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2015 DIGILAW 132 (ALL)

Kalpu v. Additional Collector Land Revenue/DDC

2015-01-19

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Subhash Chand Yadav, for the petitioners and Sri P.N. Kushwaha, for respondents-2 to 6. The writ petition has been filed against the order of Deputy Director of Consolidation dated 14.11.2014, passed in chak allotment proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act'). 2. Plots 4 (area 0.2477 hectare) and 79/3 (area 1.1153 hectare) of village Bijhari, tahsil Saidpur, district Ghazipur were original holdings of the petitioners. Assistant Consolidation Officer proposed two chaks to the petitioners, (chak-13) i.e. first chak was proposed on plots 76/1, 79/3, 79/4, 83 and 84 of the area of 1.2759 hectare and second chak on plots 77/2 and 77/4 of the area of 0.1501 hectare. Plots 76/1 (area 1.4049 hectare), 76/2 (area 0.6323 hectare), 79/1 (area 0.5730 hectare) and 79/2 (area 1.5813 hectare) were original holdings of Subedar and others (respondents-2 to 6), (chak-322), who were proposed one chak on plots 76/1, 76/2, 77/1, 77/2, 77/3, 79/1, 79/1 and 79/3 of area of 4.1510 hectare. Plots 1 (area 0.1792 hectare), 77/1 (area 0.6228 hectare), 292 (area 0.0510 hectare), 293 (area 0.1510 hectare), 736 (area 0.5230 hectare), 737 (area 0.5230 hectare) and 742 (area 0.1070 hectare) were original holdings of Satiram and others (respondents-7 to 11) (Chak-328) who were proposed two chaks, i.e. first chak was proposed on plots 77/1, 77/2 and 77/3 of the area of 0.8115 hectare and second chak was proposed on plots 311, 313 and 314 of area of 0.1710 hectare. 3. Plot 77 is a roadside land. Plot 78/2 is abadi land where the petitioners and respondents-2 to 6 were having their houses as well as pumping set. Subedar and others (respondents-2 to 6) filed an objection under section 20 of the Act, claiming for allotment of chak on their original holding of plot 76/1 and for deleting plot 79/3 from their chak. Another objection was filed by Satiram and others (respondents-7 to 11) claiming for allotment of entire area of plot 77 in their chak. The Consolidation Officer consolidated the chak objections and by his order dated 11.4.2009, shifted the first chak of the petitioners towards south by taking out plot 76 from their chak and allotted plot 79/3 in their chak and northern portion i.e. 76 etc. were allotted in the chak of respondents-2 to 6. The Consolidation Officer consolidated the chak objections and by his order dated 11.4.2009, shifted the first chak of the petitioners towards south by taking out plot 76 from their chak and allotted plot 79/3 in their chak and northern portion i.e. 76 etc. were allotted in the chak of respondents-2 to 6. It may be mentioned that total area of original holdings of the petitioners was 1.3630 hectare and area of the chak as allotted by Consolidation Officer was 1.2185 hectare. Similarly chak of respondents-2 to 6 was also disturbed and some portion of plot 77 was taken away from their chak and allotted in the chak of respondents-7 to 11. 4. The petitioners filed an appeal (registered as Appeal No. 1779 of 2001) and respondents-7 to 11 also filed an appeal (registered as Appeal No. 1771) from the aforesaid order. Both the appeals were consolidated and decided by Assistant Settlement Officer Consolidation, who by order dated 4.6.2002, allowed both the appeals and restored the chak of the petitioners of the stage of Assistant Consolidation Officer with slight modification, due to which an area of 1.3447 hectare was allotted in their chaks. Similarly he increased some more area of plot 77 in the chak of respondents-7 to 11. Recall applications filed by respondents-2 to 6 were rejected on 13.10.2003 and 13.1.2005 respectively. 5. Subedar and others (respondents-2 to 6) filed a revision (registered as Revision No. 1832) against the aforesaid order. Revision No. 1832 was dismissed in default by Deputy Director of Consolidation, by order dated 20.11.2003. However, order dated 20.11.2003 was recalled on 19.7.2005. Satiram and others (respondents-7 to 11) filed another revision (registered as Revision No. 1388) which was allowed by Deputy Director of Consolidation, by order dated 29.3.2004. Thereafter, Revision No. 1832 was heard by Deputy Director of Consolidation, who by the impugned order dated 14.12.2014 allowed the revision and set aside the order of Assistant Settlement Officer Consolidation, so far as it was in respect of the chaks of the petitioners and respondents-2 to 6 and restored position of stage of Consolidation Officer. Hence this writ petition has been filed. 6. The Counsel for the petitioners submitted that Revision No. 1832 filed by respondents-2 to 6 was dismissed in default on 20.11.2003. Respondents-2 to 6 filed recall application on 15.1.2005, which was highly time barred but no application for condonation of delay was filed. Hence this writ petition has been filed. 6. The Counsel for the petitioners submitted that Revision No. 1832 filed by respondents-2 to 6 was dismissed in default on 20.11.2003. Respondents-2 to 6 filed recall application on 15.1.2005, which was highly time barred but no application for condonation of delay was filed. Respondents-2 to 6 were themselves revisionists and hearing of the revision was adjourned on their application on 1.11.2003. There was no explanation for condonation of inordinate delay, even then recall application was allowed without issuing notice to the petitioners by order dated 19.7.2005 and without condoning the delay, Deputy Director of Consolidation had no jurisdiction to allow the recall application. Revision No. 1388/1368 filed by respondents-7 to 11 was allowed by order dated 29.3.2004 after hearing respondents-2 to 6. Chak of respondents-2 to 6 was modified from the stage of Deputy Director of Consolidation and had become final. After the order dated 29.3.2004, the revision of respondents-2 to 6 had become infructuous and was liable to be dismissed. Even then Deputy Director of Consolidation, by order dated 19.7.2005 recalled the order dated 20.11.2003 and restored the revision and now by order dated 14.11.2014 allowed the revision. The petitioners were having their house and private source of irrigation on plot 78/2. Plot 79, in which the petitioners were also co-sharers, was adjacent to the aforesaid plot in its south. Assistant Consolidation Officer, after spot inspection allotted chak to the petitioners at the place of private source of irrigation. Consolidation Officer illegally disturbed the chak of the petitioners, due to which an area of 198 air has been reduced from the area originally held by them and their chak was allotted at distance from their pumping set. Assistant Settlement Officer Consolidation has considered the grievances of the parties and allowed the appeal of the petitioners but Deputy Director of Consolidation has illegally allowed the revision of respondents-2 to 6 without considering the grievances of the petitioners and the reasons and findings recorded by the appellate authority. The order of Deputy Director of Consolidation is illegal and liable to be set aside. 7. I have considered the arguments of the Counsel for the parties and examined the record. The order of Deputy Director of Consolidation is illegal and liable to be set aside. 7. I have considered the arguments of the Counsel for the parties and examined the record. So far as the arguments that recall application filed by respondents-2 to 6 on 15.1.2005, was highly time barred and no application for condonation of delay was filed and there was no explanation for condonation of inordinate delay, even then recall application was allowed without issuing notice to the petitioners by order dated 19.7.2005 without condoning the delay, is concerned, a perusal of the order dated 20.11.2003 shows that it was passed in the absence of both the parties. The petitioners were also not appearing before Deputy Director of Consolidation at that time as such in the recall application, they were not required to be heard. Full Bench of this Court in Ramakant Singh v. DDC and others, 1974 (Suppl.) RD 262 : AIR 1975 All 126 (F.B.) held that Deputy Director of Consolidation can exercise suo moto jurisdiction under section 48 of the Act, in time barred cases also. Thus there is no jurisdictional error in passing the order dated 19.7.2005. Thereafter, notices were issued to the petitioners and they appeared before Deputy Director of Consolidation but did not raise any objection against order dated 19.7.2005 and argued the revision on merit. Now after passing final order, they cannot be permitted to challenge order dated 19.7.2005. 8. So far as the order of Deputy Director of Consolidation dated 29.3.2004, passed in the revision of respondents-7 to 11 is concerned, claim of respondents-7 to 11 in their revision was in respect of plot 77, which was their original holdings and roadside land, while dispute between the petitioners and respondents-2 to 6 is for allotment of chak on plot 79 adjacent to plot 78/2 Thus in both the revision, entirely different issue are involved and the order dated 29.3.2004 does not affect the revision of respondents-2 to 6 as it was in respect of allotment of their chak on their original holdings plot 76 and 79. 9. Admittedly plots 76/1 (area 1.4049 hectare), 76/2 (area 0.6323 hectare), 79/1 (area 0.5730 hectare) and 79/2 (area 1.5813 hectare) were original holdings of Subedar and others (respondents-2 to 6). 9. Admittedly plots 76/1 (area 1.4049 hectare), 76/2 (area 0.6323 hectare), 79/1 (area 0.5730 hectare) and 79/2 (area 1.5813 hectare) were original holdings of Subedar and others (respondents-2 to 6). A perusal of the map (filed as Annexure-3) shows that plot 76 and 79 were adjacent to plot 78/2, where respondents-2 to 6 were also having their house and pumping set. According to the principles as given under section 19 of the Act, respondents-2 to 6 were entitled for allotment of chak on largest part of their original holdings and also on their private source of irrigation. Consolidation Officer and Deputy Director of Consolidation allotted chak to respondents-2 to 6 on their original holdings and at the place where they are having their private source of irrigation. Thus chak of respondents-2 to 6 are fully in consonance of the principles contained under section 19 of the Act. So far as claim of the petitioners for allotment of chak on plot 79 is concerned, admittedly plot 79/3 was the original holding of the petitioners, which was in southern side of the plot of respondents-2 to 6 and not adjacent to plot 78/2. The petitioners have been provided chak nali from their pumping set to their chak as they can irrigate their chak from their pumping set in plot 78/2. Claim of respondents-2 to 6 for allotment of their chak adjacent to plot 78/2 was on higher footing than the petitioners. So far as the arguments that area of the chak of the petitioners has been substantially reduced from their original area is concerned, a calculation shows that an area of 0.1445 hectare (not 0.198 hectare as stated) has been reduced from the original area of the petitioners. This reduction was also due to contribution of 5% valuation for public purpose. Thus reduction of the area was very nominal although 25% is permissible under section 19 of the Act. In view of aforesaid discussions, order of respondent-1 does not suffer from any illegality. The writ petition has no merit and is dismissed.