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Allahabad High Court · body

2015 DIGILAW 836 (ALL)

Asia Khatoon v. D. D. C.

2015-04-16

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Tripathi B.G. Bhai for the petitioner and Sri P.N. Singh, for the contesting respondents-2 to 9. 2. The writ petition has been filed against the order of Deputy Director of Consolidation dated 22.09.2011 passed in chak allotment proceeding under UP Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute between the parties is in respect of allotment of chak on plot No. 146/2. Plot 146/1 (area 0.384 hectare) was original holding of the petitioner and respondents-2 to 9, in which the petitioner had 1/2 share. Plot 146/2 (area 0.381 hectare) was original holding of Ali Ahmad (chak-25) and Shakunatdar (chak-378). Assistant Consolidation Officer proposed a single chak to the petitioner on plot No. 146/1 and 146/2 of an area of 0.463 hectare. Ali Ahmad (respondent-10) was proposed his second chak on plots 138 etc. taking an area of 0.120 hectare of plot 146/2. Ali Ahmad and Shakunatdar did not file any objection claiming their chak on plot 146/2. The petitioner filed an objection for making her chak at this place in rectangular shape. Consolidation Officer by order dated 03.07.2009 allowed the objection of the petitioner and northern portion of plot 146/1 was left as bachat land her chak was shifted towards south. 4. Respondents-2 to 9 were proposed two chaks i.e. first chak on plots 172, 173 and 174 of an area of 0.605 hectare and second chak on plot 132, 133 and 134 of an area of 0.157 hectare. Respondents-2 to 9 filed an objection, in which initially they claimed for allotment of chak on plot 226, deleting their first chak on plots 172 etc and completing deficiency of their valuation. Subsequently, they amended their objection and claimed for allotment of chak on plot No. 146/2, alleging that plot 146/1 was the original holding of the parties however Assistant Consolidation Officer has illegally not carved out chak to them near his abadi rather carved out chak on plot No. 172 etc. and 132 etc. Consolidation Officer by a separate order dated 13.05.2009, partly allowed the objection of respondents-2 to 9 and completed their deficiency of the valuation, allotting them chak on plot 226 etc. Respondents-2 to 9 filed an appeal against the aforesaid order. and 132 etc. Consolidation Officer by a separate order dated 13.05.2009, partly allowed the objection of respondents-2 to 9 and completed their deficiency of the valuation, allotting them chak on plot 226 etc. Respondents-2 to 9 filed an appeal against the aforesaid order. The appeal was heard by Settlement Officer Consolidation along with other appeals of the village, who by order dated 21.08.2009, deleted chak of respondents-2 to 9 on plots 132 etc. and allotted its valuation on plots 226 etc. Thereafter the respondents filed a revision against aforesaid orders which has been allowed by order of Deputy Director of Consolidation dated 22.09.2011. The chak of the petitioner on plot 146/1 and 146/2 was shifted towards north and in its south respondents-2 to 9 were allotted chak on plot 146/2 of an area of 0.180 hectare. Hence this writ petition has been filed. 5. The counsel for the petitioner submitted that plot 146/1 was original holding of the petitioner and respondents-2 to 9 while plot 146/2 was original holding of respondent-10 and Shakunatdar. Deputy Director of Consolidation at the most could have allotted plot 146/1 to respondents-2 to 9, which was claimed by them on the ground of original holding. Deputy Director of Consolidation has illegally disturbed the chak of the petitioner on plot 146/2 and allotted it to respondents-2 to 9. Plot 146/2 situate near pitch road as such it is more valuable land, while northern portion of plot 146/1 was low fertile land. Deputy Director of Consolidation has allotted a very small area of 0.033 hectare of plot 172, at a long distance, as second chak to the petitioner. Cultivation of such an small area is not possible and allotment of small chak is contrary to the object of consolidation. In case, Deputy Director of Consolidation was disturbing the chak of the petitioner then she should have been allotted chak on her original holding. Deputy Director of Consolidation has neither considered the grievances of the parties nor recorded any reason for setting aside the orders of the Courts below and illegally allowed the revision and set aside the order of the two sub-ordinate authorities. The order of Deputy Director of Consolidation is illegal and liable to be set aside. Deputy Director of Consolidation has neither considered the grievances of the parties nor recorded any reason for setting aside the orders of the Courts below and illegally allowed the revision and set aside the order of the two sub-ordinate authorities. The order of Deputy Director of Consolidation is illegal and liable to be set aside. In case, respondents-2 to 9 are allotted chak on plot No. 146/2, then the chaks of both the parties be carved out in north-south shape so that the petitioner may also take benefit of roadside land. 6. I have considered the arguments of the counsel for the parties and examined the records. In light of last arguments of the counsel for the petitioner, the counsel for the respondents was asked to take instruction from respondents-2 to 9 as to whether they would be ready to change the shape of their chak in north south. The counsel for the respondents informed that respondents-2 to 9 are not ready to change the shape of their chak. He submitted that the respondents are 8 brothers. If partition takes place between them only 0.022 hectare will come in the share of each of them, which will be utilize by them for raising their house towards the road side. In view of clear denial, amicable settlement of dispute is not possible. As such this Court has no option but to examine the case on merit. 7. It is not disputed to the parties that plot 146/2 (area 0.381 hectare) was original holdings of respondent-10 and Shakunatdar, in which they had 1/2 share each. Respondent-10 was allotted an area of 0.120 hectare of plot 146/2 in his chak. Neither respondent-10 nor Shakunatdar filed any objection for allotment of their chak on remaining area of plot 146/2. Respondents-2 to 9 were co-sharer of 1/2 share of plot 146/1, which is near the abadi. A perusal of the chak map of chak 89, of the petitioner shows that an area of 0.426 hectare in the northern side was allotted to her. Some portion of chak 89 has been sold by the petitioner to third parties on which new chak number 89-A has been allotted in northern side. Deputy Director of Consolidation, therefore allotted chak to the petitioner, in northern side and chak to respondents-2 to 9 in southern side. 8. Some portion of chak 89 has been sold by the petitioner to third parties on which new chak number 89-A has been allotted in northern side. Deputy Director of Consolidation, therefore allotted chak to the petitioner, in northern side and chak to respondents-2 to 9 in southern side. 8. Plot 146/2, which is in southern side, was not original holding of the petitioner as such the petitioner cannot claim for allotment of chak on this plot as of right. Original holding of third party has been allotted to respondents-2 to 9 by Deputy Director of Consolidation, which cannot be claimed by the petitioner as of right as such the order of Deputy Director of Consolidation cannot held to be illegal. Although Deputy Director of Consolidation has not recorded any reason for allowing the revision but the fact that plot 146/1 was the original holding of respondents-2 to 9, which situate near the abadi of the parties and has been claimed by them from the stage of Consolidation Officer. Reason for claiming chak on plot 146/1 by contesting respondents was that they were 8 brothers and the chak near to abadi would be utilized by them for extension of abadi in future. Deputy Director of Consolidation has allotted an area of 0.180 hectare to the respondents at this place. Thus there was valid reason for allotment of chak to respondents-2 to 9 on plot 146. 9. In chak allotment matter, the petitioner has been allotted chak on her original holdings of major portion of her total area. Chak of respondents-2 to 9 was allotted on the original holdings of respondent-10 and Shakunatdar, who have no objection. A perusal of chak map shows that in between plot 146 and road of plot 148, pasture land of plot 147 situate as such it cannot be said that original holding of the petitioner was on road side. In case the chak is allotted in north- south to the parties even then the chaks will not come on roadside as such there is no reason for this Court to set aside the order of Deputy Director of Consolidation by which equity between the parties has been adjusted. 10. In case the chak is allotted in north- south to the parties even then the chaks will not come on roadside as such there is no reason for this Court to set aside the order of Deputy Director of Consolidation by which equity between the parties has been adjusted. 10. So far as the contention of the petitioner that small area of 0.033 hectare of plot No. 172 was allotted in her chak is concerned, since the chak carvation proceeding has been finalised, the deficiency of the area of the petitioner has been completed on plot 146/1 of an area of 0.136 hectare and remaining on plot 172 of an area 0.033 hectare which were bachat land. At this stage, claim of the petitioner for allotment of this area of 0.033 hectare on her original holdings is not possible, as other original holdings of the petitioner has been allotted in the chak of third parties, who are not party before this Court. 11. In view of the aforesaid discussions, the writ petition has no merit, it is dismissed.