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2015 DIGILAW 464 (ALL)

Siya Devi v. D. D. C.

2015-03-11

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Rajendra Kumar Pandey, for the petitioner, and Sri C.S. Agnihotri, for the contesting respondent-4. The writ petition has been filed against the orders of Settlement Officer Consolidation 14.7.2014 and Deputy Director of Consolidation dated 4.12.2014 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 plots 37 and 86 of village Mirzapur Chandnapur, tahsil Chail, district Kausambi. Plots 31 (area 0.5638 hectare) and 86/2 (area 0.9600 hectare) were the original holdings of the petitioner and respondent-4, who are real sisters, having 1/2 share each in these plots while in plot 37 an area of 0.1048 hectare was in the share of the petitioner. Assistant Consolidation Officer proposed two chaks to the petitioner i.e. first chak of the area of 0.3801 hectare on plot 86/2 and second chak of the area of 0.4507 hectare on plots 30 and 31. The petitioner filed an objection, claiming for allotment of two chaks, first on plot 86 and second on plot 37 and deleting her chak on plots 30 and 31. It has been stated by the petitioner that she was having her private tube-well on plot 86, from where plot 37 can be irrigated but plot 31 cannot be irrigated from it as such her chak on plots 30 and 31 be deleted and its valuation be adjusted in her chak on plots 86 and second chak be allotted on plot 37. The Consolidation Officer by order dated 9.5.2014, held that as the petitioner was having her tube-well on plot 86 and in between plots 86 and 37 a chak road is existing as such looking to the private source of irrigation, it would be appropriate to allot chak to the petitioner on plots 86 and 37. On these findings the objection was allowed and the chak of the petitioner on plots 30 and 31 (total area 0.4507 hectare) was deleted and she was allotted its valuation on plots 86 and 37. Due to which and area of 0.4302 hectare was taken out from the chak of respondent-4 and her chak on plot 37 was deleted and area of her chak on plot 86 was reduced to 0.355 hectare and she was allotted its valuation on plots 30 and 31. 3. Due to which and area of 0.4302 hectare was taken out from the chak of respondent-4 and her chak on plot 37 was deleted and area of her chak on plot 86 was reduced to 0.355 hectare and she was allotted its valuation on plots 30 and 31. 3. Respondent-4 filed an appeal (registered as Appeal No. 98/26/5/14 of 2014) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by order dated 14.7.2014 held that as both the parties-agreed for allotment of equal area in all the three plots as such the appeal was liable to be allowed. On these findings, the appeal was allowed and both the parties were allotted equal share in all the three plots. The petitioner filed a revision (registered as Revision No. 44/151/2014) from the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 4.12.2014 held that the petitioner and respondent-4, being co-sharers, were given chaks on their original holdings according to their share, in view of law laid down by High Court in 2003 RD 143 as such, there is no illegality. On this ground the revision was dismissed. Hence this writ petition has been filed. 4. The Counsel for the petitioner submits that the petitioner was having her private source of irrigation on plot 86 as such she was rightly allotted chak on plots 86 and 37 which are adjacent, according to the provisions of section 19(1)(f) of the Act by the Consolidation Officer. Respondent-4 made false statement in her appeal that her tube-well was existing on plot 86 although, the petitioner was exclusive owner of the tube-well existing on plot 86. Settlement Officer Consolidation, without making spot inspection as provided under section 21(3) of the Act, allowed the appeal and allotted three chaks to them, although total area of original holding of the petitioner was 0.8667 hectare and allotment of three chaks was against the object of consolidation. Settlement Officer Consolidation ignored the fact that she was having her private source of irrigation on plot 86 and did not record any finding in respect of ownership of tube-well. Before the Consolidation Officer, the petitioner has raised specific ground that plot 31 could not be irrigated from her tube-well on plot 86. Settlement Officer Consolidation ignored the fact that she was having her private source of irrigation on plot 86 and did not record any finding in respect of ownership of tube-well. Before the Consolidation Officer, the petitioner has raised specific ground that plot 31 could not be irrigated from her tube-well on plot 86. In the light of grievance raised by the petitioner, spot inspection was necessary but neither Settlement Officer Consolidation nor Deputy Director of Consolidation made spot inspection. He relied upon the judgment of this Court in Nathnnee v. DDC and others 2005 (98) RD 92 , in which it has been held that when lower authorities had decided the claim of the parties after making spot inspection, it would be mandatory for the Revisional Court to make spot inspection while reversing the judgment. He further submits that Deputy Director of Consolidation has misread and misinterpreted the case law in Shankar @ Surendra v. DDC and others 2003 RD 143. He submits that orders of respondents-1 and 2 are illegal and liable to be set aside. 5. I have considered the arguments of the Counsel for the parties and examined the record. Settlement Officer Consolidation, in his order dated 14.7.2014 noted that as both the parties had agreed for allotment of equal area in all the three plots as such the appeal was allowed and chaks were allotted according the consent of the parties. The appeal was decided in terms of consent between the parties who are real sisters, at the time of arguments and it was a consent order. When the parties had agreed and settled their dispute in one way or other, Settlement Officer Consolidation had rightly decided the appeal on the basis of agreement between the parties without going to the merit of the case or spot inspection. In the memorandum of revision, the petitioner has not raised any ground challenging that Settlement Officer Consolidation had wrongly recorded consent in the order. The order of Settlement Officer Consolidation was based upon consent and revision was not maintainable. The writ petition is also not maintainable as consent is not challenged in the writ petition also. 6. In the memorandum of revision, the petitioner has not raised any ground challenging that Settlement Officer Consolidation had wrongly recorded consent in the order. The order of Settlement Officer Consolidation was based upon consent and revision was not maintainable. The writ petition is also not maintainable as consent is not challenged in the writ petition also. 6. This Court in Shankar @ Surendra v. DDC and others 2003 (95) RD 66 , held that section 19(1)(e) of the Act provides that as far as possible every tenure holder should be allotted a compact area at the place where he holds largest part of his holding and section 19(1)(f) provides that every tenure holder is, as far as possible, allotted the plot on which exists his private source of irrigation or any other improvement, together with an area in the vicinity equal to the valuation of the plots originally held by him. Thus section 19(1)(f) contain two objects, first to allot the plot to the tenure holder on which his private source of irrigation or any other improvement exists and second to allot equivalent area of the plots originally held the tenure holder, in the vicinity so that irrigation facility be properly utilized. In view of the aforesaid law laid down by this Court, the claim of both the parties based on the principles contained in section 19(1)(e) of the Act, is on equal footing as the petitioner and resppndent-4 both were co-sharers of equal share in plots 37 and 86/2. So far as the claim of the petitioner based on the principles contained in section 19(1)(f) of the Act, is concerned, the petitioner is entitled for allotment of chak on plot 82/2 of the area equivalent to the area of the plots originally held by her, in the vicinity. In the vicinity of plot 86/2, the petitioner was having her other original holding of plot 37. According to the order of Settlement Officer Consolidation, she was allotted the area equivalent to the area originally held by her. Thus dictum of Shankar @ Surendra v. DDC and others 2003 (95) RD 66 , has been rightly applied. 7. The petitioner, in paragraph-2 of her memorandum of revision has stated that plots 37 and 86 situate on roadside, which is also proved from perusal of map. The roadside land used to have commercial value. Thus dictum of Shankar @ Surendra v. DDC and others 2003 (95) RD 66 , has been rightly applied. 7. The petitioner, in paragraph-2 of her memorandum of revision has stated that plots 37 and 86 situate on roadside, which is also proved from perusal of map. The roadside land used to have commercial value. Circular has been issued to allot chak to every tenure holder on his original holding, if it situates on roadside. This Court has also consistently directed to allot chak to every tenure holder on his original holding, if it situates on roadside. Some of the cases, in this respect is noted as Mukut Nath v. DDC and others 1998 RD 148, and Smt. Akbari v. DDC and others 2005 (98) RD 586. Impugned allotment is perfectly according to the law laid down by this Court. 8. So far as spot inspection is concerned, 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. Object of spot inspection has not been mentioned under this Section. By necessary implication, the object of spot inspection at the time of disposal of chak objection and appeal may be that Consolidation Officer and Settlement Officer Consolidation may ensure that principles contained under section 19(1)(e), (f) and (g) of the Act have been followed, in preparation of Provisional Consolidation Scheme. The dispute based on location, level, quality of the plots, proximity of the plots from source of irrigation and other improvement can more appropriately decided after local inspection. By using word "shall" in section 21(3)of the Act, it has been made mandatory for the Consolidation Officer, to make spot inspection who is original authority in the process of disposal of chak dispute but in the same section by using word "may" it was directory and left at the discretion of Settlement Officer Consolidation to make spot inspection. By using word "shall" in section 21(3)of the Act, it has been made mandatory for the Consolidation Officer, to make spot inspection who is original authority in the process of disposal of chak dispute but in the same section by using word "may" it was directory and left at the discretion of Settlement Officer Consolidation to make spot inspection. The discretion has to be exercise in the circumstances and the nature of controversy raised in appeal-By virtue of section 44-A of the Act, the power can be exercised by Deputy Director of Consolidation also at his discretion in the circumstances and the nature of controversy raised before him. Thus spot inspection is not mandatory for Settlement Officer Consolidation and Deputy Director of Consolidation. Simply for the reason that Consolidation Officer, who in every cases of chak objection is required to make spot inspection, it cannot be said that Settlement Officer Consolidation and Deputy Director of Consolidation are also required to make spot inspection before reversing his order. 9. Supreme Court in Bachahan Devi v. Nagar Nigam, Gorakhpur 2008 (71) ALR 166 (SC), held that the ultimate rule in construing auxiliary verbs like "may" and "shall" is to discover the legislative intent; and the use of the words "may" and "shall" is not decisive of its discretion or mandates. The use of the words "may" and "shall" may help the Courts in ascertaining the legislative intent without giving to either a controlling or a determinating effect. The Courts have further to consider the subject-matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed. Obviously where the legislature uses two words "may' and "shall' in two different parts of the same provision prima facie it would appear that the legislature manifested its intention to make one part directory and another mandatory. 10. The purpose of local inspection is to properly appreciate the arguments of the parties made on the basis of evidence already recorded during the trial and not to collect fresh evidence. Similar provisions for spot inspection in other statute may also be noticed. 10. The purpose of local inspection is to properly appreciate the arguments of the parties made on the basis of evidence already recorded during the trial and not to collect fresh evidence. Similar provisions for spot inspection in other statute may also be noticed. Order XVIII Rule 18 of Civil Procedure Code, 1908 contains provisions for local inspection by the Court as follows Order XVIII 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. 11. 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." 12. 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." 13. Supreme Court in State of H.P. v. Mast Ram 2004 (23) AIC 326 : AIR 2004 SC 5056 , has held that "apart, the local inspection envisaged under section 310 Cr.P.C. is for the purpose of properly appreciating the evidence already recorded during the trial. Supreme Court in State of H.P. v. Mast Ram 2004 (23) AIC 326 : AIR 2004 SC 5056 , has held that "apart, the local inspection envisaged under section 310 Cr.P.C. 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." In view of the aforesaid discussions, writ petition has no merit and is dismissed.