Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 1455 (ALL)

Chunbad v. Asstt. D. C. C.

2015-05-29

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. Heard Sri Anurudh Chaturvedi learned counsel for the petitioner and Sri Narendra Mohan for the respondent no. 3. 2. This writ petition is directed against the order dated 18.05.1988 passed by the respondent no. 1 whereby he has accepted a reference under Section 48 (3) of the U.P. Consolidation of Holdings Act . 3. Facts of the case are that, a time barred objection was filed by the petitioner under Section 20 of the Act. The objection was to the effect that Plot no. 253 be excluded from his chak and he be alloted a chak on plots which were left as bachat. The Consolidation Officer by his order dated 12.01.1985 allowed the objection. Plot no. 253 was excluded from the chak of the petitioner and he was allotted two chaks in lieu thereof. The first chak on plot nos. 864, 865 and 866 and the second chak was allotted on plot no. 878 and 788. All the four plots allotted to the petitioner had been left as bachat. 4. It further appears that prior to the order dated 12.01.1985, the Deputy Director of Consolidation had passed an order on 09.01.1985 in a Reference no. 4095 wherein plot nos. 787 and 788 allotted to the petitioner on his objection had been reserved for plantation. 5. When the aforementioned facts were discovered a reference was prepared stating therein that the publication of notification under Section 20 of the Act had been made on 08.04.1981. The chaks were confirmed on 13.06.1981. Three years later a time barred objection filed by the petitioner was allowed. By this order the earlier order dated 09.01.1985 passed by the Deputy Director of Consolidation stood modified. Since the order passed in favour of the petitioner was contrary to and in the teeth passed by the Deputy Director of Consolidation on 09.01.1985 a prayer was made in the reference that the order in favour of the petitioner passed on 12.01.1985 be set aside. 6. In this connection, it would further be relevant to note that the order of the Consolidation Officer passed in favour of the petitioner on 12.01.1985 appears to have been passed on a compromise entered into between the petitioners and the Pradhan of the village who has recorded his no objection. 7. 6. In this connection, it would further be relevant to note that the order of the Consolidation Officer passed in favour of the petitioner on 12.01.1985 appears to have been passed on a compromise entered into between the petitioners and the Pradhan of the village who has recorded his no objection. 7. It would further be relevant to note that yet another time barred objection was filed by one Chhotey Lal for allotment of land in question in his chak. The objection was dismissed on 20.03.1986 and the consequential appeal was dismissed on 21.08.1986. 8. Consequent to the writ petition being filed and entertained, an impleadment application was filed by one Ram Gopal wherein it was alleged that after the close of the consolidation operations he had instituted proceedings under Section 161 of the U.P. Zamindari Abolition & Land Reforms Act wherein plots in dispute in the instant writ petition and which was bachat plots were permitted to be exchanged with the plots of the said Ram Gopal. The order for exchange was passed on 26.10.1989. Subsequently, the heirs of the petitioner (since deceased) filed an application for recall of the order passed in proceedings under Section 161 on the ground of pendency of the instant writ petition and the interim order operating therein. As a consequence, the order for exchange dated 26.10.1989 was stayed. Ram Gopal therefore, sought impleadment in the writ petition which was allowed. The said Ram Gopal is represented by Sri Narendra Mohan. It further appears that the recall application filed by the sons of the deceased petitioner is still pending consideration. 9. The primary contention of learned counsel for the petitioner is that the Consolidation Officer rightly passed the order in his favour. He, as a consequence of this order was proposed two chaks. The objection that the order in his favour was contrary to the order passed by the Deputy Director of Consolidation three days prior to the order passed in his favour pertained to only Plot no. 787 and 788 the second chak proposed to the petitioner. He therefore, submits that even if the reasoning given in the impugned order is accepted, the first chak of the petitioner allotted on Plot no. 864, 865 and 866 etc. does not require any modification. He further submits that the petitioners' have been in possession of the land in question for over 13 years. He therefore, submits that even if the reasoning given in the impugned order is accepted, the first chak of the petitioner allotted on Plot no. 864, 865 and 866 etc. does not require any modification. He further submits that the petitioners' have been in possession of the land in question for over 13 years. There is an interim order operating in their favour. On account of long pendency the equities have changed and therefore, the petitioner is entitled to a sympathetic approach in the matter. He has submitted that the order impugned has been given effect to on the spot and if the same is set aside the petitioner would stand deprived both of his original holdings which have been allotted to others as also the land which has been proposed in his chak. 10. Lastly he has submitted that the order passed in his favour, although found to be in the teeth of the order of the Deputy Director of Consolidation passed three days earlier, there was no way the Consolidation Officer could have been aware of the order of the Deputy Director of Consolidation and therefore there is no malafide intention of the Consolidation Officer to pass the order. 11. Sri Narendra Mohan has supported the order impugned. 12. I have considered the submissions made by learned counsel for the parties and have perused the record. 13. Insofar as, the submission of learned counsel for the petitioner that the Consolidation Officer had passed the order in his favour bonafide, the same is of no consequence. Admittedly, the order passed by the Consolidation Officer was contrary to and modified, an order passed by a superior authority. Under the circumstances, the order necessarily is required to be set aside. 14. As regards the submission that only a part of the order be set aside, I see no justification for such an approach. Admittedly, the order passed in favour of the petitioner was passed, consequent to and in the teeth of an order passed by the Deputy Director of Consolidation. The Consolidation Officer does not have the authority to modify an order passed by a superior consolidation court. In this connection, it would further be relevant to note that the order was passed by the Consolidation Officer on the basis of a compromise entered into by the Pradhan of the village. The Consolidation Officer does not have the authority to modify an order passed by a superior consolidation court. In this connection, it would further be relevant to note that the order was passed by the Consolidation Officer on the basis of a compromise entered into by the Pradhan of the village. There is nothing on record to indicate that the Pradhan had entered into a compromise after having obtain due permission from the Collector. Till such a time there was evidence available to show that the Collector had permitted the Pradhan to enter into compromise the compromise could have been entered into and for this reason alone the compromise order is not liable to be sustained. 15. According and for the reasons given above I find no illegality in the impugned order and therefore the writ petition is liable to be dismissed. At this stage, it is been reiterated by learned counsel for the petitioner that by dismissal of the writ petition he would stand deprived by his original holding as also the land which has been proposed in his chak. 16. Although it has been averred in the writ petition that the petitioner was put in possession in pursuance of the order dated 12.01.1985 passed in his favour, I am not convinced that such possession was in fact actually delivered. However, in case the order dated 12.01.1985 was actually implemented on the spot, and as a consequence of the dismissal of this writ petition the petitioner is liable to be dispossessed, it will be open for the petitioner, in case necessity arises, to file an appropriate application before the authorities concerned in this regard and he may seek any adequate legal remedy for restitution of the status as existing prior to the order dated 12.01.1985. 17. Insofar as, the proceedings under Section 161 fo the U.P.Z.A. & L.R. Act are concerned, it appears that the restoration application filed by the petitioner is pending consideration, the said restoration application may be considered by the court concerned and disposed of in accordance with law after hearing all concerned. 18. Although in my opinion, if the plots in question namely 878 and 788 had been reserved for a public purpose namely for plantation during the consolidation operations, there appears to be no justification for exchanging the same with other land belonging to the respondent no. 18. Although in my opinion, if the plots in question namely 878 and 788 had been reserved for a public purpose namely for plantation during the consolidation operations, there appears to be no justification for exchanging the same with other land belonging to the respondent no. 3 in proceedings for exchange under Section 161. Therefore, it is further provided that the court concerned while deciding the restoration application filed by the petitioner may also consider this aspect of the matter. 19. Accordingly and subject to the directions/observations as above this writ petition is dismissed.