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2015 DIGILAW 2217 (ALL)

Babban v. Deputy Director of Consolidation.

2015-07-31

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. Heard Sri Tripathi B.G. Bhai for the petitioner and Sri Shailesh Kumar Tripathi and Sri Jeevan Prakash Sharma for respondent-4. 2. The writ petition has been filed against the orders of Settlement Officer Consolidation dated 13.9.2012, 5.9.2013 and 16.1.2015 and Deputy, Director of Consolidation dated 29.6.2015 passed in the chak allotment proceeding. 3. The dispute between the parties is in respect of allotment of cha-on plot no.954. Plot nos. 945, 947, 948, 949, 950, 953, 955, 957, 958, 959 and 960 were the original holdings of the petitioner at this place in which the petitioner was having 1/3 share. The total area of these plots comes about 0.389 hectare in which according to the share of the petitioner an area of 0.126 hectare comes to his share. The petitioner was proposed his first chak on plot no.950 etc. of the area 0.244 hectare. 4. it may be mentioned here that plot nos.951, 952, 954, 956, 961 962, 963, 964 were the original holding of Ram Jiyawan (respondent-4) out of which plot no.954/1 area 0.016 hectare and plot no.964 area 0.001 hectare was chak out on the spot. According to respondent-4 he has constructed his house on this plot and installed a pumping set also but from the stage of Assistant Consolidation Officer he was not proposed any. chak at this place. Respondent-4 filed an objection under Section 20 of the Act claiming for allotment of chak on plot no.954 etc. on the ground that he was having his house and private source of irrigation at this place. The Consolidation Officer by order dated 6.5.2010 dismissed the objection of respondent-4 on the ground that in his objection he has not stated as to valuation of which of his chaks be deleted and its valuation be allotted on plot no.954. Thereafter respondent-4 filed an appeal from the aforesaid order. It is alleged that in the appeal notice was issued to the petitioner and the Process Server served notice by way of affixation and submitted his report dated 11.7.2012 in this respect. Thereafter, the Settlement Office, Consolidation heard the appeal and by order dated 13.9.2012 found that as the house of respondent-4 was existing on plot no.954/1 and Samadhi of his ancestors was also lying in plot no.1698 as such his demand was genuine. Thereafter, the Settlement Office, Consolidation heard the appeal and by order dated 13.9.2012 found that as the house of respondent-4 was existing on plot no.954/1 and Samadhi of his ancestors was also lying in plot no.1698 as such his demand was genuine. On this finding he allowed the appeal in which chak of the petition has also been disturbed. By taking an area of 0.103 hectare from the first chak of the petitioner on plot no.950 etc. it has been allotted in the chak of respondent-4 and in lieu of it area was allotted to the petitioner on plot no.1036 etc. The petitioner, therefore, filed an application for recall of the aforesaid order on the ground that in the appeal notice was not served upon him and on the report of service of the notice by way of affixation, the court had proceeded to pass ex parte order in which his chak has been disturbed. However, the Settlement Officer, Consolidation by order dated 5.9.2013 rejected the recall application. Thereafter the petitioner filed another recall application for recalling the order dated 5.9.2013 which was also rejected by order dated 16.01.2015. 5. Thereafter the petitioner filed a revision against the aforesaid order. The revision was heard by the Deputy Director of Consolidation, who made the spot inspection and by order dated 29.6.2015 found that various plots at this place are original holdings of Babban(petitioner) and respondent-4. The chak of Babban which has been allotted at this place has not been given access on the Sector Road. Therefore, on this limited ground he allowed the revision in which small parts of the chaks of the parties were adjusted and in that way both of them were allowed frontage on the Sector Road. Hence, this writ petition has been filed. 6. The counsel for the petitioner submits that in objection filed by respondent-4, the petitioner was not impleaded as opposite party. It is only at the time of appeal the petitioner was impleaded as opposite party in the memorandum of appeal. The notice of appeal was served by way of affixation and there was not personal service nor petitioner was heard before massing the order. Thus, the order of Settlement Officer, Consolidation was clearly an ex parte order and was liable to be recalled. The respondent-4 has secured a false report regarding service by way of affixation. The notice of appeal was served by way of affixation and there was not personal service nor petitioner was heard before massing the order. Thus, the order of Settlement Officer, Consolidation was clearly an ex parte order and was liable to be recalled. The respondent-4 has secured a false report regarding service by way of affixation. Thus, respondent-4 committed fraud upon the court and secured an ex parte order of Settlement Officer, Consolidation but he has illegally refused to recall ex parte order. So far as the order of Deputy Director of Consolidation is concerned, the Deputy Director of Consolidation has not considered the grievance of the petitioner in respect of ex parte order of Settlement Officer, Consolidation as chak of the petitioner was substantially on his original holding and only a small area of 0.014 hectare of plot no.954 has been allotted to the petitioner. At the most only an area of plot no.954 which was original holding of respondent-4 could be taken from his chak but the Deputy Director of Consolidation has not considered the grievance of the petitioner at all. Similarly, the Settlement Officer, Consolidation has allotted a third chak to the petitioner, which is substantially an uran chak situated at a long distance from his original holding but Deputy Director of Consolidation has not adverted to the ground raised by the petitioner in this respect also. The order of Deputy Director of Consolidation is illegal and is liable to be set aside. 7. I have considered the arguments of the counsel for the petitioner. 8. So far as the opportunity of hearing having not been given to the petitioner in the proceeding before the Settlement Officer, Consolidation is concerned, in. chak allotment matters, the matter has been heard by the Deputy Director of Consolidation and decided by him afresh, therefore, the petitioner was fully heard before the Deputy Director of Consolidation. On this ground alone this Court is not inclined to interfere in the matter. 9. As stated above, in the vicinity of the original holding 950 etc. in which in share of the petitioner an area of 0.126 hectare only was falling he was proposed chak of an area 0.244 hectare on plot no.950 etc.The Settlement Officer, Consolidation has reduced his area by 0.103 hectare but still the petitioner has. 9. As stated above, in the vicinity of the original holding 950 etc. in which in share of the petitioner an area of 0.126 hectare only was falling he was proposed chak of an area 0.244 hectare on plot no.950 etc.The Settlement Officer, Consolidation has reduced his area by 0.103 hectare but still the petitioner has. been allotted chak at this place of the area 0.141 hectare .which is more than his original holding. 10. A perusal of CH Form 23 of respondent-4 shows that an area of 0.016 hectare of plot no.954/1 and an area of 0.001 of plot no.964 is chak out. According to respondent-4 his house and private source of irrigation are existing at this place. Looking to the house and private source of irrigation respondent-4 was allotted chak of an area 0.103 hectare on his original holding on plot no.954. Thus equity has been adjusted by the Deputy Director of Consolidation between the parties. According to the provisions of Section 19(1)(f) of the Act, a tenure holder is entitled for allotment of a chak where he has his private source of irrigation and the Settlement Officer, Consolidation has allotted the chak to respondent-4 where he was having his private source of irrigation. 11. So far as the contention of the counsel for the petitioner that a third chak which has been allotted by Settlement Officer, Consolidation on plot no. 1036 is uran chak, is concerned, plot no. 1036 is the original holding of the petitioner and apart from it the petitioner has also other plots in the vicinity of this plot. Thus, it cannot be said that it is a totally uran chak. 12. No interference is required by this Court. The writ petition has no merit and it is dismissed.