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2015 DIGILAW 371 (ALL)

Om Prakash v. Dy. Director Of Consolidation Mau

2015-02-24

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. Heard Sri Suresh Kumar Srivastava, for the petitioner, and Sri R.N. Singh Yadav, for the contesting respondent-3. The writ petition has been filed against the orders of Settlement Officer Consolidation 08.08.2013 and 05.07.2014 and Deputy Director of Consolidation dated 03.11.2014 passed in chak allotment proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. The dispute between the parties is for allotment of chak on plot 469 in its northern side taking an area of 0.060 hectare of plot 483 and second chak on plot 576 in its northern side of village Barlai, tahsil and district Mau. Om Prakash (Chak-53) (the petitioner) and Ram Janam (Chak-430) (respondent-3) and other respondents are co-sharers in plots 469 and 576. There had been private partition between the parties. It is alleged that on the basis of previous partition, Ram Janam was having his share in northern side and Om Prakash was having his share in south to the portion of Ram Janam. Ram Janam has installed his pumping set in north-east side of plot 469 and also planted trees. During consolidation operation, some portion of plot 469 on which the parties had installed pumping set, was left as achak. Assistant Consolidation Officer proposed two chaks to the petitioner and his other co-sharers on plots 469 and 576 according to their previous possession, in which chak of Ram Janam was in extreme north on plot 469. Om Prakash (the petitioner) filed an objection, claiming for allotment of his chak on plot 469 in northern side taking an area of 0.060 hectare of plot 483. The Consolidation Officer by order dated 12.02.2013 allowed the objection of the petitioner. 3. Ram Janam (respondent-3) filed an appeal (registered as Appeal No. 822 of 2013) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by order dated 08.08.2013 held that shape of the chak of Ram Janam on plot 469 had become in Z form, by order of Consolidation Officer. Ram Janam was having his share in extreme north in plots 469 in private partition and has also installed his pumping set and planted trees as such he was rightly proposed chaks in extreme north in both these plots. The Consolidation Officer has illegally disturbed his chak. Ram Janam was having his share in extreme north in plots 469 in private partition and has also installed his pumping set and planted trees as such he was rightly proposed chaks in extreme north in both these plots. The Consolidation Officer has illegally disturbed his chak. On these findings, the appeal was allowed and Ram Janam was allotted his chak in extreme north on both plots 469 and 576. The petitioner filed a time barred revision (registered as Revision No. 338/614/2014-15) from the aforesaid order, on 01.08.2014. 4. It may be mentioned that by the order of Settlement Officer Consolidation dated 08.08.2013, chak of Budhiram (Chak-311) (now represented by respondents-4 and 5) and Raj Kumar (Chak-431) (respondent-6) were also affected. Respondents-4 to 6 filed an application for setting aside the order dated 08.08.2013 on the ground that Budhiram was dead and his heirs were neither substituted in his place nor any notice was issued to them and the order was ex parte against them. Recall application was allowed by order dated 26.06.2014 and thereafter the appeal was again heard on merit by Settlement Officer Consolidation after spot inspection. Settlement Officer Consolidation, by order dated 05.07.2014 held that by the order of Consolidation Officer, shape of the chak of Ram Janam on plot 469 had become in Z form as such his appeal in respect of this chak was liable to be allowed and he was entitled to chak in extreme north on plot 469. While in private partition, major share of Ram Janam was in southern side in plot 576 as such he was liable to be given chak in southern side on plot 576. On these findings the appeal was again allowed by order dated 05.07.2014. By this order chak of the parties are allotted in east-west in rectangular form on both plots 469 and 576. On plot 469, chak of Ram Janam (Chak-430) is in extreme north, thereafter the petitioner has his chak-53, thereafter Jai Govind has his chak-311 and thereafter Raj Kumar has his chak-431, in extreme south. On plot 576, Jai Govind has his chak-311, in extreme north, thereafter the petitioner has his chak-53, thereafter Raj Kumar has his chak-431 and chak of Ram Janam (Chak-430) is in extreme south. The petitioner filed another revision (registered as Revision No. 337/611) from the aforesaid order. None of other co-sharers has challenged the order dated 05.07.2014. 5. On plot 576, Jai Govind has his chak-311, in extreme north, thereafter the petitioner has his chak-53, thereafter Raj Kumar has his chak-431 and chak of Ram Janam (Chak-430) is in extreme south. The petitioner filed another revision (registered as Revision No. 337/611) from the aforesaid order. None of other co-sharers has challenged the order dated 05.07.2014. 5. Both the revisions were consolidated and heard by Deputy Director of Consolidation, who by order dated 03.11.2014 held that all the co-sharers were given chaks on their original holdings according to their previous possession in rectangular form. No prejudice has been caused to the petitioner as such both the revisions were dismissed. Hence this writ petition has been filed. 6. The counsel for the petitioner submits that Deputy Director of Consolidation instead of making himself spot inspection, sent his staff for spot inspection. Staff made inspection of plots 623 and 673, for which the parties had no dispute. Inspection memo was submitted on 31.10.2014 and revision was decided on 03.11.2014 without hearing arguments of the parties. Inspection memo dated 31.10.2014 was not in respect of plot 469 and 576, for which the petitioner had filed revisions. In the absence, of fresh hearing Deputy Director of Consolidation was mislead by Inspection memo dated 31.10.2014. This Court in Ramdeo Vs. D.D.C. and others, 1980 AWC 593 and Writ-B No. 26086 of 2011 Thamman Singh Vs. State of U.P. and others, (decided on 15.04.2014) held that hearing before spot inspection stand nullified and it was imperative for Deputy Director of Consolidation to hear arguments afresh after spot inspection. Order of respondent-1 is a cryptic order in as much as he has neither noticed the grievances of the petitioner nor given any reason for its rejection. Respondent-2 has committed mistake apparent on face of record in deciding the appeal afresh by order dated 05.07.2014 without recalling his earlier order dated 08.08.2013. By the order dated 08.08.2013, chak of the petitioner on plot 469 was placed in front of pumping set of respondent-3 while chak of respondent-3 on plot 469 was placed in front of pumping set of the petitioner causing inconvenience to both of them. The petitioner has neither any rasta nor nali up to his chak on plot 469, which has make his chak inaccessible and unirrigated causing grave injustice to the petitioner. The petitioner has neither any rasta nor nali up to his chak on plot 469, which has make his chak inaccessible and unirrigated causing grave injustice to the petitioner. Orders of respondents-1 and 2 are illegal and liable to be set aside. 7. I have considered the arguments of the counsel for the parties and examined the record. In the memorandum of revision filed from order dated 08.08.2013, the petitioner has stated that an area of 0.300 hectare of plot 469 in its eastern side was left as chak out. By the order dated 08.08.2013, chak of the petitioner was shifted in south of chak of Ram Janam, who was allotted chak in extreme north, due to which chak of the petitioner has come in front of pumping set of Ram Janam. Due to 0.300 hectare as achak in eastern side of this plot, he has been deprived to his access up to chak road, which existed in east of this plot. Thus the petitioner has raised two grievances in respect of his chak on plot 469 namely (i) he has been deprived to his access up to chak road, which existed in east of this plot due to 0.300 hectare of this plot being achak in east and (iii) chak of the petitioner has come in front of pumping set of Ram Janam. 8. So far as the argument that chak of the petitioner has come in front of pumping set of Ram Janam is concerned a perusal of corrected chak map shows that pumping set of Ram Janam in chak out portion of plot 633 comes in eastern northern corner of the chak of the petitioner. But for that reason, the petitioner cannot be said to be an aggrieved person. In fact, in eastern side of plot 469, plot 633, belonging to the parties is existing, which is chak out on the spot, in which the parties have installed their pumping set according to their previous partition. Pumping set of Ram Janam is in northern side while pumping set of the petitioner is southern side as is clear from spot inspection memo. Since eastern portion is chak out as such Ram Janam can construct a nali from his pumping set up to his chak, without causing any inconvenience to any of the parties. Pumping set of Ram Janam is in northern side while pumping set of the petitioner is southern side as is clear from spot inspection memo. Since eastern portion is chak out as such Ram Janam can construct a nali from his pumping set up to his chak, without causing any inconvenience to any of the parties. In the same way, the petitioner can construct his chak nali from his pumping set to chak in his chak out portion. So far as other ground that the petitioner has been deprived of his access up to chak road, which existed in east of plot 469 due to 0.300 hectare of being achak in east, is concerned both Settlement Officer Consolidation and Deputy Director of Consolidation, after spot inspection found that after chak of the petitioner, chak out portion of plot 633 of share of the petitioner in eastern side was there, from which he had access up to chak road from his chak, which has been carved out according to previous possession of the parties as they had installed their pumping set on their portions. Inspection memo shows the previous possession of the parties in plot 633. The petitioner is misleading the Court in respect of Inspection memo as due to mistake "623" has been written in it instead of "633". Thus the grievances raised by the petitioner has been considered by respondents-1 and 2 and there is no illegality in it. 9. In the memorandum of revision filed from order dated 05.07.2014, the petitioner has stated that in plot 576, in family partition he was allotted his share in extreme north where Jai Govind (Chak-311) has been allotted chak. Since there was no development by the parties on this plot as such by allotting extreme north portion to Jai Govind (Chak-311), no material prejudice has been caused to the petitioner as his chak has been carved out on the same plot in south of the chak of Jai Govind, while the parties have chak road in eastern side. All the co-sharers are satisfied except the petitioner. In the absence of any material prejudice being caused, no interference is required by this Court in chak allotment matter. 10. Now arguments raised by the counsel for the petitioner on the basis of case law in Ramdeo Vs. D.D.C. and others, 1980 AWC 593 and Writ-B No. 26086 of 2011 Thamman Singh Vs. In the absence of any material prejudice being caused, no interference is required by this Court in chak allotment matter. 10. Now arguments raised by the counsel for the petitioner on the basis of case law in Ramdeo Vs. D.D.C. and others, 1980 AWC 593 and Writ-B No. 26086 of 2011 Thamman Singh Vs. State of U.P. and others, (decided on 15.04.2014) has to be considered. The procedure for disposal of chak objection has been provided under Section 21 of the Act. Section 21 (3) of the Act, provides that the Consolidation Officer shall, before deciding the objections and the Settlement Officer Consolidation, may before deciding an appeal, make local inspection of the plots in dispute after notice to the parties concerned and the Consolidation Committee. Rule 26 (5) of U.P.C.H. Rules, 1954 provides that for deciding dispute relating to determination of exchange ratio of a plot or the valuation of a tree, well or other improvement existing on a plot, the Consolidation Officer shall make a local inspection of the plot concerned, prepare and inspection memo and place it on the concern file. Similar provision has been given under Section 9-B (2) of the Act, for spot inspection for disposal of objections against Statement of Principles. By virtue of Section 44-A of the Act, Deputy Director of Consolidation can exercise these powers also in his discretion. However this Court has taken view that there is no statutory compulsion for spot inspection for Deputy Director of Consolidation, while deciding the revision. 11. The purpose of local inspection is to properly appreciate the arguments of the parties made on the basis evidence already recorded during the trial and not to collect fresh evidence. This Court in Amarjit Singh Vs. Assistant Director of Consolidation and others, 1998 (89) RD 231 held that in case during spot inspection, no fresh material has been found/relied upon in the judgment by Deputy Director of Consolidation, then he was not require to hear the arguments afresh after spot inspection. The case of Ramdeo Vs. D.D.C. and others, 1980 AWC 593 has been distinguished. In this case arguments were heard by Deputy Director of Consolidation on 24.10.2014. On that day he fixed 31.10.2014 for spot inspection and 03.11.2014 for delivery of judgment. The case of Ramdeo Vs. D.D.C. and others, 1980 AWC 593 has been distinguished. In this case arguments were heard by Deputy Director of Consolidation on 24.10.2014. On that day he fixed 31.10.2014 for spot inspection and 03.11.2014 for delivery of judgment. Spot inspection was made on 31.10.2014 as inspection memo was signed by Deputy Director of Consolidation and Jitendra, son of the petitioner, who is the deponent of the writ petition. Now false version has been made in the writ petition that Deputy Director of Consolidation had obtained report from subordinate staff in stead of himself making spot inspection. In the facts and issues between the parties, spot inspection was necessitated to ascertain as to whether access of the petitioner on plot 469 up to chak road was blocked and previous possession and existence of pumping set of the parties for which arguments were already heard. Nothing new was noticed/considered by Deputy Director of Consolidation at the time of spot inspection, which requires fresh hearing. 12. Similar provisions for spot inspection in other statute may also be noticed. Order 18 Rule 18 of Civil Procedure Code, 1908 contains provisions for local inspection by the Court as follows: - Order 18 Rule 18.- Power of Court to inspect.-- The Court may at any stage of a suit inspect any property or thing concerning which any question may arise and where the Court inspects any property or thing it shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit. 13. Supreme Court in Ugamsingh and Mishrimal v. Kesrimal, AIR 1971 SC 2540 , held that "the judgment in our view is not based solely on the result of personal inspection made by the trial Judge, which inspection was for the purposes of understanding the evidence in the case and has been so used by the trial Judge. We must therefore, reject the contention of the learned Advocate for the appellants that the finding in respect of the idol is vitiated." 14. Section 310 of Criminal Procedure Code, 1973 contains similar provision for spot inspection, which is quoted below: - “310. We must therefore, reject the contention of the learned Advocate for the appellants that the finding in respect of the idol is vitiated." 14. Section 310 of Criminal Procedure Code, 1973 contains similar provision for spot inspection, which is quoted below: - “310. Local inspection.--(1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection. (2) Such memorandum shall form part of the record of the case and if the prosecutor, complainant or accused or any other party to the case, so desires, a copy of the memorandum shall be furnished to him free of cost. “ 15. Supreme Court in State of H.P. v. Mast Ram, AIR 2004 SC 5056 , has held that "apart, the local inspection envisaged under Section 310 CrPC is for the purpose of properly appreciating the evidence already recorded during the trial. Memorandum of spot inspection recorded by the trial Judge has to be appreciated in conjunction with the evidence already recorded. Any omission and/or commission in the memorandum recorded by the trial Judge by itself would not constitute material irregularity, which would vitiate the prosecution case." 16. Supreme Court in Shadilal Gupta v. State of Punjab, (1973) 1 SCC 680 , has held that "what is urged before us in this case is that as the report of the Treasury Officer, which we have already referred to earlier, was taken into consideration without showing it to the appellant he has been seriously prejudiced and the principles of natural justice have been violated insofar as he has not had an opportunity of making his representation in respect of that report. We find no substance in this contention. We find no substance in this contention. When Shri Banwari Lal wanted a local enquiry to be made he apparently wanted the representation made by the appellant to be checked up with the records and that is what has been done as is clear from a comparison of the allegations on the basis of which the charge-sheet was served on the petitioner, and the report of the Treasury Officer. We have carefully gone through it and it does not add one single instance more than what is already found in the allegations. It merely sets out the evidence in support of these allegations. We are, therefore, of the opinion that the appellant has not been in any way prejudiced by the Treasury Officer's report being taken into consideration before the order of punishment was passed against the petitioner. If before the Treasury Officer had sent his report he had associated the appellant in the enquiry he held it would not have been necessary to give him a copy of the report he sent. If the report had contained any material extraneous to the charges against the appellant, or any thing in addition to what is found in the original allegations against him then only he could be said to have been prejudiced. There is no question in this case of the Treasury Officer's report having prejudiced the punishing officer, Mr D.D. Sharma. The application of the principles of natural justice is not a question of observance of a formula or a mere technicality. In essence it is meant to assure that the party concerned has an opportunity of being heard, the principle of audi alteram partem. Whether in any particular case it has been violated will depend on the facts and circumstances of that case. It is not to be considered that unless all the procedure of the courts are observed it would mean failure to observe the principles of natural justice. We are of the opinion that no principles of natural justice have been violated in this case." 17. Violation of principles of natural justice cannot be inferred merely on the ground that Deputy Director of Consolidation has not heard arguments again after local inspection. In view of the judgments of Supreme Court, the judgments cited by the counsel for the petitioner has no binding precedent. Violation of principles of natural justice cannot be inferred merely on the ground that Deputy Director of Consolidation has not heard arguments again after local inspection. In view of the judgments of Supreme Court, the judgments cited by the counsel for the petitioner has no binding precedent. The other arguments that order of respondent-1 is a cryptic order in as much as he has neither noticed the grievances of the petitioner nor given any reason for its rejection has no force as order of respondent-1 is an order of affirmation, Settlement Officer Consolidation in the order dated 05.07.2014 has considered all the points raised by the petitioner. Other argument that respondent-2 has committed mistake in deciding the appeal afresh by order dated 05.07.2014 without recalling his earlier order dated 08.08.2013 is misconceived as in the order dated 05.07.2014, it has been noticed that order dated 08.08.2013 was recalled on 26.06.2014. 18. In view of the aforesaid discussions, writ petitions has no merit and is dismissed.