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2017 DIGILAW 1985 (ALL)

Jhullur v. Deputy Director of Consolidation

2017-08-25

ASHOK KUMAR

body2017
JUDGMENT : ASHOK KUMAR, J. 1. The present writ petition has been filed by the petitioner Jhullur by which the petitioner has challenged the order dated 1.9.1982 passed by the Deputy Director of Consolidation, Azamgarh passed in revision filed under Section 48 of the U.P. Consolidation and Holdings Act 1953 being Revision No.104 of 1983 (State of U.P. v. Jhullur and others). 2. Brief facts of the case are that the consolidation proceeding has started with respect of Plot Nos. 1091/2 area 0.023, 1091/2 area 0.140 and Plot No. 1092/2M area 0.235 of the Village Kanjara, Dilshadpur, Pargana Sigri District Azamgarh. 3. Proceedings under Section 20 of the Act carvation and allotment of Chaks were taken up in which the contesting respondent nos. 2 to 5 were satisfied with the Chaks allotted to them. According to the petitioner none of the aforesaid respondents claimed the disputed plots to be allotted to them. In view of the aforesaid, disputed plots were left Bachat land i.e. the Goan Sabha property. It is further submitted that the provisional consolidation scheme was confirmed in the year 1974. 4. The petitioner was granted a Patta under Section 198 of the U.P.Z.A. & L.R. Act on 1.11.1975. The said Patta has been given to the petitioner by the Land Management Committee in accordance with the Rules. According to the petitioner he has invested some amount for the development of the said land which has been allotted to the petitioner by the Land Management Committee. The quality of the said land has been improved and accordingly, the same has become fit for the cultivation. The petitioner thereafter has started cultivation on the aforesaid land. There was certain dispute between the petitioner and respondent nos. 2 to 5 with regard to quantum of the shares. An application for revaluation of the dispute plot and for allotment of the same in favour of opposite party no.2 to 4 has been moved and the Assistant Settlement Officer without giving any opportunity or notice to the petitioner has revalued the disputed plots and has allotted the same in the Chak of the contesting respondents, as such has submitted a reference for acceptance of the same before the Deputy Director of Consolidation. 5. The said reference which has been submitted by the Assistant Settlement Officer has been accepted by the Deputy Director of Consolidation without giving any opportunity to the petitioner. 5. The said reference which has been submitted by the Assistant Settlement Officer has been accepted by the Deputy Director of Consolidation without giving any opportunity to the petitioner. According to the petitioner he was in lawful possession of the dispute plot/land and therefore he made an application for being heard and then to decide the issue. In his application the petitioner has raised the issue and has pleaded that the Deputy Director of Consolidation has no jurisdiction to revalue the disputed plots after confirmation of Provisional Consolidation Scheme and further that the disputed plot had already been valued and contesting respondents had not made any objections of the same to its valuation under Section 9 of the Act. It is further submitted that the opposite parties had not claimed the disputed plots at the stage of the proceedings initiated under Sections 20, 21 as well as under Section 48 of the Act. 6. The petitioner has submitted that there is a bar of Section 11A of the Act which provides that the said provision cannot be circumvented under Section 43 of the Act. It is further submitted that the disputed land in question was allotted to the petitioner after confirmation of the consolidation scheme and re-notified of the village under Section 52 of the Act. According to the petitioner the allotment under Section 198 of U.P. Act No.1 of 1951 cannot be cancelled nor it can be modified by the consolidation authority. The petitioner has further claimed that he has improved the land for better production of the agricultural products by investing certain amount and involving himself for doing labour for the aforesaid purposes. The Deputy Director of Consolidation has allotted more than three Chaks to the tenure holders therefore, the order of the Deputy Director of Consolidation is unjust, as such invalid. It is further contended that the respondents cannot be given Chak in violation of law and norms of justice. 7. On reference made by the Assistant Settlement Officer the Deputy Director of Consolidation has accepted the reference on 1.9.1982. However, according to the petitioner when the present writ petition has been filed, the petitioner was in possession of the disputed land/plot as such the order of the Deputy Director of Consolidation has not been implemented. 8. 7. On reference made by the Assistant Settlement Officer the Deputy Director of Consolidation has accepted the reference on 1.9.1982. However, according to the petitioner when the present writ petition has been filed, the petitioner was in possession of the disputed land/plot as such the order of the Deputy Director of Consolidation has not been implemented. 8. The petitioner therefore has prayed in this/present writ petition that an order to issue a writ of certiorari be issued by quashing the impugned order passed by the Deputy Director of Consolidation dated 1.9.1982 and further to pass suitable order as this Court deem fit under the circumstances of the present case. 9. While entertaining the present writ petition this Court has passed an interim order dated 3.2.1983 by which an order of status quo has been made while issuing the notices to the respondents opposite parties. The notices have issued and the same are sent. No one put appearance on behalf of the opposite parties. 10. During the pendency of the present writ petition since 1982 till date there are as many as four substitution applications are filed as some of the contesting opposite parties have expired. On the substitution applications this Court has issued the notices and the office has sent the substitution application supported by the delay consolation application to serve the same upon the heirs of the opposite parties. Learned counsel for the petitioner has taken the steps and in pursuance of the order of this Court the notices are sent, however, the office reports indicates that though the notices are sent upon the heirs of the respondents but neither the undelivered cover nor the A.D. has been received back. 11. Since the petition has been filed in the year 1982, almost about 35 years back and an interim order has been passed in favour of the petitioner and the counsel for the petitioner has intimated this Court that the petitioner is in possession of the land in dispute and the petitioner is regularly producing the agricultural products, therefore, there is no justification to keep the matter pending indefinitely particularly when no one is coming forward on behalf of the opposite parties. 12. 12. Today a supplementary affidavit has been filed on behalf of the petitioner and in para 3 of the said supplementary affidavit it has been contended that heirs of respondent no.3 are trying to encroach the land in question forcibly. It is further submitted that on one hand heirs of the respondent no. 3 are not participating in the present writ proceedings and on other hand they are trying to utilise the muscle power by forcibly evicting the petitioner. It is submitted that the act of the heirs of the opposite party no.3 is wholly illegal and this Court may pass an appropriate order. This Court finds that an application has been filed on behalf of the petitioner before the S.D.M. on 17.8.17 intimating him about illegal act of the heirs of the opposite party no.3. 13. In view of the aforesaid facts it is hereby directed that the Consolidation Officer should immediately take cognizance of the issue. The petitioner may approach the Consolidation Officer bringing the above facts to his knowledge, who will pass an order in accordance with law after verifying the issue so raised before him. 14. In view of the aforesaid facts since the opposite parties are not coming forward before this Court, this Court has no option but to allow the writ petition by setting aside the order passed by the Deputy Director of Consolidation dated 1.9.1982. 15. Accordingly, the writ petition is allowed.