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2014 DIGILAW 1212 (ALL)

Thamman Singh v. State of U. P.

2014-04-15

ANJANI KUMAR MISHRA

body2014
JUDGMENT Anjani Kumar Mishra,J. Heard the learned counsel for the parties. 2. This writ petition has been filed challenging the order dated 8.10.2009 passed by the Deputy Director of Consolidation in Revision No. 68 of 2009-10 whereby the order dated 24.12.2008 passed in an appeal filed by the contesting respondent has been affirmed. The petition arises out of proceedings for allotment of chaks. The petitioner is chak holder no. 83 while the respondent is holder of chak no. 24. The dispute relates to plot nos. 71 and 72 of village Lakhanpur, Tehsil Bisauli, District Badaun. 3. The Assistant Consolidation Officer proposed chak to the petitioner on plot nos. 71 and 72 on the Northern side of plot no. 71. Thus the chak proposed to the petitioner was on his original holding as the petitioner is the original holder of plot no. 71, area 0.607 hectares while he had half share in plot no. 72 having an area 0.32 hectares. 4. The petitioner filed an objection under Section 20 (1) of the U.P. Consolidation of Holdings Act on the ground that prior to start operations he was in possession over the southern portion of the said two plots but the Assistant Consolidation Officer proposed a chak on the northern side and hence the objection. 5. The Consolidation Officer by his order dated 10.11.2008 allowed the objection shifting the petitioner to the southern side of plot nos. 71 and 72. The only reason for making the said adjustment as recorded by the Consolidation Officer was that it was "Nyay Sangat". 6. Aggrieved by this order the contesting respondent preferred an Appeal No. 367 which was barred by time. The Settlement Officer, Consolidation Officer condoned the delay in filing the appeal, allowed the same and restored the position as existing at the ACO stage. The appeal was allowed on the ground that the petitioner had been allotted an area greater than his original holding on the spot. 7. The petitioner's revision no. 681 of 2009-10 challenging the order of the Settlement Officer, Consolidation was dismissed on 8.10.2009. 8. Against the revisional order the petitioner preferred a recall application accompanied by an application for condonation of delay. The delay was condoned and after re-hearing the parties, the revision was allowed by the order dated 25.3.2011, which order was challenged by the contesting respondent by means of a Writ Petition no. 8. Against the revisional order the petitioner preferred a recall application accompanied by an application for condonation of delay. The delay was condoned and after re-hearing the parties, the revision was allowed by the order dated 25.3.2011, which order was challenged by the contesting respondent by means of a Writ Petition no. 22643 of 2011 on the ground that the earlier order dated 8.10.2009 had been passed after hearing the parties and hence the Deputy Director of Consolidation had reviewed his earlier order, which was wholly without jurisdiction. 9. The writ petition filed by the contesting respondent was allowed by this court vide order dated 8.10.2009 and the revisional order dated 25.3.2011 was set aside. It is thereafter that the instant writ petition has been filed challenging the order dated 8.10.2009 which stood revived in view of the order passed of this court. 10. I have heard the learned counsel for the parties and have perused the record. 11. From the submissions made by the learned counsel for the petitioner as also from the perusal of the averments and grounds in the writ petition it emerges that the writ petition has been filed on the ground that the order of the Deputy Director of Consolidation is illegal, arbitrary, based on surmises and has been passed without making any spot inspection. It is also averred that the Settlement Officer, Consolidation wrongly condoned the delay in filing the appeal. During the augments, the learned counsel for the petitioner has also sought to rely upon the order dated 25.3.2011 to show that the impugned order dated 8.10.2009 deserves to be set aside. 12. The submission of the learned counsel for the petitioner that the impugned order is illegal and arbitrary and is based on surmises is altogether vague. He has failed to demonstrate as to why the impugned order is illegal, arbitrary and based on surmises. As regards the submission that the Deputy Director of Consolidation has passed the order without making a spot inspection, it would suffice to record that there is no material or even an averment on record which would indicate that any prayer for spot inspection was made before the Deputy Director of Consolidation. 13. As regards the submission that the Deputy Director of Consolidation has passed the order without making a spot inspection, it would suffice to record that there is no material or even an averment on record which would indicate that any prayer for spot inspection was made before the Deputy Director of Consolidation. 13. It is settled law that in so far as the Consolidation Officer and the Settlement Officer Consolidation are concerned, orders have to be passed by them in chak proceedings only after making a spot inspection but in so far as the Deputy Director of Consolidation is concerned, it is not mandatory under law for him to make a spot inspection prior to deciding chak revisions. It becomes incumbent upon the Deputy Director of Consolidation to make a spot inspector only when an application in this regard is filed by he either of the parties. The Deputy Director of Consolidation after considering the application may either reject it or may allow the same and make a spot inspection whereupon it is mandatory that he prepare an inspection memo and thereafter decide the revision only after providing an opportunity of hearing to the parties, subsequent to the spot inspection. He may also hear the parties at the time of the spot inspection itself. As already recorded herein above, there is no material on record to show that any application requiring the Deputy Director of Consolidation to make a spot inspection was ever filed. Under the circumstances, there is no illegality in the order impugned even if the same has been passed without making a spot inspection and the submission in this regard made by the learned counsel for the petitioner is not tenable. In so far as reliance upon the reasoning given in the judgment dated 25.3.2011 is concerned, the same is entirely misplaced because the said order no longer stands on record, having been quashed by this court by the order dated 20.4.2011 passed in writ petition no. 22643 of 2011. This order has been passed on the ground that the Deputy Director of Consolidation does not have the power to review his orders. Thus reliance is sought to be placed by learned counsel for the petitioner on an order which was without jurisdiction and has therefore already been quashed. 14. 22643 of 2011. This order has been passed on the ground that the Deputy Director of Consolidation does not have the power to review his orders. Thus reliance is sought to be placed by learned counsel for the petitioner on an order which was without jurisdiction and has therefore already been quashed. 14. The Deputy Director of Consolidation in the impugned order has recorded that the order passed by the Consolidation Officer in favour of the petitioner was passed without any spot inspection and was contrary to the spot position. This illegality was corrected by the Settlement Officer, Consolidation and a chak was allotted to the petitioner according to and in the light of the possession of the parties on the spot prior to the start of consolidation operations. A chak was carved out by the appellate authority, incorporating within it, land belonging to others to make it rectangular and as such the said allotment / modification caused no injury to the petitioner. The revision therefore was found to be without merits and was dismissed. 15. The learned counsel for the petitioner has not been able to point out any illegality in the impugned judgments. The submissions made have already been considered by me and have been found to be without force. No other illegality could be pointed out and therefore, in my considered opinion, the orders impugned call for no interference. 16. Accordingly, the writ petition deserves to be dismissed and is hereby dismissed. However there will be no order as to costs.