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2017 DIGILAW 174 (ALL)

Firoz Ahmad v. D. D. C.

2017-01-12

ANJANI KUMAR MISHRA

body2017
JUDGMENT Anjani Kumar Mishra,J. Heard learned counsel for the petitioners, Shri Brij Kumar Yadav, learned counsel for the Gaon Sabha, learned Standing Counsel for the State-respondents and Shri Vishnu Bihari Tiwari, learned counsel for the caveators. 2. At the very outset, the objection of Shri Vishnu Bihari Tiwari is that although service upon the heirs of respondents 2 and 4 has been held to be sufficient, he may be granted time to obtain Vakalatnama and to file a counter affidavit on their behalf. 3. He additionally submits that the matter is of the year 2008 and he had filed a caveat. The Court had never granted any time to the caveators for filing a counter affidavit and, therefore, the matter cannot be heard and decided, at this stage. 4. This objection, in my considered opinion, is nothing but a ploy to keep the matter pending unnecessarily. There is no justification as to why, in case, the caveators wanted to contest the writ petition, they chose not to file any counter affidavit for eight long years, despite being aware of the pendency of the writ petition. 5. Notices, in a writ petition, are issued to a party, if, unrepresented and thereafter, the party put to notice has a right to contest the writ petition by filing a counter affidavit. The purpose of the notice is only to intimate a respondent about the institution of the case against him. The respondents were fully aware of the filing of the writ petition as they had lodged a caveat. 6. Under the circumstances, therefore, I do not find any substance in the objection raised that no counter affidavit is liable to be filed till such time the Court had specifically granted time to file counter affidavit. It is true that every respondent has a right to oppose a writ petition by filing a counter affidavit but this does not mean that in every case, a counter affidavit is to be filed only after time for the same is granted by the Court. 7. Besides, it appears that during the pendency of the petition, two of the respondents, namely, respondents 2 and 4 died. The applications filed to bring on record, their heirs were allowed and thereafter vide order dated 30.9.2016, notices were issued to the newly impleaded opposite parties. 7. Besides, it appears that during the pendency of the petition, two of the respondents, namely, respondents 2 and 4 died. The applications filed to bring on record, their heirs were allowed and thereafter vide order dated 30.9.2016, notices were issued to the newly impleaded opposite parties. The order dated 30.9.2016 is quoted herein below: "Notice be issued to the newly impleaded opposite parties, who may file counter affidavit to the main petition on the receipt of the notice. List on 02.01.2017 before the regular Court." 8. The service of notices upon the newly added heirs of deceased-respondents 2-4 have been held to be sufficient by a separate order passed today. None has put in appearance on behalf of such newly added respondents, notices upon whom are deemed to be served. 9. Thus, the objection that no time was granted by the Court for filing counter affidavit is wholly incorrect and cannot be accepted. 10. Accordingly, the objection raised by Shri Vishnu Bihari Tiwari, learned counsel for the respondents is turned down. 11. I have, therefore, proceeded to hear the writ petition and am deciding the same finally. 12. This writ petition arises out of proceedings for allotment of chaks and is directed against the order dated 7.1.2008 passed by the Deputy Director of Consolidation. This order is a common order passed in two revisions filed before the DDC challenging the same order passed by the Settlement Officer Consolidation. 13. The first revision was filed by the Gaon Sabha and second one was filed by the contesting respondents in this writ petition. 14. From perusal of the record and the submissions made, it transpires that the plot in issue in the writ petition is Plot No. 346/1, which was recorded in the name of Gaon Sabha. 15. An objection was filed by the predecessor in interest of petitioner. The Consolidation Officer by his order dated 1.4.1996, allowed the objection. Perusal of this order reveals that Plot No. 346/1M was included in the chak of the objector on the reasoning that he was in cultivatory possession of land situated north of this plot No. 346/1, and which was also part of the larger Plot No. 346. 16. Against this order, passed by the Consolidation Officer, the Gaon Sabha as also the contesting respondents filed appeals. These appeals came to be dismissed by order dated 17.12.2005. 16. Against this order, passed by the Consolidation Officer, the Gaon Sabha as also the contesting respondents filed appeals. These appeals came to be dismissed by order dated 17.12.2005. Perusal of this order reveals that the appeal of the contesting respondents, had been filed only on the ground that certain trees planted by them had been included in the chak of the petitioners' predecessor in interest. 17. Apart from above, the other issue raised was that the Gaon Sabha had been deprived a valuable land. 18. The consequential revision, filed by the two appellants, has been allowed by the impugned order. 19. At the revisional stage, the contention of the revisionists was two fold. First that certain land, which was recorded as rasta, had been allotted in the chak of the petitioners' predecessor in interest, which was not permissible. 20. The second ground was that on account of modification made by shifting the petitioners' predecessor in interest from Plot No. 344/1 to 346/1, the change in the holding of the petitioners was more than 25%, which again was not permissible under law. 21. Upon a perusal of the impugned order, this Court finds that neither of the aforesaid two grounds raised, are the basis on which, the impugned order has been passed. 22. Insofar as, the question of a rasta being included in the chak of the petitioners is concerned, the same has been discussed by the Settlement Officer Consolidation while deciding the appeal and he has been held and there is no rasta in existence and the land shown as rasta in a map, has been valued. In absence of any material to the contrary, it is clear that the first ground of challenge, raised before the revisional court, in any case, was without substance. Land once valued can always be subject matter of allotment proceedings. In any case, the finding that no rasta was in existence on the spot was returned by the appellate court. 23. Even, the second contention, raised in the revisions, is without substance as is clear from a perusal of the CH Form- 23 of the petitioners, which is available on record. This Court, on a careful perusal of this document, does not find that the change in area of the chaks belonging to the petitioners differ by more than 25% insofar as the original holding and the chaks proposed are concerned. 24. This Court, on a careful perusal of this document, does not find that the change in area of the chaks belonging to the petitioners differ by more than 25% insofar as the original holding and the chaks proposed are concerned. 24. This Court is also constrained to observe that there is absolutely no reason contained in the impugned order as to why the petitioners were liable to be shifted from Plot No. 346/1, especially, when the Consolidation Officer had granted them relief on the reasoning that the petitioners were in cultivatory possession over a portion of Plot No. 346 and a contiguous area of the same plot, numbered as 346/1, was, therefore, included in the chak. 25. This Court does not find any illegality in the order passed by the Consolidation Officer and for this reason, the impugned revisional order, insofar as it reverses this order without assigning any reason for such reversal, is liable to be set aside and order of the Consolidation Officer is liable to be affirmed. 26. However, the part of the impugned order whereby a double entry regarding Plot No. 344/1 has been corrected, the same is found to be justified and is, therefore, maintained. 27. In view of the above, this petition is allowed in part and the revisional order is set aside in part. 28. The consolidation authorities may, therefore, make necessary corrections/modifications in the chak allotted to the petitioners in accordance with the order of the Consolidation Officer, which is hereby affirmed. They shall thereafter reduce its area to the extent of the double entry regarding Plot No. 344/1. 29. Accordingly and in view of the above discussion, this writ petition succeeds in part and to the extent noted above.