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2017 DIGILAW 2309 (ALL)

SUKHDEO v. JOINT DIRECTOR OF CONSOLIDATION

2017-10-07

RAM SURAT RAM (MAURYA)

body2017
JUDGMENT : Ram Surat Ram (Maurya), J. Heard Sri Triveni Shankar, for the petitioners and Sri Rakesh Pandey along with Sri M.L. Srivastava and Sri Rahul Sahai, for the contesting respondents. 2. The writ petition has been filed against the orders of Joint Director of Consolidation dated 08.12.1987 (Annexure-10) and Deputy Director of Consolidation dated 05.03.1982 (Annexure-3) to the writ petition, passed in reference proceeding under Section 48 (3) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. During consolidation, Jai Ram Pandey (respondent-3) (chak-62) was allotted three chaks, i.e. first chak of an area of 4-5-16 bigha, second chak of an area of 8-13-11 bigha and third chak of an area of 7-6-5 bigha. It has been stated that provisional consolidation scheme was confirmed and possession over confirmed chaks were delivered in 1968. Jai Ram Pandey moved the applications dated 19.07.1977 and 19.01.1978 before Consolidation Officer that area of his first chak was less to the extent of 0-13-4 bigha and second chak was less to the extent of 0-16-10 bigha on the spot and its area be completed. Consolidation Officer called for report from subordinate authorities on which the Consolidator/Assistant Consolidation Officer submitted their report dated 27.06.1978, showing deficiency of the area of chaks of Jai Ram Pandey as mentioned in his applications. Consolidation Officer then directed to prepare a reference under Section 48 (3) of the Act, in order to make deficiency of area as good. The Consolidator/Assistant Consolidation Officer submitted the reference under Section 48 (3) of the Act, which was forwarded by Consolidation Officer on 15.04.1981 and Settlement Officer Consolidation on 21.08.1981. 4. According to the petitioners, Consolidation Officer in his endorsement dated 15.04.1981 and Settlement Officer Consolidation in his endorsement dated 21.08.1981 (filed as Annexure-1 to the writ petition), did not recommend the reference as submitted by the Consolidator/Assistant Consolidation Officer, to be accepted on the ground that deficiency of the area of chak of Jai Ram Pandey was due to excess area of chak-127 and not due to increase of area of plot 510 to the extent of 0-3-13 bigha and plot 511 to the extent of 0-5-10 bigha, during consolidation. Deputy Director of Consolidation, after hearing the parties, by order dated 05.03.1982 (filed as Annexure-2 to the writ petition) dropped the reference. Order dated 05.03.1982 (Annexure-3 to the writ petition) is a fabricated order. 5. Deputy Director of Consolidation, after hearing the parties, by order dated 05.03.1982 (filed as Annexure-2 to the writ petition) dropped the reference. Order dated 05.03.1982 (Annexure-3 to the writ petition) is a fabricated order. 5. According to Jai Ram Pandey, Consolidation Officer in his endorsement dated 15.04.1981 and Settlement Officer Consolidation in his endorsement dated 21.08.1981 (filed as Annexure-CA-2 and Annexure-SCA-1 to Supplementary Counter Affidavit dated 16.07.2007), forwarded the reference as submitted by the Consolidator/Assistant Consolidation Officer, with an endorsement that it was a disputed reference. They were also satisfied that deficiency of the area of chak of Jai Ram Pandey was due to increase of area of plot 510 to the extent of 0-3-13 bigha and plot 511 to the extent of 0-5-10 bigha, during consolidation. Deputy Director of Consolidation, after hearing the parties, by order dated 05.03.1982 (filed as Annexure-3 to writ petition and Annexure-CA-4 to the Counter Affidavit) accepted the reference. Annexure-2 to the writ petition is a fabricated order. 6. Respondents-3 and 4 further stated that Sukhdeo and others (petitioners-1 to 3) filed an application dated 15.03.1982, for recall of the aforesaid order, which was rejected by Deputy Director of Consolidation by order dated 01.10.1983. Thereafter, they got another recall application dated 05.03.1984 filed through Nanhe Lal and others, which was rejected by Deputy Director of Consolidation by order dated 18.05.1984. Gaon Sabha filed another application for recall of the aforesaid order, which was rejected by Deputy Director of Consolidation by order dated 14.02.1985. Sukhdeo and others (petitioners-1 to 3) filed another application dated 27.08.1987 for recall of the aforesaid order, which was rejected by Deputy Director of Consolidation by order dated 17.11.1987. Thereafter, they got another recall application dated 29.03.1988 filed through Chhote Lal and others, which was rejected by Deputy Director of Consolidation by order dated 14.09.1989. Thereafter, Badri Prasad (petitioner-2/1) filed another application dated 22.04.1996 for recall of the aforesaid order, which was rejected by Deputy Director of Consolidation by order dated 19.01.2002. 7. Respondents-3 and 4 filed an application dated 23.06.1987, before Deputy Director of Consolidation for directing subordinate authorities to give effect to the order dated 05.03.1982 (Annexure-3 to the writ petition). Smt. Phuldei (petitioner 34) filed an objection in this application on the ground that new plot 72-ka (area 0.1.13 bigha) was allotted to her for house site which was approved by Sub-Divisional Officer on 25.10.1986. Smt. Phuldei (petitioner 34) filed an objection in this application on the ground that new plot 72-ka (area 0.1.13 bigha) was allotted to her for house site which was approved by Sub-Divisional Officer on 25.10.1986. In reference No. 154, there was no dispute in respect of plot 72-Ka, which was old parati. Major portion of plot 72-ka was allotted to various other persons of the village. It is alleged that objection of Smt. Phuldei was rejected on 07.08.1987. In the meantime, Jai Ram Pandey also moved an application before Consolidation Commissioner, U.P. for conducting an inquiry in respect of order of Deputy Director of Consolidation dated 05.03.1982 (Annexure-2 to the writ petition). Sukhdeo and others (petitioners-1 to 3) filed an objection in this application. However, Joint Director of Consolidation was satisfied that order of Deputy Director of Consolidation dated 05.03.1982 (Annexure-3) was a genuine order and by impugned order directed for its implementation on priority basis. Hence this writ petitions has been filed. 8. It may be mentioned that this Court by order dated 25.03.2008, directed the Collector to hold an inquiry in respect of restoration application dated 27.08.1987 allegedly filed by Sukhdeo and others, for recall of the order dated 05.03.1982, which was allegedly rejected by Deputy Director of Consolidation by order dated 17.11.1987 and issuance of its certified copy on 23.10.1997. The Collector submitted his report dated 18.04.2008, mentioning therein that record relating to Reference Case No. 154 and restoration application dated 27.08.1987 filed in it were not consigned to the record room and were not available. Shyam Narain Singh, who was posted as the reader of Deputy Director of Consolidation in 1997, had died on 14.02.2002 as such nothing can be said about authenticity of certified copy of the order dated 17.11.1987, allegedly issued on 23.10.1997. 9. I have considered the arguments of the counsel for the parties and examined the record. A perusal of CH Form-5 of petitioners-1 to 3 shows that area of plot 511 was recorded as 0-16-10 bigha in it, while in CH Form-11 it came to be recorded as 1-2-0 bigha. In the alleged report dated 21.08.1981 and order dated 05.03.1982 (Annexures-1 and 2 to the writ petition) it has been mentioned that during survey area of plot 511 was found as 1-2-0 bigha but no order of competent authority was passed for enhancement of area. In the alleged report dated 21.08.1981 and order dated 05.03.1982 (Annexures-1 and 2 to the writ petition) it has been mentioned that during survey area of plot 511 was found as 1-2-0 bigha but no order of competent authority was passed for enhancement of area. Thus without any order of competent authority, enhanced area has been recorded in CH Form-11, due to which petitioners-1 to 3 were allotted chak of enhanced area. This Court in Umesh Kumar v. DDC and others, 2006 (100) RD 508, has held that consolidation authorities have no jurisdiction to enhance or reduce area of any plot. Thus petitioners-1 to 3 were allotted excess land than what they were entitled. 10. So far as new plot 73 belonging to petitioners-1 to 3 is concerned, in the reports of subordinate consolidation authorities it has been mentioned that new plot no. 73 was carved out from old plot 206, which was original holding of Jai Ram Pandey (respondent-3). A perusal of the map also shows that old plot 206 was a roadside land. The petitioners could not adduce any other evidence to contradict this report. Subordinate consolidation authorities recommended for allotting plot 73 to Jai Ram Pandey, as it was his roadside original holding on which petitioners- 1 to 3 have been allotted chak giving undue benefit as well as area of this plot was the area, which was increased by consolidation authorities without any order of competent authority. By impugned orders no prejudice has been caused to them. 11. The counsel for the respondents pointed out that in Annexure-2 to the writ petition, it has been mentioned that notification of the village under Section 52 of the Act was made, although notification under Section 52 of the Act was made on 10.04.1982 (Annexure-CA-3) i.e. subsequent to the order dated 05.03.1982. From which it is apparent that Annexure-2 to the writ petition was a fabricated order. The petitioner has not filed certified copy of order dated 05.03.1982 (Annexure-2 to the writ petition) while respondent-4 has filed certified copy of order dated 05.03.1982 (Annexure-3 to the writ petition) as such the contention of the petitioners that Annexure-3 to the writ petition is a fabricated order is not liable to be believed. 12. The petitioner has not filed certified copy of order dated 05.03.1982 (Annexure-2 to the writ petition) while respondent-4 has filed certified copy of order dated 05.03.1982 (Annexure-3 to the writ petition) as such the contention of the petitioners that Annexure-3 to the writ petition is a fabricated order is not liable to be believed. 12. From the report of subordinate consolidation authorities, it is also proved that area of first chak of Jai Ram Pandey was less to the extent of 0-13-4 bigha and second chak was less to the extent of 0-16-10 bigha on the spot than its recorded area. Total deficiency in area was 1-9-14 bigha. The reference submitted to cover this deficiency of area could not be dropped in normal circumstance. At the most, if Deputy Director of Consolidation was not satisfied with the method for covering this deficient area, as reported in the reference, he could have called for another report. Annexure-2 to the writ petition does not contain any reason for dropping the reference. 13. Reaction of the parties, subsequent to order dated 05.03.1982 is also relevant. According to the respondents, petitioners-1 to 3 filed an application dated 15.03.1982, for recall of the aforesaid order, which was rejected by Deputy Director of Consolidation by order dated 01.10.1983. Thereafter, they got another recall application dated 05.03.1984 filed through Nanhe Lal and others, which was rejected by Deputy Director of Consolidation by order dated 18.05.1984. Gaon Sabha filed another application for recall of the aforesaid order, which was rejected by Deputy Director of Consolidation by order dated 14.02.1985. Sukhdeo and others (petitioners-1 to 3) filed another application dated 27.08.1987 for recall of the aforesaid order, which was rejected by Deputy Director of Consolidation by order dated 17.11.1987. Thereafter, they got another recall application dated 29.03.1988 filed through Chhote Lal and others, which was rejected by Deputy Director of Consolidation by order dated 14.09.1989. Badri Prasad (petitioner-2/1) filed another application dated 22.04.1996 for recall of the aforesaid order, which was rejected by Deputy Director of Consolidation by order dated 19.01.2002. Although filing of earlier recall applications by petitioners-1 to 3 has been denied but recall application dated 22.04.1996 filed by Badri Prasad (petitioner-2/1) and its rejection by order dated 19.01.2002 has not been denied. Badri Prasad (petitioner-2/1) filed another application dated 22.04.1996 for recall of the aforesaid order, which was rejected by Deputy Director of Consolidation by order dated 19.01.2002. Although filing of earlier recall applications by petitioners-1 to 3 has been denied but recall application dated 22.04.1996 filed by Badri Prasad (petitioner-2/1) and its rejection by order dated 19.01.2002 has not been denied. In case, earlier applications were not filed by petitioners-1 to 3, Badri Prasad (petitioner-2/1) would have moved an application for comparison of their signature on it. On the other hand, if reference was dropped on 05.03.1982, then Jai Ram Pandey would have challenged it as deficiency of his area was very large. 14. Chak of one Ram Autar was also affected by order dated 05.03.1982 (Annexure-3 to the writ petition) but he has not challenged this order. Gaon Sabha land was also allotted to Jai Ram Pandey by impugned order but Gaon Sabha has also not challenged it. So far as claim of Smt. Phuldei (petitioner-4) is concerned, she in her application before Deputy Director of Consolidation has stated that new plot 72-ka (area 0.1.13 bigha) was allotted to her for house site which was approved by Sub-Divisional Officer on 25.10.1986. Petitioner-4 could not produce copy of patta granted to her. Tahsildar in his report dated 25.10.2012 has mentioned that khatauni of plot 72-Ka contained an amaldaramad of the name of Phuldei was made in it on the basis of order of Tahsildar dated 23.10.2003 i.e. subsequent to her filing objection before Deputy Director of Consolidation but there is no record relating to allotment of land to Smt. Phuldei. Smt. Phuldei (petitioner-4) has failed to prove that she was an allottee of plot 72-Ka. 15. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.