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2015 DIGILAW 559 (ALL)

Balvir Singh Tyagi v. D. D. C.

2015-03-25

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri C.K. Rai, learned Counsel for the petitioner and Sri Manish Goyal, who appears for respondent No. 2. Although a counter affidavit has been filed on behalf of other respondents also, none has appeared to make submissions in their behalf. 2. The writ petition arises out of proceedings for allotment of chaks, and is directed against the revisional order dated 13.11.1981 passed by the Deputy Director of Consolidation, Ghaziabad (for short, the DDC). 3. The petitioner is chak-holder No. 502, and respondent No. 2 is chak-holder No. 478. 4. Learned Counsel for the petitioner has submitted that the petitioner had been proposed a chak on plot Nos. 2294, 2336, 2337, etc. He was fully justified with the proposal and did not file any objection. Nor any objection was filed by anybody else against the proposed allotment in favour of the petitioner. 5. It appears that an appeal was filed by one, Rohtas, respondent No. 5. In this appeal, an objection was made against the allotment of chaks to the said appellant. This appeal was allowed by the Settlement Officer, Consolidation, and in this process, the chak of respondent No. 2, was disturbed. Aggrieved by this order, respondent No. 2 preferred a revision, which has been allowed by the impugned order passed on 13.11.1981, disturbing the chak of the petitioner as well. 6. The submissions made by Sri CK Rai are, first, that the order impugned has been passed by the DDC in violation of the principles of natural justice, and, secondly, that the allotment made in favour of the petitioner stood undisturbed till the appellate stage, and has been disturbed for the first time by the DDC. This modification in the chak of the petitioner has been made without adverting to the case of the petitioner, and without assigning any cogent reasons as to why the petitioner was being disturbed. 7. Sri Manish Goyal has refuted the submissions made by the learned Counsel for the petitioner. He has referred to paragraphs 31, 32, 33 and 34 of the counter affidavit in support of his contentions. He submits that the in-laws of the petitioner resided in the village in question and that the case was being prosecuted by the petitioner's brother-in-law, namely, Dharamvir, who appeared at every stage and also signed the order sheet . He has referred to paragraphs 31, 32, 33 and 34 of the counter affidavit in support of his contentions. He submits that the in-laws of the petitioner resided in the village in question and that the case was being prosecuted by the petitioner's brother-in-law, namely, Dharamvir, who appeared at every stage and also signed the order sheet . It has also been submitted that the petitioner had engaged a Counsel, who was duly heard prior to the passing of the order. Even a spot inspection was made in presence of Dharamvir, and his signature is to be found on the order-sheet of 13.11.1981, when the order was passed. He has further submitted that the primary dispute in the instant matter was with regard to plot No. 2294, which is the original holding of one Chandra Kiran. The DDC had decided the revision with respect to this plot. Since this plot has never been allotted to the petitioner, he cannot be said to be aggrieved by the order impugned. 8. On the merits of the claim of the petitioner, Sri Manish Goyal has relied upon the averments made in paragraph 12 of the counter affidavit, wherein detailed facts have been given justifying the impugned order. It has been submitted that there is no challenge in the writ petition to the petitioner being shifted from plot No. 2306 and, therefore, the order impugned cannot be faulted on this ground. He has further submitted that the primary dispute in the instant matter was with regard to plot No. 2294, which is the original holding of one Chandra Kiran. The DDC had decided the revision with respect to this plot. Since this plot has never been allotted to the petitioner, he cannot be said to be aggrieved by the order impugned. 9. In rejoinder, learned Counsel for the petitioner has invited the Court's attention to the averments made in paragraph 12 of the writ petition, wherein, apart from plot No. 2294, plot No. 2306 has also been mentioned and it has been averred that the petitioner has been shifted from this plot, to give unwanted benefit to the respondent. 10. I have considered the submissions made by the learned Counsel for the parties and have perused the record. 11. 10. I have considered the submissions made by the learned Counsel for the parties and have perused the record. 11. As regards the first submission of the learned Counsel for the respondent that the litigation was being prosecuted by the brother-in-law of the petitioner and, therefore, the order cannot be said to be ex-parte, it would suffice to state that there is nothing beyond the allegations made in the counter affidavit in this regard. Even though the allegations made in this regard have not been controverted in the rejoinder affidavit, and, therefore, the same are liable to be accepted, the fact remains that there is no material to show that, in fact, the brother-in-law of the petitioner had been authorised to prosecute the litigation and, therefore, his presence alone cannot be held to be sufficient opportunity to the petitioner. In case, as alleged in the counter affidavit, the petitioner had engaged a Counsel who had made his submissions before the Revisional Court on his behalf, a copy of the power filed by the said Counsel would have been sufficient proof of the allegations made in this behalf. However, this document, which could easily have been filed, has not been filed. 12. Therefore, on the question of the violation of principles of natural justice, it appears that there are allegations and counter-allegations. There is no cogent material available on record that would enable this Court to rule on this question, which is purely a factual controversy. 13. As regards the merits of the impugned order, its perusal reveals that it has been passed on the ground that the parties to the revision had been allotted 'udaan' chaks and that this defect was being remedied. However, immediately after making the above-noted observation, the DDC observes that the petitioner, holder of chak No. 502, is being shifted to plot No. 2306. The parties are not at issue that plot No. 2306 is not the original holding of respondent No. 2, nor of any of the parties to this petition. 14. At this stage, Sri Manish Goyal has referred to paragraph 13 of the counter affidavit wherein it has been averred that plot No. 2306 was, in fact, the original holding of Chandrika Kiran, and not the petitioner, and that this fact has not been controverted in the rejoinder affidavit. 15. 14. At this stage, Sri Manish Goyal has referred to paragraph 13 of the counter affidavit wherein it has been averred that plot No. 2306 was, in fact, the original holding of Chandrika Kiran, and not the petitioner, and that this fact has not been controverted in the rejoinder affidavit. 15. It is, however, clear from the record that the petitioner has been shifted from plot No. 2306 and several other plots have been allotted in lieu thereof. There is no material on record to show as to who is the original holder of the plots, to which the petitioner has been shifted. It is equally true that even if plot No. 2306 was the original holding of Chandra Kiran, as alleged in the counter affidavit, the fact remains that the said Chandra Kiran had never objected to this allotment in favour of the petitioner. No other reason has been assigned in the impugned order and it contains absolutely no justification as to why the petitioner was shifted from plot No. 2306 and to this extent the order impugned is a non-speaking order. The DDC was bound to record reasons for shifting the petitioner but has failed to do so. 16. Thus, it appears that the order impugned is liable to be set aside the matter deserves to be remanded to the DDC, Ghaziabad, to pass fresh orders after hearing all concerned. 17. Accordingly, I set aside the order impugned and remand the matter back to respondent No. 1 to pass fresh order on the revision in accordance with law after hearing all concerned. This exercise may be completed expeditiously, preferably within a period of 4 months from the date a certified copy of this order is filed before him/her. The writ petition is allowed. The impugned order dated 13.11.1981 is set aside and the matter is remanded to respondent No. 1, DDC, Ghaziabad, for passing fresh orders after hearing all concerned and after considering their respective cases.