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2018 DIGILAW 123 (ALL)

Ram Sewak v. D. D. C.

2018-01-11

SALIL KUMAR RAI

body2018
JUDGMENT & ORDER : Salil Kumar Rai, J. Case has been called out in the revised list. 2. No one has appeared on behalf of respondent No. 3, even though a counter-affidavit has been filed on behalf of respondent No. 3. 3. Sri S. K. Mishra, representing the petitioner and the Standing Counsel representing respondent Nos. 1 and 2 are present. 4. A perusal of the order-sheet shows that no notices have yet been issued by the Office to respondent Nos. 4 to 13. A perusal of the writ petition shows that the issue in the writ petition relates to a dispute between the petitioner and respondent No. 3 and does not affect respondent Nos. 4 to 13. Since the case is pending since 2001 the same is being decided without issuing any notice to respondent Nos. 4 to 13. 5. During the consolidation operations conducted under the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as Act), petitioner was allotted two chaks at the level of Assistant Consolidation Officer. One chak consisted of plot Nos. 15, 16 and 23 while the other chak consisted of plot nos. 20, 33/2, 41, 42, 43, 44 and 45. At the stage of Assistant Consolidation Officer, the respondent No. 3 was allotted three chaks. One chak allotted to respondent No. 3 consisted of plot Nos. 15, 16, 17 etc., the second chak consisted of plot nos. 33/2, 34, 38 etc., while the third chak consisted of plot Nos. 56, 58 and 59. All the three chaks allotted to respondent No. 3 included her original holdings. The aforesaid facts are evident from C. H. Form No. 23 relating to the petitioner (annexed as Annexure No. 1 to the writ petition) and order dated 22.11.1999 passed by Joint Director of Consolidation in Revision No. 2276 and annexed as Annexure-4 to the writ petition. The facts stated in order dated 22.11.1999 have not been rebutted by respondent No. 3 in her counter-affidavit. The chaks allotted to the petitioner were adjacent to plot no. 17 which contained his private source of irrigation. The arrangement of chaks by the Assistant Consolidation Officer was modified by the consolidation officer vide his order dated 22.10.1997 and through the said order the Consolidation Officer allotted the chak consisting of plot nos. 56, 58 and 59 to the petitioner and chak consisting of plot nos. 17 which contained his private source of irrigation. The arrangement of chaks by the Assistant Consolidation Officer was modified by the consolidation officer vide his order dated 22.10.1997 and through the said order the Consolidation Officer allotted the chak consisting of plot nos. 56, 58 and 59 to the petitioner and chak consisting of plot nos. 20, 33/2, 41, 42, 43, 44 and 45 to respondent No. 3. According to the petitioner, the aforesaid modification made by the Consolidation Officer adversely affected the petitioner as the chak consisting of plot nos. 56, 58 and 59 was far from plot no. 17 on which the petitioner has his private source of irrigation. The fact that plot no. 17 was adjacent to the chaks allotted to the petitioner at the stage of Assistant Consolidation Officer has also not been effectively denied by respondent No. 3 in her counter-affidavit. Against the modification in allotment of chak made by the Consolidation Officer vide his order dated 22.10.1997, the petitioner filed an appeal before the Settlement Officer of Consolidation, who after considering that the chak allotted to the petitioner at the stage of Assistant Consolidation Officer were adjacent to his private source of irrigation, set aside the order dated 22.10.1997 passed by the Consolidation Officer and restored the allotment of chak as made by the Assistant Consolidation Officer. The aforesaid order was passed by the Consolidation Officer on 30. 08. 1999. Against the order dated 30.08.1999 passed by the Settlement Officer of Consolidation, respondent No. 3 filed a revision before the respondent No. 1 i.e. the Joint Director of Consolidation/Deputy Director of Consolidation under Section 48 of the Act, 1953 which was numbered as revision No. 2276. In the aforesaid revision, the petitioner and respondent No. 3 filed a compromise and prayed that they may be allotted chaks according to the compromise. However, the Joint Director of Consolidation vide his order dated 22.11.1999 dismissed revision No. 2276 holding that it was not possible to arrange chaks between the petitioner and respondent No. 3 according to the compromise filed by them. In his aforesaid order the respondent No. 1 further held that all the three chaks allotted to respondent No. 3 included her original holdings. In his aforesaid order the respondent No. 1 further held that all the three chaks allotted to respondent No. 3 included her original holdings. In the aforesaid order dated 22.11.1999 passed by the Joint Director of Consolidation, there is a recital that the parties have been heard and the revision is being decided on the basis of arguments advanced by the parties, i.e., the petitioner and respondent No. 3. Subsequently, respondent No. 3 filed an application in Revision No. 2276 praying that the order dated 22.11.1999 be recalled stating that in view of compromise application, the petitioner and respondent No. 3 were not heard on merits and order dated 22.11.1999 was passed without hearing the parties on merit. The Joint Director of Consolidation vide his order dated 14.12.1999 allowed the aforesaid application filed by respondent No. 3 and recalled his previous order dated 22.11.1999. Subsequently by his impugned order dated 18.1.2000 respondent No. 1 allowed revision No. 2276 filed by respondent No. 3 and set aside the order passed by the Settlement Officer of Consolidation and restored the arrangement of chaks as decided by the Consolidation Officer. The petitioner filed an application before the respondent No. 3 praying that the order dated 18.1.2000 be recalled and the revision may be decided on the basis of compromise filed by the parties. The aforesaid revision was dismissed by respondent No. 1 vide his order dated 15. 12. 2000. 6. The contention of the learned counsel for the petitioner is that the order dated 18.01.2000 passed by respondent No. 1-Joint Director of Consolidation, Rae Bareilly, Camp-Fatehpur is without jurisdiction as through the aforesaid order, the concerned Joint Director of Consolidation has reviewed his previous order dated 22.11.1999, even though under the Act, 1953, the Revisional Authority has no power to review its own order. It has been further argued by the learned counsel for the petitioner that before passing the order dated 22.11.1999 the Joint Director of Consolidation had also heard the petitioner and respondent No. 3 on the merits of their claim and the contention of respondent No. 3 as well as the opinion of the Joint Director recorded in his order dated 14.12.1999f, that the order dated 22.11.1999 was passed without hearing the parties on merits is contrary to records. Learned counsel for the petitioner has argued that the order dated 15.12.2000 is a consequence of order dated 18.01.2000 and, therefore, bad in law for the same reasons. On the basis of his arguments the learned counsel for the petitioner states that the orders dated 18.01.2000 and 15.12.2000 are illegal and without jurisdiction and therefore liable to be set aside. 7. I have considered the pleadings in the case and the arguments of the counsel for the petitioner. 8. A perusal of the order dated 22.11.1999 passed by the Joint Director of Consolidation, Rae Bareilly shows that the said order was passed on the basis of arguments raised by the parties before the revisional authority. There is a recital in the order dated 22.11.1999 to the effect. The aforesaid recital was made after the Joint Director of Consolidation recorded its opinion that it was not possible to decide the revision on the basis of compromise filed by the parties. In subsequent orders dated 14.12.1999 and 18.01.2000 the Joint Director of Consolidation has not recorded any finding as to whether the aforesaid recital in the order dated 22.11.1999 is erroneous and contrary to record. The Joint Director could not have reheard the Revision on merits without recording a finding to the aforesaid effect. The recital in the order dated 14.12.1999 that the case was not heard on merits appears to have been made mechanically by the Joint Director of Consolidation. It is evident that the order dated 22.11.1999 was passed by the Joint Director of Consolidation after the parties to the said case i.e. the petitioner and respondent no. 3 were heard on merits of their claim. Further the order dated 22.11.1999 also considers the merits of the claim of the parties to the case. For the aforesaid reason, order dated 18.01.2000 passed by Joint Director of Consolidation amounts to a review of his previous order, a power which the revisional authority does not have under the Act, 1953. The aforesaid was sufficient to set aside the order dated 18.01.2000 passed by the Joint Director of Consolidation, Rae Bareilly. However, the Court has also heard the petitioner on the merits of his case. 9. The aforesaid was sufficient to set aside the order dated 18.01.2000 passed by the Joint Director of Consolidation, Rae Bareilly. However, the Court has also heard the petitioner on the merits of his case. 9. From a perusal of record, it is evident that the Settlement Officer of Consolidation vide his order dated 30.08.1999 had restored the arrangement of chaks made by the Assistant Consolidation Officer on the ground that the chaks allotted to the petitioner at the stage of Assistant Consolidation Officer were adjacent to plot no. 17 which contained the private source of irrigation of the petitioner. It is also evident from the order dated 22.11.1999 passed by the Joint Director of Consolidation that all the three chaks allotted to respondent No. 3 included her original holdings. A perusal of the order dated 18.01.2000 shows that in the aforesaid order the Joint Director of Consolidation has not considered the case of the petitioner and has passed the aforesaid order without considering the case of the petitioner that the chaks allotted to the petitioner at the stage of Assistant Consolidation Officer were adjacent to his private source of irrigation and the chaks consisting of plot nos. 56, 58 and 59 would be far from plot No. 17 on which his private source of irrigation existed. The aforesaid fact was necessary to be considered by the Joint Director of Consolidation in view of Section 19(1)(f) of Act, 1953 which is reproduced below:- "Every tenure-holder is, as far as possible, allotted the plot on which exists his private source of irrigation or any other improvement, together with an area in the vicinity equal to the valuation of the plots originally held by him there; and" 10. Thus, the order dated 18.01.2000 passed by the Joint Director of Consolidation is vitiated because of non-consideration of relevant statutory provisions. On the other hand, all the three chaks allotted to respondent no. 3 till the stage of Settlement Officer of Consolidation included her original holdings and the aforesaid allotment/arrangement of chaks was not contrary to any statutory provision as under Section 19 of the Act, 1953 a tenure holder can be allotted three chaks. On the other hand, all the three chaks allotted to respondent no. 3 till the stage of Settlement Officer of Consolidation included her original holdings and the aforesaid allotment/arrangement of chaks was not contrary to any statutory provision as under Section 19 of the Act, 1953 a tenure holder can be allotted three chaks. A perusal of the order dated 22.11.1999 shows that the third chak allotted to respondent No. 3 consisted of plot No. 59 which was her original holding and the only demand of respondent No. 3 was that she should not be allotted three chaks. As stated earlier, the aforesaid demand is not supported by Section 19 of Act, 1953. No valid reasons have been given by the Joint Director of Consolidation in his order dated 18.01.2000 to disturb the arrangement of chak as made by the Assistant Consolidation Officer and upheld by the Settlement Officer of Consolidation through his order dated 30. 08. 1999. For the aforesaid reason also the impugned order dated 18.01.2000 passed by the Joint Director of Consolidation is liable to be set aside. As the order dated 15.12.2000 is a consequence of order dated 18.01.2000, the order dated 15.12.2000 passed by the respondent No. 1 is also liable to be set aside. 11. With the aforesaid observations, the writ petition is allowed. 12. The order dated 18.1.2000 and the order dated 15.12.2000 passed by respondent No. 1- Joint Director of Consolidation are quashed.