petitioners are aggrieved by the order of D.D.C. dated 25.1.2011. Petitioners have stated that he had original holding on 2674 and 2638. They had their share in the said plots. They say that plot No.2674 is situated at roadside and it is valuable land. At the D.D.C. level they have been denied any portion of the land of 2674 and the opposite parties have been given the entire chak on the valuable land of 2674. This factual mistake can best be looked into by the D.D.C. No useful purpose will be served in keeping this matter pending here for technicalities. In the interest of speedy trial and affirmative action on the part of the judiciary, it will be expedient that the matter may be remanded back to the D.D.C. concerned, who shall decide the matter on merits after issuing notice and giving due opportunity to all the necessary parties. Therefore, the order dated 25.1.2011 passed by the opposite party No.1 as contained in annexure-1 to the writ petition are hereby set aside. The decision shall be taken by the D.D.C. concerned within a maximum period of two months from the date a certified copy of this order is placed before him. However, it is made clear that this order of remand has not been passed on merits. The D.D.C. shall apply his mind afresh on the facts of the case and shall be free to come to his own conclusion without being influenced by this order. " (9) In view of above direction matter was again remanded back to D.D.C. Hardoi, who after going through the directions of this Court decided the revision vide order dated 20.9.2911, it was again held that revisionist Vishal is having 1/2 share in Gata No. 2674 while Ram Bhajan was having 1/8 share and he is being allotted chak in excess and more than his share. It was further held that Ram Bhajan, Raju and Mahipal have also sold their land and the name of the purchasers have been mutated and thus Ram Bhajan has sold all his share in Gata No. 2674 finding this fact against natural justice against the provisions and Consolidation of Holdings Act the revisions was allowed. (10) Learned counsel for the petitioners has argued on the basis of the decision of this case Mohar Singh & Ors. Vs. Deputy Director Consolidation, Meerut & Ors. 2012 (115) RD 782, argued that they should be granted chak on roadside. (11) They have again relied upon a case of this Court Keshav Ram Vs. Deputy Director of Consolidation, Basti & Ors. 2012 (115) RD 719. (12) Relying upon a decision of the case Smt. Ram SaJi Vs. Deputy Director of Consolidation, Sultanpur 2010 (109) RD 745 and after also carefully going through the above decisions, it is clear that the principles in these decisions do not help the revisionist, who having sold their land to other persons and are again claiming chak on that portion by concealing the fact from this Court while they filed writ petition no.123 of 2011. Since the petitioners have obtained order dated 14.2.2011 by playing fraud on the Court, hence in view of the decision of the Apex Court S.P Chengalvaraya Naidu vs Jagannath LR & Ors. Reported in 1994 AIR Supreme Court, 853. Revisionists are not entitled to any relief. In the case of Smt. Uma Kumari Vs. Assistant Commissioner, Food & Civil Supply and 3 Ors. 2011 (29) LCD 1319 this court has held that a person aggrieved means a person who is wrongly deprived on his entitlement, which he has legally entitled to receive, person aggrieved, person aggrieved means a person who is injured or he is at this stage affected in a legal sense and in which he can file a writ petition. Since petitioners have sold their share in Gata No.2674, they are not aggrieved persons. Petitioners have no direct lis in the subject matter of the litigation. (13) In view of above, discussion above I do not find any illegality in the order passed by D.D.C. dated 20.9.2011. (14) In view of above, the writ petition is liable to fail and is hereby dismissed. _____________