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2014 DIGILAW 1075 (ALL)

Phool Badan v. Consolidation Officer

2014-04-02

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J. Heard Sri Shyam Krishna Gupta, for the petitioner and Sri Rahul Sahai, for the contesting respondents. 2. The writ petition has been filed for quashing the order of Consolidation Officer dated 16.01.2014, recalling the order dated 12.08.2008 passed in proceeding under Rule 109-A of UP Consolidation of Holdings Rules, 1954. 3. Plot 139 (area 0.178 hectare) of village Kumhaila, pargana and district Ballia was the original holding of Rama Shankar, father of the petitioner. During consolidation, valuation of this plot was determined and reserved for extension of abadi and khalihan. Rama Shankar was allotted chak on plot 30 of its valuation. The Consolidation Officer by order dated 18.10.1995 made some change in the chak of Rama Shankar and allotted him chak on plots 28, 30 and 34. Rama Shankar filed an appeal under Section 11 of the Act, challenging determination of the valuation of plot 139. Kalika (respondent-2) filed another appeal from the order of Consolidation Officer in chak allotment matter, which were decided on the basis of compromise between the parties by Settlement Officer Consolidation, by order dated 10.06.1996. 4. Up-Pradhan of the village filed a revision from the aforesaid order, which was allowed by Deputy Director of Consolidation, by order dated 24.09.1999. The petitioner filed a recall application. In the meantime time one Indradev filed a revision against the order of Consolidation Officer, stating therein that a part of plot 139 was 'dev-sthan' and its valuation has been wrongly determined. Deputy Director of Consolidation by order dated 30.07.2003 allowed the recall application of the petitioner and recalling the order dated 24.09.1999, dismissed both the revisions filed by Up-Pradhan and Indradev. Thereafter, one Ayodhya filed a review application, which was allowed by Deputy Director of Consolidation by order dated 18.07.2005. The petitioner filed Writ Petition No. 53930 of 2005, which was allowed by judgment dated 20.05.2007 and order of Deputy Director of Consolidation, dated 18.07.2005 was quashed. 5. Then the petitioner filed an application under Rule 109-A for giving effect to the order of Settlement Officer Consolidation as upheld by Deputy Director of Consolidation by order order dated 18.07.2005 and High Court by order dated 20.05.2007. The Consolidation Officer by order dated 12.08.2008 allowed the application of the petitioner and allotted a chak him. 6. 5. Then the petitioner filed an application under Rule 109-A for giving effect to the order of Settlement Officer Consolidation as upheld by Deputy Director of Consolidation by order order dated 18.07.2005 and High Court by order dated 20.05.2007. The Consolidation Officer by order dated 12.08.2008 allowed the application of the petitioner and allotted a chak him. 6. In the meantime, Sub-Divisional Officer allotted the land of plots 28, 30 and 34, which were allotted in the chak of the petitioner to landless persons on 28.07.2007. The petitioner filed a Civil Contempt Petition No. 3627 of 2007 and also filed an application under Section 198 (4) of U.P. Act No. 1 of 1951 for cancellation of the pattas. On the notice being issued in the contempt petition, the pattas were cancelled. The allottee namely Maina Ram filed an appeal from the order dated 12.08.2008, which was allowed by Settlement Officer Consolidation by order dated 23.10.2008. The petitioner filed a revision against the order dated 23.10.2008, which was allowed by Deputy Director of Consolidation, by order dated 28.07.2009. Maina Ram filed Writ Petition No. 47109 of 2009 from the aforesaid order, which was dismissed on 04.09.2009. An application has been filed for modification of order dated 04.09.2009, which was rejected of by order dated 21.10.2009, observing that in case, allotments were valid then, then the allottees be given other land of Gaon Sabha. 7. On the basis of the aforesaid observation, an application was filed before Additional Collector in the proceedings under Section 198 (4) of U.P. Act No. 1 of 1951. Additional Collector, by order dated 03.12.2011, directed Sub-Divisional Officer to make fresh allotment of other land to the allottees. Maina Ram filed another appeal (registered as Appeal No. 60 of 2011-12) from the order dated 12.08.2008, which was dismissed by Settlement Officer Consolidation by order dated 24.07.2012. Maina Ram filed a revision (registered as Revision No. 851 of 2012-13) against the order dated 24.07.2012, which was dismissed by Deputy Director of Consolidation, by order dated 17.07.2013. Then the petitioner filed an application for demarcation of his chak and delivery of possession. 8. Now Kalika Prasad (respondent-2) filed an application before Consolidation Officer for recall of the order dated 12.08.2008. Then the petitioner filed an application for demarcation of his chak and delivery of possession. 8. Now Kalika Prasad (respondent-2) filed an application before Consolidation Officer for recall of the order dated 12.08.2008. It has been stated by Kalika Prasad that under the order of High Court, Rama Shankar has to be allotted chak of his valuation on some other bachat land but by the exparte order dated 12.08.2008, he got his chak on plot 28, which was allotted to him and his chak has been disturbed without any notice to him. The Consolidation Officer heard the recall application and by the impugned order dated 16.01.2014 held that by the order dated 12.08.2008, chak of Kalika Prasad was affected as such Kalika Prasad ought to have been impleaded as opposite party and ought to have been heard before passing the order. As neither notice was issued nor Kalika Prasad was heard before passing the order as such delay in filing the recall application was liable to be condoned and recall application was liable to be allowed. Allegation that Kalika Prasad had knowledge of the proceedings was not believed. On these findings recall application was allowed. Hence this writ petition has been filed. 9. The counsel for the petitioner submits that Kalika Prasad had already compromised the dispute with the petitioner before Settlement Officer Consolidation and on the basis of compromise the appeals were decided by order dated 10.06.1996. Kalika Prasad never challenged the order dated 10.06.1996. Kalika Prasad had knowledge of the various proceedings taken by Indradev, Up-Pradhan and Maina Ram as well as order dated 12.08.2008 but he never appeared before any Court. When the persons set up him have lost from all the Courts then Kalika Prasad malafide filed recall application. Kalika Prasad was not aggrieved by the order dated 12.08.2008 and the recall application has been illegally allowed. 10. I have considered the arguments of the counsel for the parties and examined the record. Admittedly Kalika Prasad was neither impleaded as opposite party in the application filed by the petitioner under Rule 109-A nor any notice has been issued to him before passing the order dated 12.08.2008. 10. I have considered the arguments of the counsel for the parties and examined the record. Admittedly Kalika Prasad was neither impleaded as opposite party in the application filed by the petitioner under Rule 109-A nor any notice has been issued to him before passing the order dated 12.08.2008. Allegations of Kalika Prasad was that under the previous orders, Rama Shankar had to be allotted chak of his valuation on some other bachat land but by the exparte order dated 12.08.2008, plot 28, which was allotted to him, has been allotted to Rama Shankar. By the order of Settlement Officer Consolidation dated 10.06.1996, valuation of plot 139, original holdings of the petitioner was varied, which required fresh adjustment of the chak of the petitioner. The Consolidation Officer, by the impugned order dated 16.01.2014 found that by the order dated 12.08.2008, chak of Kalika Prasad was affected as such Kalika Prasad ought to have been impleaded as opposite party and ought to have been heard before passing the order. As neither notice was issued nor Kalika Prasad was heard before passing the order, as such, delay in filing the recall application was liable to be condoned and recall application was liable to be allowed. Findings recorded by Consolidation Officer in this respect could not be challenged by the petitioner. 11. Allegations that Kalika Prasad had notice of the order dated 12.08.2008 from very beginning was disbelieved. Up-Pradhan and Indradev were contesting the matter on ground that land of plot 139 was the land of 'dev-sthan' and ought to have been left as chak-out. Maina Ram was contesting on the ground that plots 30 and 34 were allotted to him and others by Land Management Committee, after its being left as bachat land. Kalika Prasad is contesting the matter on a different ground that plot 28 was allotted in his chak and has been illegally allotted to the petitioner by order dated 12.08.2008. Thus contest by the various parties was adverse to each other. No presumption can be raised that they were colluding as they were claiming their interest. In the absence of any notice being served upon Kalika Prasad from any Court, no inference can be made that he had knowledge of the proceedings. Thus the impugned order does not suffer from any illegality. 12. In view of the aforesaid discussions, the writ petition has no merit and is dismissed. In the absence of any notice being served upon Kalika Prasad from any Court, no inference can be made that he had knowledge of the proceedings. Thus the impugned order does not suffer from any illegality. 12. In view of the aforesaid discussions, the writ petition has no merit and is dismissed. However as the matter is lingering from a long time and the petitioner who is a small tenure holder has not been able to get possession over his chak due to various litigations although chak allotment proceedings were confirmed in the year 1996, the Consolidation Officer is directed to decide the matter expeditiously preferably within a period of four months from the date of producing a certified copy of this order before him, after hearing the parties in accordance with law.