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Allahabad High Court · body

2018 DIGILAW 1266 (ALL)

Madhuri v. D. D. C.

2018-05-18

SALIL KUMAR RAI

body2018
JUDGMENT : SALIL KUMAR RAI, J. 1. The above-mentioned writ petitions have been filed by different tenure holders against the same order passed by the Consolidation authorities and, therefore, vide order dated 10.8.2004 the said writ petitions were connected and are consequently being heard together and disposed of by a common order. 2. The respondent nos. 7 and 10 in Writ Petition No. 29266 of 2004 are petitioners in Writ Petition No. 31358 of 2004 and the petitioners in Writ Petition No. 29266 of 2004 are respondent nos. 3 and 4 in Writ Petition No. 31358 of 2004. The facts of Writ Petition No. 29266 of 2004 are being narrated in detail and the petitioners in the aforesaid writ petition shall be referred as petitioner in the judgment and the petitioners in Writ Petition No. 31358 of 2004 shall be referred as respondent no. 10 in the judgment. 3. In view of the office report dated 10.3.2005 in Writ Petition No. 29266 of 2004 and office reports dated 10.3.2005 to 20.5.2006 in Writ Petition No. 31358 of 2004, service of notice of the petition on other respondents are deemed to be sufficient. 4. Heard Sri Chandra Kumar Rai, counsel for the petitioner and Sri R.C. Singh, counsel for respondent no. 10. 5. The facts of the case are that petitioner is chak holder no. 598 while respondent no. 10 is chak holder no. 539. Plot Nos. 159 (area .121), 1118 (area .048) were the original holding of the petitioner and respondent no. 10 is a co-teure holder of Plot No. 157 with his share in the same being .15 hectares. It is admitted by the parties that Plot No. 157 is adjacent to road. During the consolidation proceedings held in the village, the petitioner was allotted a chak consisting of Plot Nos. 157 (.8)/159 (.81)/160 (.74) by the Assistant Consolidation Officer. Plot No. 160 was not fit for cultivation and agricultural purposes and, therefore, the petitioner filed objections under Section 20 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') before the Consolidation Officer which was dismissed by the Consolidation Officer vide his order dated 17.10.2000. 157 (.8)/159 (.81)/160 (.74) by the Assistant Consolidation Officer. Plot No. 160 was not fit for cultivation and agricultural purposes and, therefore, the petitioner filed objections under Section 20 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') before the Consolidation Officer which was dismissed by the Consolidation Officer vide his order dated 17.10.2000. Aggrieved by the order dated 17.10.2000, the petitioner filed an appeal under Section 21(2) of the Act, 1953 which was registered as Appeal No. 3212 and the said appeal was allowed by the Settlement Officer of Consolidation, District Ghazipur vide his order dated 2.2.2001 whereby Plot No. 160 was withdrawn from the chak of the petitioner and he was allotted appropriate areas in Plot Nos. 157 and 159 in lieu of Plot No. 160. In the meantime, other tenure holders had also filed appeal under Section 21(2) of the Act, 1953 which, it appears remained pending and as the order dated 2.2.2001 passed by the Settlement Officer of Consolidation was adversely affecting respondent no. 10, the respondent no. 10 filed a recall application in Appeal No. 3212 stating that the order dated 2.2.2001 was passed ex-parte against him and therefore, the said order be recalled and respondent no. 10 be heard on merits and fresh orders be passed in Appeal No. 3212. The aforesaid application was allowed by the Assistant Settlement Officer of Consolidation and consequently fresh orders were passed in Appeal No. 3212 which was connected with other appeals already pending before the Assistant Settlement Officer of Consolidation. The said order was passed by the Assistant Settlement Officer of Consolidation on 8.6.2001. Through the aforesaid order, the Assistant Settlement Officer of Consolidation withdrew Plot Nos. 157 and 159 allotted to the petitioner vide order dated 2.2.2001 and allotted the same to respondent no. 10 and consequently in lieu of the aforesaid plots, Plot No. 160 was allotted to the petitioner. Aggrieved by the judgment and order dated 8.6.2001 passed by the Assistant Settlement Officer of Consolidation, the petitioner filed a revision under Section 48 (1) of the Act, 1953 before the Deputy Director of Consolidation which was registered and numbered as Revision No. 665 and the said revision was connected with the revisions filed by other tenure holders who were also aggrieved by the order dated 8.6.2001 passed by the Assistant Settlement Officer of Consolidation. In the aforesaid revision, the petitioner raised, amongst other issues, the issue that the order dated 2.2.2001 was passed by the Settlement Officer of Consolidation after hearing all the concerned parties and the order dated 8.6.2001 passed by the Assistant Settlement Officer of Consolidation was, practically, a review of his previous order dated 2.2.2001 and therefore without jurisdiction. The Deputy Director of Consolidation vide his order dated 10.7.2003 disposed of all the revisions filed by different tenure holders including Revision No. 665 filed by the petitioner allotting chak to the petitioner on Plot Nos. 157, 159, 1110 and 165/2M and also allotted chak to the respondents on Plot Nos. 157 and 159. A perusal of the order dated 10.7.2003 would show that in the aforesaid order, the Deputy Director of Consolidation had directed to allot 069 aires in Plot Nos. 157 and 159 to the petitioner in his chak consisting of the aforesaid plots. Dissatisfied with the aforesaid arrangement of chaks, the petitioner filed an application before the Deputy Director of Consolidation praying that the order dated 10.7.2003 be recalled and fresh orders be passed in Revision No. 665 filed by the petitioner. The aforesaid application was allowed by the Deputy Director of Consolidation vide his order dated 24.6.2004 and the arrangement of chaks as made by him vide his order dated 10.7.2003 were modified by the Deputy Director of Consolidation. The petitioner is not satisfied with the order dated 24.6.2004 passed by the Deputy Director of Consolidation and has, therefore, challenged the same along with the order dated 10.7.2003. The orders dated 24.6.2004 and 10.7.2003 passed by the Deputy Director of Consolidation have also been challenged by respondent nos. 7 and 10 in Writ Petition No. 31358 of 2004. The grievance of respondent nos. 7 to 10 is that the area allotted to them on Plot No. 157 by the Deputy Director of Consolidation is less than their share in the same and as the said plot was adjacent to road, therefore, they were entitled to their full share in the same. 6. The grievance of respondent nos. 7 to 10 is that the area allotted to them on Plot No. 157 by the Deputy Director of Consolidation is less than their share in the same and as the said plot was adjacent to road, therefore, they were entitled to their full share in the same. 6. It has been argued by counsel for the petitioner that the order dated 8.6.2001 passed by the Assistant Settlement Officer of Consolidation was a review of his previous order dated 2.2.2001 and, therefore, the same was liable to be set-aside by the Deputy Director of Consolidation and the petitioner was entitled to be restored chaks allotted by order dated 2.2.2001 passed by the Settlement Officer of Consolidation. It has been further argued by counsel for the petitioner that Plot No. 159 (area .121 hect.) was the original holding of the petitioner which the petitioner was entitled to be allotted but through his orders dated 10.7.2003 and 24.6.2004, the Deputy Director has allotted much less area on Plot Nos. 157 and 159 to the petitioners. It has been further argued by counsel for the petitioner that through the order dated 10.7.2003 passed by the Deputy Director of Consolidation, the petitioner was allotted a chak of .069 hect. on Plot Nos. 157 and 159 while the schedule appended to the aforesaid order shows that the petitioner has been allotted only .014 hectares on the said plot. It has been argued by the counsel for the petitioners that for the said reasons, the orders dated 10.7.2003 and 24.6.2004 passed by the Deputy Director of Consolidation and 8.6.2001 passed by the Assistant Settlement Officer of Consolidation are liable to be set-aside and the petitioner is entitled to be restored chaks allotted by the Settlement Officer of Consolidation vide order dated 2.2.2001. The counsel for the respondents has argued that the order dated 24.6.2004 passed by the Deputy Director of Consolidation is without jurisdiction in as much as the aforesaid order has been passed on a recall application filed by the petitioner without recording any finding that the proceedings in Revision No. 665 culminating in the order dated 10.7.2003 were held ex-parte against the petitioner and therefore the said order amounts to a review of the order dated 10.7.2003 and is, therefore, without jurisdiction. It has been further argued by counsel for respondent nos. It has been further argued by counsel for respondent nos. 7 and 10 that the orders dated 24.6.2004 and 10.7.2003 passed by the Deputy Director of Consolidation are also bad in law in as much as respondent nos. 7 and 10 have been allotted merely .013 hectares on the chak consisting of Plot No. 157 which is less than their share on the same and they were entitled to their full share on the said plot as it was adjacent to road. It has been argued by the counsel for the respondents that, for the aforesaid reason, the orders dated 24.6.2004 and 10.7.2003 are liable to be set-aside and the order dated 8.6.2001 passed by the Assistant Settlement Officer of Consolidation is liable to be restored. 7. I have considered the rival submissions of counsel for the parties and also perused the records. 8. The argument of counsel for the petitioner that the order dated 8.6.2001 passed by the Assistant Settlement Officer of Consolidation was without jurisdiction and was, therefore, liable to be set-aside by the Revisional Court is misconceived. It is evident from a perusal of the records that apart from the petitioner, other tenure holders had also filed appeals before the Settlement Officer of Consolidation against the settlement of chaks as made by the Consolidation Officer and the said appeals were pending while the order dated 2.2.2001 was passed by the Settlement Officer of Consolidation in Appeal No. 3212 filed by the petitioner. In his order dated 8.6.2001, the Assistant Settlement Officer of Consolidation has also recorded a finding that the proceedings in Appeal No. 3212 culminating in the order dated 2.2.2001 were held ex-parte against respondent no. 10. In any case, if appeals filed by other tenure holders were pending before the Assistant Settlement Officer of Consolidation, any arrangement of chaks made by the Assistant Settlement Officer of Consolidation while deciding the aforesaid pending appeals could have disturbed the chaks allotted to the petitioner as well as respondent nos. 7 to 10 and, thus, no illegality was committed by the Assistant Settlement Officer of Consolidation in recalling his previous order dated 2.2.2001 and in connecting Appeal No. 3212 filed by the petitioner with the appeals filed by other tenure holders pending before the Assistant Settlement Officer of Consolidation. 7 to 10 and, thus, no illegality was committed by the Assistant Settlement Officer of Consolidation in recalling his previous order dated 2.2.2001 and in connecting Appeal No. 3212 filed by the petitioner with the appeals filed by other tenure holders pending before the Assistant Settlement Officer of Consolidation. Further, though in his memorandum of revision, the petitioner had stated that the proceedings in Appeal No. 3212 culminating in the order dated 2.2.2001 were not held ex-parte against respondent nos. 7 and 10 and the said respondents were heard by the Assistant Settlement Officer of Consolidation, there is no averment, by the petitioner, in the writ petition that the aforesaid issue was argued by him before the Deputy Director of Consolidation in the revision filed by the petitioner. In the circumstances, no illegality was committed by the Deputy Director of Consolidation in hearing and deciding the revision filed by the petitioner on merits and without considering whether the order dated 8.6.2001 passed in Appeal No. 3212 was a review of order dated 2.2.2001 passed by the Assistant Settlement Officer of Consolidation. 9. After the order dated 10.7.2003 was passed by the Deputy Director of Consolidation, the petitioner filed an application praying for recall of the said order and to pass fresh orders in Revision No. 665 filed by her. A perusal of the order dated 24.6.2004 passed by the Deputy Director of Consolidation would show that no findings have been recorded by the Deputy Director of Consolidation that the previous order dated 10.7.2003 was passed by him without hearing the petitioner or without giving her any opportunity of hearing. In the circumstances, the order dated 24.6.2004 passed by the Deputy Director of Consolidation amounts to a review of his previous order dated 10.7.2003 and, in view of judgment of this Court in Shivraji Vs. Deputy Director of Consolidation Allahabad 1997 (88) RD 562, is without jurisdiction and, thus, liable to be set-aside. 10. So far as the order dated 10.7.2003 is concerned, the same has also been challenged by both the petitioner as well as respondent nos. 7 and 10. Deputy Director of Consolidation Allahabad 1997 (88) RD 562, is without jurisdiction and, thus, liable to be set-aside. 10. So far as the order dated 10.7.2003 is concerned, the same has also been challenged by both the petitioner as well as respondent nos. 7 and 10. A perusal of the records annexed with the writ petitions and the averments made in the writ petitions as well as in different memorandums filed by the parties before the Consolidation authorities shows that the total area of the petitioner in Plot No. 159 was .121 hectares and the share of respondent nos. 7 and 10 in Plot No. 157 was .15 hectares. It has also been admitted that Plot No. 157 is adjacent to road. Through the order dated 10.7.2003, the petitioner has been allotted a chak of area of .069 hectares consisting of Plot Nos. 157 and 159 and respondent nos. 7 and 10 have been allotted a chak of area .013 hectares consisting of Plot Nos. 157 and 159. There is no illegality in the aforesaid arrangement or any violation of any principles enumerated in Section 19 of the Act, 1953. So far as the contention of counsel for the petitioner that the schedule appended to the order dated 10.7.2003 does not confirm to the contents of the aforesaid order is concerned, the petitioner has the right to file an application before the Deputy Director of Consolidation for correcting the schedule appended to the aforesaid order. 11. As stated earlier, there is no illegality or perversity in the order dated 10.7.2003 passed by the Deputy Director of Consolidation. However, the order dated 24.6.2004 passed by the Deputy Director of Consolidation is without jurisdiction. For the reasons given above, the writ petitions lack merit so far as they challenge the orders dated 8.6.2001 and 10.7.2003 passed by the Assistant Settlement Officer of Consolidation and the Deputy Director of Consolidation respectively and are dismissed to the said extent. However, as stated above, the order dated 24.6.2004 passed by the Deputy Director of Consolidation is without jurisdiction and liable to be set-aside and is, hereby set-aside. 12. However, as stated above, the order dated 24.6.2004 passed by the Deputy Director of Consolidation is without jurisdiction and liable to be set-aside and is, hereby set-aside. 12. It would be open to the petitioner in Writ Petition No. 29266 of 2004 to file an appropriate application before the Deputy Director of Consolidation praying for correction of the schedule appended to the order dated 10.7.2003 so as to confirm to the contents of the aforesaid order. If any such application is filed by the petitioner, the same shall be decided by the Deputy Director of Consolidation within three months from the date of filing the same. 13. With the aforesaid observations and directions, the writ petitions are disposed of.