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2016 DIGILAW 4036 (ALL)

Jamaluddin v. Deputy Director of Consolidation Sitapur Camp At Kheri

2016-12-15

ANIL KUMAR

body2016
JUDGMENT Anil Kumar, J. Heard Sri Avadesh Kumar, learned counsel for petitioner, learned State counsel as well as Sri Pankaj Kr. Srivastava, learned counsel for respondents and perused the record. 2. By means of the present writ petition the petitioner has has challenged the impugned order dated 27.05.1988 (Annexure No. 5) and order dated 02.11.1988 (Annexure No. 6) passed by Dy. Director of Consolidation. 3. Facts in brief of the present case are that when the village comes under the Consolidation Officer, objection under Section 21(1) of the U.P. Consolidation of Holdings Act has been filed by the parties and by means of order dated 05.03.1987, Consolidation officer decided the said objections. Aggrieved by the same, Jagannath/respondent No. 2 filed an appeal No. 332 under Section 22(2) of the Act, by means of order dated 24.03.1988, the appeal was allowed. After the passing of the order dated 24.03.1988 as the original chak of the petitioner which is at plot No. 396 has not been given to him, so he filed a revision challenging the order passed by the Settlement Officer Consolidation dated 24.03.1988. 4. After hearing the parties and going through the record as well as taking into consideration the fact that Jagannath has not been allotted the chak at his original plot No. 396 and the persons who have not got original chak at plot no. 396, the respondent No. 2 has been allotted original chak by means of order dated 27.05.1988 passed by respondent No. 1, thereafter on behalf of petitioner/Jamaluddin, an application has been moved for recall of the said order on the ground that he has not been heard. Dy. Director of Consolidation by means of order dated 02.11.1988 has rejected the application for recall giving finding therein that Jagannath who has field the application for recall does not want to take a chak at his original chak. Aggrieved by the order dated 27.08.1988 and 02.11.1988 passed by respondent No. 1 present writ petition has been filed. 5. Sri Avadesh Kumar, learned counsel for petitioner has submitted that once the appeal filed by respondent No. 2 has been allowed then he has no authority to challenge the appellate order dated 24.03.1988, so the order dated 27.05.1988 is bad. 6. 5. Sri Avadesh Kumar, learned counsel for petitioner has submitted that once the appeal filed by respondent No. 2 has been allowed then he has no authority to challenge the appellate order dated 24.03.1988, so the order dated 27.05.1988 is bad. 6. Next argument advanced by learned counsel for petitioner that he has not been given opportunity while passing the order dated 27.05.1988, so the order dated 27.05.1988 and 02.11.1988 are in violation of principles of natural justice, liable to be set aside. 7. Sri Pankaj Kr. Srivastava, learned counsel for respondents opposing the writ petition submits that as the petitioner has not given original chak at plot No. 396 whereas the original chak lies and his grievance has not been considered at the appellate stage, so even the appeal is allowed and he filed a revision and by means of order dated 27.05.1988, the respondent No. 4 has been given a chak at his original chak holding no. 396 thereafter the petitioner moved an application for recall of the said order and after hearing the parties concerned and going through the record, the Dy. Director of Consolidation by means of order dated 02.11.1988 rejected the recall application. 8. I have heard learned counsel for parties and going through the record. 9. In order to decide the controversy involved in the writ petition, it will be appropriate to see the intention of the legislature as provided under Section 19 of the U.P. Consolidation of Holdings Act. 10. The main thrust of Section 19 of the U.P. Consolidation of Holdings Act, 1952 is being summarized as under: - (i) the land allotted to the tenure-holder should not differ from the area of the original holding by more than twenty-five percent. (ii) every tenure-holder as far as possible be allotted to compact area at the place where he holds the largest part of his holdings (iii) tenure-holder should not be allotted more than three chaks except with the approval in writing of the Deputy Director of Consolidation (iv) every tenure-holder as far as possible be allotted plot on which his private source of irrigation or any other improvement is in existence (v) every tenure-holder be allotted as far as possible the chaks in conformity with the process of rectangulation. 11. 11. And intention of providing norms/guidelines regulating adjustment of chak appears to be that consolidation authorities may not be able to act in an arbitrary manner and at the same time interest of tenure-holder is protected. The use of words as far as possible at various places in Section 19 of the Act has been interpreted by this Court in several cases and it has been ruled that guidelines are to be followed unless it is not possible to follow them in a particular situation of the case. It is in this backdrop, the writ petitions coming to the Court against the orders arising out of chak proceedings are to be dealt with. Of course, so far the power of scrutiny by this Court is concerned that is not confined within the ambit of guidelines so provided in Section 19 of the U.P.C.H. Act, 1953 as the Court while exercising the equity jurisdiction can always balance the equity in a particular set of fact and therefore, it is in each individual case on its particular fact balance of convenience and equity between the parties is to be balanced. 12. Further, it is explicit from the proviso of Section 19 of the Act that in the course of adjustment of land, the area of holding allotted to a tenure-holder shall not differ from the area of his original holding by more than 25%. 13. Moreover, learned counsel for petitioner does not able to satisfy this Court that he has got original holding at plot No. 396 whereas from the material on record, the position which emerged out that respondent No. 2/Jagnnath has got his original holding at chak No. 394 and at the appellate stage, the same has not been granted, so he raised raised objection in respect to the same before Dy. Director of Consolidation by filing revision No. 169 of 1988 under Section 48(2) of the Act and by means of the order dated 27.05.1988, respondent No. 1 has allowed the revision inter alia holding therein that at plot No. 396 the revisionist/Jagannath has got his original chak, however he has not alloted his original holdings and in order to adjust the equity between the parties as per the provisions of Section 19 he has allowed the revision and given the chak to the petitioner. 14. 14. Next, submission of learned counsel for petitioner that once the appeal is allowed his favour then he cannot file a revision has got no force, because from the bare reading of Section 48 of the U.P. Consolidation of Holdings Act it is clear that the intention of legislature while enacting the said section is to the effect that a person aggrieved by any order passed by sub-ordinate authority, the same can be challenged in a revision and in the present case as stated hereinabove, the respondent No. 2 is aggrieved by the fact that he has not allotted the chak at original holding at 396 which is a superior quality, so the revision filed by him against the order dated 2403.1988 by Settlement Officer Consolidation is maintainable (See. Mazeed Ahmad Vs. Deputy Director of Consolidation, Allahabad and others, 2004 (97) Rd 542 and Dhanai and others Vs. D.D.C., 2011 (112) RD 324). 15. Last, argument advanced by learned counsel for petitioner that he has not been given any opportunity when the order dated 27.05.1988 has also got no force because from the perusal of the record, the position which emerged out that while considering the revision No.; 169 prior to passing of the order, Dy. Director of Consolidation stated that he has heard the parties concerned, however, after passing of the order dated 27.05.1988 petitioner moved an application for recall of the said order and while considering the said application, Dy. Director of Consolidation while passing the order dated 02.11.1988 has categorically given a finding of fact that Jamaludding/petitioner does not want to take his chak at his original holding and he wants to take a chak at different place which is original of some other person, which is not possible under law, so it cannot be said that petitioner could not heard in the matter in question and his grievance could not be heard by Dy. Director of Consolidation while passing the impugned order. 16. In view of the facts stated above, I do not find any illegality or infirmity in the impugned order under challenge in the writ petition. 17. For the foregoing reasons, the writ petition lacks merit and is dismissed.