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2018 DIGILAW 1173 (ALL)

JAIRAM SINGH v. DEPUTY DIRECTOR OF CONSOLIDATION

2018-05-09

SALIL KUMAR RAI

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JUDGMENT : Salil Kumar Rai, J. Heard Sri R.P. Yadav, counsel for the petitioner and Sri V.K. Chandel, Advocate representing respondent no. 4. 2. The facts of the case are that Plot No. 139/1 was the original holding of both petitioner and Ashwani Kumar and they had share in the same. Petitioner is chakdar no. 53 and Ashwani Kumar i.e. respondent no. 4 is chakdar no. 5. During the consolidation proceedings held in the village under the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953), petitioner was allotted a chak by the Assistant Consolidation Officer consisting of Plot Nos. 139/1 and 133/3. It appears that respondent no. 4 was not allotted any chak on Plot No. 139/1. It is stated that Plot No. 139/1 is adjacent to road. Further, Plot Nos. 134, 135 and 136 which were also the original holding of respondent no. 4 were also adjacent to road. Aggrieved by the arrangement of chaks made at the stage of Assistant Consolidation Officer whereby he was not allotted any chak on Plot No. 139/1, respondent no. 4 filed objections before the Consolidation Officer and the Consolidation Officer vide his order dated 28.5.2008 withdrew Plot No. 139/1 allotted in the chak of petitioner and allotted a chak to respondent no. 4 i.e. Ashwani Kumar consisting of Plot No. 139/1. A perusal of the schedule appended to the order dated 28.5.2008 passed by the Consolidation Officer and annexed as Annexure CA-4 to the counter affidavit shows that by the aforesaid arrangement of chak, respondent no. 4 was allotted a chak consisting of Plot Nos. 134, 135, 136 and 139/1. Evidently, respondent no. 4 was allotted all the plots of his original holding which were adjacent to road. Aggrieved by the arrangement of chaks as made by the Consolidation Officer, the petitioner filed appeal before the Settlement Officer of Consolidation which was numbered as Appeal No. 1197. Respondent no. 4 also filed appeal which was numbered as Appeal No. 1209. The appeal was filed by the petitioner claiming a chak on Plot No. 139/1 and the appeal was filed by respondent no. 4 claiming that Plot Nos. 123 and 124 included in his chak be withdrawn and he may be allotted total area of Plot No. 139/1. The Settlement Officer of Consolidation vide his order dated 7.10.2008 dismissed Appeal No. 1209 filed by respondent no. 4. 4 claiming that Plot Nos. 123 and 124 included in his chak be withdrawn and he may be allotted total area of Plot No. 139/1. The Settlement Officer of Consolidation vide his order dated 7.10.2008 dismissed Appeal No. 1209 filed by respondent no. 4. and partly allowed Appeal No. 1197 filed by the petitioner and allotted 0.171 decimal in Plot No. 139/1 to the petitioner after withdrawing an equivalent portion in the same from respondent no. 4. Dissatisfied with the arrangement of chak made by Settlement Officer of Consolidation, the petitioner as well as respondent no. 4 filed revision under Section 48 of the Act, 1953 before the Deputy Director of Consolidation registering Revision Nos. 1155 of 2008 and 1159 of 2008. The Deputy Director of Consolidation vide his order dated 6.10.2009 disposed of the aforesaid revisions and withdrew Plot No. 139/1 from the chak allotted to the petitioner and relegated him to the stage of the Consolidation Officer and added the aforesaid area of Plot no. 139/1 in the chak allotted to respondent no. 4. The order dated 6.10.2009 passed by the Deputy Director of Consolidation has been challenged in the present writ petition. 3. It has been contended by counsel for the petitioner that Plot No. 139/1 was adjacent to road and in view of the judgments of this Court delivered in Jaswant Singh vs. D.D.C., Banda & Others, 2006 101 RevDec 207, Awadhesh Kumar & Ors. vs Director of Consolidation & Ors., (2014) 122 RevDec 47, Smt. Chandra Jota & Ors. vs Deputy Director of Consolidation & Ors., (2007) 103 RevDec 556 and Sanjay & Another vs Director of Consolidation & Ors., 2013 121 RevDec 561, the petitioner should have been allotted a chak on Plot No. 139/1 and the order dated 6.10.2009 passed by the Deputy Director of Consolidation withdrawing Plot No. 139/1 from the chak allotted to the petitioner is patently illegal and liable to be set-aside. Rebutting the arguments of counsel for the petitioner, Sri V.K. Chandel, counsel for respondent no. 4 has argued that the petitioner had merely 1/3 share in Plot No. 139/1 and by the arrangement of chak as made till the stage of Settlement Officer of Consolidation, the share of respondent no. Rebutting the arguments of counsel for the petitioner, Sri V.K. Chandel, counsel for respondent no. 4 has argued that the petitioner had merely 1/3 share in Plot No. 139/1 and by the arrangement of chak as made till the stage of Settlement Officer of Consolidation, the share of respondent no. 4 in Plot No. 139/1 was not included in the chak allotted to him and therefore the order dated 6.10.2009 passed by the Deputy Director of Consolidation is according to law in as much as it includes the share of respondent no. 4 in Plot No. 139/1 in the chak allotted to him. 4. I have considered the records and rival submissions of counsel for the parties. 5. A perusal of the order dated 6.10.2009 passed by the Deputy Director of Consolidation as well as the other records annexed with the writ petition and the counter affidavit show that Plot Nos. 134, 135 and 136 were the original holding of respondent no. 4 and were also adjacent to road. It is also evident from the records that Plot No. 139/1 was adjacent to road and was the original holding of both the petitioner as well as respondent no. 4. I have also perused the schedule appended to the order of the Settlement Officer of Consolidation which shows that respondent no. 4 was allotted a chak on Plot Nos. 134, 135 and 136 and thus even though Plot No. 139/1 was not included in the chak allotted to respondent no. 4 even then respondent no. 4 had sufficient plots allotted to him which were adjacent to road. It is also evident from the records that initially at the stage of Assistant Consolidation Officer, the petitioner was allotted a chak on Plot No. 139/1 and the same was excluded from the chak of the petitioner by order of the Consolidation Officer but subsequently the Settlement Officer of Consolidation taking into consideration that Plot No. 139/1 was adjacent to road and respondent no. 4 had already been allotted Plot Nos. 134, 135 and 136 which were also adjacent to road excluded Plot No. 139/1 from the chak allotted to respondent no. 4 and allotted the same to the petitioner. Through his impugned order dated 6.10.2009, the Deputy Director of Consolidation has set-aside the aforesaid arrangement made by the Settlement Officer of Consolidation merely on the ground that respondent no. 134, 135 and 136 which were also adjacent to road excluded Plot No. 139/1 from the chak allotted to respondent no. 4 and allotted the same to the petitioner. Through his impugned order dated 6.10.2009, the Deputy Director of Consolidation has set-aside the aforesaid arrangement made by the Settlement Officer of Consolidation merely on the ground that respondent no. 4 should have been allotted his share in Plot No. 139/1 and as he has already been allotted chaks on Plot Nos. 134, 135 and 136 which were adjacent to road, therefore, he should also be allotted Plot No. 139/1 which was also adjacent to road. It is true that in view of the judgments of this Court, a tenure holder should be allotted, so far as possible, his original holding which is adjacent to road and the same should not be disturbed. In his order dated 6.10.2009, the Deputy Director of Consolidation has failed to consider that Plot No. 139/1 was also the original holding of the petitioner and by relegating the petitioner to the stage of Consolidation Officer, the petitioner was being deprived of a chak on Plot No. 139/1 which was adjacent to road. The reason given by respondent no. 1 that the petitioner had already been allotted more than his share in Plot No. 139/1 may have been a valid reason in dismissing the revision filed by the petitioner but without relegating him to the stage of Consolidation Officer and by retaining the allotment of chak as arranged by the Settlement Officer of Consolidation. Once the petitioner was relegated to the stage of Consolidation Officer, he was deprived of any portion on Plot No. 139/1. In the circumstances, the order dated 6.10.2009 passed by respondent no. 1 is not sustainable and is hereby set-aside. 6. The matter is remanded back to respondent no. 1 to pass fresh orders in the revisions filed by the petitioner and respondent no. 4. Respondent no. 1 shall decide and pass fresh orders within a period of four months from the date a certified copy of the order is produced before him. 7. It is clarified that respondent no. 1 shall decide the aforesaid revisions after issuing notices to and ensuring the presence of all the affected tenure holders. 8. With the aforesaid directions, the writ petition is disposed of.