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2015 DIGILAW 746 (ALL)

Telhoo v. Dy. Director of Consolidation

2015-04-08

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Shri Arun Kumar Singh, learned Counsel for the petitioner and Shri Shamshad Ahmad holding brief of Shri Mahtab Alam, who has filed his appearance on behalf of the respondent No. 2 and learned Standing Counsel for the State-respondents as also respondent No. 4, the Deputy Director of Consolidation who has been impleaded in the writ petition by name also, and is represented by learned Standing Counsel. A counter affidavit filed on behalf of the respondent No. 2 is available on record. 2. This writ petition is directed against the order passed by the Deputy Director of Consolidation in revision No. 698 dated 16.8.1982 whereby a revision filed by the Pradhan of the Gaon Sabha has been allowed, the allotment of plot No. 266 in the chak of the petitioner has been set aside and the matter has been remanded back to the Consolidation Officer to allot equivalent valuation in the chak of the petitioner by drawing proceedings under section 42-A of the Act. 3. The facts of the case briefly stated are that plot No. 266 which was recorded as pokhri in the revenue records as also in the CH Form-2A appears to have been valued at two annas. 4. Subsequently an objection under section 20 was filed by the petitioner claiming that this plot be allotted in his chak, as it is situated in front of his house. This objection was allowed by the Consolidation Officer vide order dated 20.2.1977. A recall application belated by three years and six months is said to have been filed by the Gaon Sabha for recalling of this order. The Consolidation Officer by his order dated 12.2.1981 dismissed the recall application on the ground of laches. 5. Aggrieved by this order, the Pradhan preferred a revision which has been allowed by the impugned order dated 16.8.1982. Hence this writ petition. 6. Learned Counsel for the petitioner has submitted that the recall application filed on behalf of the Gaon Sabha was not competent inasmuch as the Pradhan had not been authorized to file the same. There was no resolution of the Gaon Sabha for the Land Management Committee, in this regard and that the recall application was filed only on account of enmity. 7. The second submission of the learned Counsel is that the recall application was highly belated. There was no resolution of the Gaon Sabha for the Land Management Committee, in this regard and that the recall application was filed only on account of enmity. 7. The second submission of the learned Counsel is that the recall application was highly belated. It was filed after the delivery of possession had taken place in the unit. The Gaon Sabha, therefore, was fully aware the allotment made in favour of the petitioner yet chose to take no action for three long years and therefore, the recall application was rightly rejected by the Consolidation Officer. The Deputy Director of Consolidation has allowed the revision without condoning this inordinate delay and therefore the matter be remanded back for consideration on the question of this inordinate delay occasioned in filing the recall application. 8. The next submission made is that the Deputy Director of Consolidation was himself competent to make a spot inspection. The spot inspection was made through an Advocate Commissioner. This was not permissible because the provisions of the Civil Procedure Code are not applicable to the proceedings under the U.P. Consolidation of Holdings Act. 9. Learned Counsel for the respondents have submitted that admittedly the plot in question namely plot No. 266 was recorded as pokhri. It was, therefore, land within the meaning of section 132 of the U.P. Zamindari Abolition and Land Reforms Act and, the same could not be the subject matter of the allotment in favour of any tenure-holder nor could bhumidhari rights be granted in such a land. Therefore, the impugned order calls for no interference. 10. I have considered the submissions made by the learned Counsel for the parties and have perused the record. 11. The Deputy Director of Consolidation while passing the impugned order has categorically recorded that plot No. 266 was recorded as pokhri since 1354 fasli. He has further observed that this entry of pokhri was also available in the CH Form-2A. He has, therefore, rightly held, that this land should not have been valued nor the same should have been allotted in the chak of any tenure-holder. 12. Learned Counsel for the petitioner has not been able to dispute this observation made in the impugned order. He has, therefore, rightly held, that this land should not have been valued nor the same should have been allotted in the chak of any tenure-holder. 12. Learned Counsel for the petitioner has not been able to dispute this observation made in the impugned order. It is, therefore, fully established on record that the plot in question in this writ petition, namely, plot No. 266 was a pond and, therefore, land by public utility covered by section 132 of the U.P.Z.A. and L.R. Act. 13. The submissions made by the learned Counsel for the petitioner are purely technical in nature. First, that there was no resolution of the Gaon Sabha for filing the restoration application and that the Deputy Director of Consolidation has set aside the order in favour of the petitioner without condoning the delay of more than three years in filing the restoration application. It is true that there is no order whereby the delay may be said to have been specifically condoned by the Deputy Director of Consolidation and to this extent the submissions made by the learned Counsel for the petitioner have substance. 14. Insofar as the second submission, that there was no resolution of the Gaon Sabha for prosecuting the litigation and filing the restoration application, an argument made before the Deputy Director of Consolidation that a resolution in this regard is duly passed is noticed in the order. However, the Deputy Director of Consolidation has failed to record any specific finding in this regard and therefore on this ground also the impugned order is found to be not proper. 15. As regards the third submission made by the learned Counsel for the petitioner that spot inspection was done through an Advocate Commissioner, learned Counsel for the petitioner has not been able to point out anything as to the manner in which he is aggrieved by such spot inspection. Further the points noted in the spot inspection report have neither been disputed nor challenged by the petitioner in the writ petition. 16. Moreover in my considered opinion, the said report is of no consequence as it is not the basis of the order impugned which has been passed primarily on the ground that the land in question was recorded in the revenue records as pokhri and, therefore, could not be the subject matter in chak allotment proceedings. 17. 16. Moreover in my considered opinion, the said report is of no consequence as it is not the basis of the order impugned which has been passed primarily on the ground that the land in question was recorded in the revenue records as pokhri and, therefore, could not be the subject matter in chak allotment proceedings. 17. As noted herein above, although the Deputy Director of Consolidation has not specifically condoned the delay in filing the restoration application nor has returned any specific finding as to whether the restoration application had been filed on behalf of the Gaon Sabha after a valid resolution in this regard had been passed, yet I refuse to interfere with the impugned order in exercise of my equity jurisdiction under Article 226 of the Constitution of India because setting aside the order impugned on technical grounds would result in reviving a totally illegal order that has been passed by the Consolidation Officer in favour of the petitioner. By this order, the land which was pokhri on the spot and so recorded since 1354 fasli right upto the date by issuance of CH Form-2A, could not have been valued or allotted in the chak of any private tenure-holder. In correcting this illegality the Deputy Director of Consolidation has done substantial justice between the parties by means of the order impugned. 18. Accordingly and for the reasons given above, I refuse to interfere with the impugned order as it does substantial justice between the parties and also because setting it aside will revive another illegal order. The writ petition is therefore dismissed. No order as to costs.