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2015 DIGILAW 3568 (ALL)

Laxman v. Additional Collector F & R/D. D. C

2015-11-17

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. – Heard Sri Pradeep Kumar Rai, learned counsel for the petitioners and Sri Ashok Kumar who has filed caveat on behalf of respondent no. 3, the sole contesting respondent in the writ petition. 2. The writ petition arises out of proceedings for allotment of chaks and has been filed seeking a writ of certiorari for quashing of the order dated 22.10.2012 passed by the Settlement Officer Consolidation and the order dated 04.09.2015 passed by the Additional Collector Financial Revenue/Deputy Director of Consolidation, Ghazipur, whereby the appellate order has been affirmed. 3. Although, several grounds have been urged by the parties, however, in my considered opinion, the writ petition can be disposed of by considering one short point alone. 4. The case of the petitioner is that on account of the order passed by the Settlement Officer Consolidation, the increase in area of the chak of Rajnath, respondent no. 3 was more than 25 per cent. This ground was specifically raised before the Deputy Director of Consolidation and the submission in this regard finds a mention in the revisional order. However, this submission has not been accepted by the Deputy Director of Consolidation on the reasoning that both, the petitioners-revisionists in the court below and the respondent no. 3 had been allotted more land in their chaks as compared to the original holdings on the start of the consolidation operations. 5. The contention of learned counsel for the petitioners is that under the Consolidation of Holdings Act, there is a complete embargo to the effect that the variation in area on account of consolidation operations cannot be greater than 25 per cent. The order of the Settlement Officer Consolidation is contrary to this legal embargo and even though this point was specifically raised in the revision, the Deputy Director of Consolidation has brushed it aside without due consideration. It is therefore, submitted that both the orders are vitiated and are liable to be set aside. 6. The relevant averments as regards the increase in area as also due fact area of the holdings of the parties are to be found in paragraph 19 of the writ petition. I have examined the averments and I have find them to be correct; I also find that as a result of the appellate order, the increase in area in the chak of the respondent no. I have examined the averments and I have find them to be correct; I also find that as a result of the appellate order, the increase in area in the chak of the respondent no. 4 is more than 25 per cent. It is therefore, to be recorded that the Deputy Director of Consolidation has committed illegality in brushing aside this objection on the reasoning that both the parties had been allotted more area in their chaks as compared to their original holdings. Merely because there has been an increase in the area of the petitioner's chak on account of consolidation operations, the same would not justify increase of more than 25 per cent in the holdings of the respondents. 7. The revisional order therefore cannot be sustained. I also do not find any merit in the submission of learned counsel for the respondents that the increase in area of the chak of respondent no. 3 is only 25 per cent and not more than 25 per cent and, therefore, the impugned orders are justified. 8. In view of the fact that the impugned orders are contrary to the legal mandate which provides that the change in the area of the holding of a tenure holder cannot be more than 25 per cent on account of consolidation operations, the impugned revisional order is set aside. 9. Since, the matter is being remanded back for a second time by this Court, I am not setting aside the appellate order but the matter is being remanded back to the revisional court to examine this aspect of the matter and to pass a fresh order in accordance with law after hearing all concerned. 10. The order of the Settlement Officer Consolidation though illegal, is not being set aside because setting aside the appellate order would required that the matter be remanded back to the Settlement Officer Consolidation, which will only prolong the litigation between the parties. The Deputy Director of Consolidation is fully competent to remedy the defect in the appellate order. 11. I, accordingly, allow this writ petition, set aside the order dated 04.09.2015 passed by the Deputy Director of Consolidation in so far as the revision filed by the petitioner is concerned and remand the matter back for a fresh decision in the light of the observation contained herein above. 12. 11. I, accordingly, allow this writ petition, set aside the order dated 04.09.2015 passed by the Deputy Director of Consolidation in so far as the revision filed by the petitioner is concerned and remand the matter back for a fresh decision in the light of the observation contained herein above. 12. It is, further, provided that the Deputy Director of Consolidation may decide the revision no. 1159 (Laxman and Others v. Rajnath and Others) as expeditiously as possible, preferably within a period of four months from the date of production of a certified copy of this order before him. Petition allowed.