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2018 DIGILAW 403 (ALL)

Baidurrahman @ Obedurrahman v. Deputy Director of Consolidation

2018-02-13

SUNITA AGARWAL

body2018
JUDGMENT : Sunita Agarwal, J. Supplementary affidavit filed today is taken on record. Heard learned counsel for the parties and perused the record. 2. The order impugned in the present writ petition are the orders dated 18.2.2009, 20.8.2009 and 27.11.2017 passed by the Consolidation Officer, the Settlement Officer Consolidation and the Deputy Director of Consolidation, District Siddharth Nagar; respectively. 3. The petitioners are chak holder no. 424. It appears that an objection was raised by the petitioners before the Consolidation Officer that the valuation of ten rupees from their first chak in plot nos. 938 and 941 be expunged and the said valuation be added in another chak comprising of Gata Nos. 705, 706 and 708 and the rest of the valuation be adjusted in a new chak in Gata No. 951. The said request of the petitioners was not acceded to on the ground that other chak holders would be disturbed. It appears that an Appeal No. 314 was filed by the petitioners against the order dated 18.2.2009 passed by the Consolidation Officer finalising the provisional consolidation scheme on the ground that his chak prepared by the Assistant Consolidation Officer was disturbed by the Consolidation Officer though the petitioners did not file any objection. It is contended in the memo of appeal that under the scheme prepared by the Assistant Consolidation Officer, the chaks were provided to him on their original holdings and as such the petitioners did not plead for any change. The respondents, on the other hand, got certain plots of original holdings of the petitioners as 'Udan chak'. On account of alteration made by the Consolidation Officer, the petitioners got a chak at a much distance beyond the sector in which their other chaks are situated. 4. The appeal was rejected vide order dated 20.8.2009 with the categorical finding that the appellant namely petitioners were provided three chaks. First chak in Gata No. 706 etc., second chak in Gata Nos. 926, 934 etc. and third chak in Gata No. 1184 etc. All these plots are of original holdings of the petitioners. Insofar as the claim of the petitioners to provide chak in plot nos. 51 and 53 i.e. at the stage of the Assistant Consolidation Officer, it was recorded by the appellate court that the said chak was provided to other co-tenure holders on the objections raised by them. 5. All these plots are of original holdings of the petitioners. Insofar as the claim of the petitioners to provide chak in plot nos. 51 and 53 i.e. at the stage of the Assistant Consolidation Officer, it was recorded by the appellate court that the said chak was provided to other co-tenure holders on the objections raised by them. 5. Aggrieved, the petitioners went up in revision. In the memo of revision, it was stated that second chak of the petitioners in plot nos. 918, 919 is on 'Taal and 'Khalaar' land and their share in the said land was much less than what has been given to them. They again requested to give a chak in plot no. 53 by taking out the excess portion of plot nos. 918 and 919 (which was much more than their share in the said lands). 6. The revision was rejected with the categorical finding recorded therein that in plot no. 705M. etc., area 0.211 hectares (valuation 14.79 paise), second chak in plot nos. 926, 934 etc. area 0.835 hectares (valuation 33.40 paise) and third chak in Gata No. 1184 etc. area 0.122 hectares (valuation 8.02 paise), fourth chak in Gata No. 1184M. area 0.439 hectares (valuation 26.66 paise) i.e. total area of 1.607 hectares having valuation of 82.87 paise was given to the petitioners in four chaks whereas the total valuation of their original holdings was 1.566 hectares. It was further recorded that other chak holders who are the co-tenure holders of the petitioners were also provided chaks comprising of their original holdings. In case, plot no. 53 is given to them by reducing area of plot nos. 918, 919, the petitioners would be having a fifth chak. 7. The orders impugned are under challenge in the present writ petition with the specific assertion by the learned counsel for the petitioners that the consolidation authorities had committed grave error of law in rejecting the appeal and revision filed by him on the grounds which were alien to the objections raised by him. Plot no. 53 was the only cultivable land amongst all plots of the original holdings of the petitioners. The petitioners were provided one chak in plot no. 53 and he was fully satisfied with the arrangement made by the Assistant Consolidation Officer. Plot no. 53 was the only cultivable land amongst all plots of the original holdings of the petitioners. The petitioners were provided one chak in plot no. 53 and he was fully satisfied with the arrangement made by the Assistant Consolidation Officer. No objection was filed by the petitioners, however, for the reasons best known to the Consolidation Officer, by the order dated 18.2.2009, the objections allegedly filed by the petitioners, chak holder no. 424 was rejected. In the crux, it is sought to be submitted that the said part of the observation made in the order of the Consolidation Officer is wholly against the record. It was not permitted for the Consolidation Officer to make any changes in the Consolidation scheme on the plea of other co-tenure holders. It is further contended that four chaks have now been allotted to the petitioners on account of the adjustment made by the Consolidation Officer which is in contravention of first proviso to clause (e) of sub-section (1) of Section 19 of the Consolidation of Holdings Act. 8. The attention of the Court is invited to the CH-Form 23 of the paper book to impress upon the Court that plot no. 53 was the largest plot of holding of the petitioners and was the only cultivable land which ought to have been allotted to the petitioner as it was given at the stage of Assistant Consolidation Officer. It is demonstrated from CH Form-23 that three chaks were proposed by the Assistant Consolidation Officer. First in plot nos. 913, 918, 919 etc., second in plot nos. 705, 708, 706 etc. and third in plot nos. 51, 52, 53 etc. 9. Sri Tripathi B.G. Bhai, learned counsel for the respondent no. 7, on the other hand submits that assertion of the petitioners with regard to the plot no. 53 being largest original holding is incorrect. The attention of the Court invited to CH Form-23 filed as Annexure S.A.-1 to the supplementary affidavit today to substantiate this submission. 10. Dealing with the submissions of learned counsel for the petitioners, insofar as the first objection of the petitioner with regard to the findings recorded by the Consolidation Officer regarding rejection of demand of the petitioners chak holder no. 424, this Court cannot take any exception inasmuch as the said fact is categorically recorded in the order impugned. 10. Dealing with the submissions of learned counsel for the petitioners, insofar as the first objection of the petitioner with regard to the findings recorded by the Consolidation Officer regarding rejection of demand of the petitioners chak holder no. 424, this Court cannot take any exception inasmuch as the said fact is categorically recorded in the order impugned. In the memo of appeal, though it is submitted by the petitioners that they did not make any request for changes before the Assistant Consolidation Officer as their all chaks were adjusted in their original holdings But it is not stated therein that the fact um of rejection of request of the petitioners recorded in the order was incorrect fact. 11. Now coming to the second submission of learned counsel for the petitioners with regard to the demand raised by the petitioner regarding plot no. 53 is concerned, a perusal of CH Form-23 of the petitioners shows that plot nos. 705, 706, 926, 1184, 1187 and 1188 are plots of their original holding. Plot no. 53 which is also part of their original holdings comprised of an area of 0.231 air whereas the largest area of their original holding comprised in plot nos. 1184 (0.619 air), 1187 (0.139 air) and 1188 (0.478 air). A further perusal of the Consolidation scheme finalised by the Consolidation Officer affirmed by the Deputy Director of Consolidation shows that plot nos. 1184 and other adjoining plots such as plot nos. 1182, 1183, 1185/1, 1185/2 and 1186 were given to the petitioners in two chaks. These plots are adjacent to each other and the remaining two chaks comprised of plot nos. 705, 706, 918 and 919 etc. Plot no. 926 is the original holding of the petitioners and other plots given in second chak are adjacent so as to make it a compact holding. The said consolidation scheme was finalised by the Consolidation Officer after considering the objections of other co-tenure holders also who are co-sharers of the petitioners. 12. The arrangement of chaks was such as earlier three chaks were allotted to the petitioners and now four chaks have been carved out on the original holdings of the petitioners. It is contended by the learned counsel for the petitioners that the scheme finalised by the Consolidation Officer was contrary to the first proviso to Section 19(1)(e) of the Act. The arrangement of chaks was such as earlier three chaks were allotted to the petitioners and now four chaks have been carved out on the original holdings of the petitioners. It is contended by the learned counsel for the petitioners that the scheme finalised by the Consolidation Officer was contrary to the first proviso to Section 19(1)(e) of the Act. The contention is that four chaks could not have been carved out by the Consolidation Officer as against the mandate of the said provision. Reliance is placed upon the Judgment of this Court in Nathunee and others v. Deputy Director of Consolidation and another reported in 2005 (98) RD 92 and Shri Niwas v. Deputy Director of Consolidation and others reported in 2004 (96) RD 153 to submit that the Consolidation Authorities are under obligation to allot a compact area of the plot to a tenure holder where he holds the largest part of his original holding. 13. As far as the submission with regard to the Consolidation scheme being contrary to the provision of Section 19 is concerned, it would be relevant to note that a learned Single Judge of this Court in Man Mohan v. D.D.C. and others in Writ-B No. 33099 of 2012 while interpreting the words "as far as possible" used in sub-section (e) of Section 19 of the Act has held that the said words dilutes the rigor of the section, which requires the allotment of chak at the largest part of original holding. It is held that the very purpose of the Act is to give compact holding looking to the convenience of the tenure holder. The provisions contained in sub-section (e) of Section 19 of the Act are directory in nature and not mandatory. In so far as the proviso to sub-section (e) is concerned, it provides that the tenure holder be not allotted more than three chaks except with the approval in writing of the Deputy Director of Consolidation. 14. During the course of argument, learned counsel for the petitioners submits that there was no such approval in writing, however, no such submission was made by the petitioner in the memo of appeal or in the revision. New grounds taken in the writ petition for the first time during the course of argument cannot be permitted to be raised to assail the findings of the two Courts below. 15. New grounds taken in the writ petition for the first time during the course of argument cannot be permitted to be raised to assail the findings of the two Courts below. 15. As far as the judgment in Shri Niwas (supra) is concerned, there cannot be a dispute about the proposition that the Consolidation Authorities are under obligation to look to the grievances of the tenure holders and to pass reasoned orders noticing the objections taken by them. The expression "as far as possible" does not confer any unbridled power and the requirements embodied therein are necessarily to be followed and in case of any non-compliance thereof, specific reasons have to be assigned therefor. Any order devoid of reasons would be amenable to judicial review in writ jurisdiction under Article 226 of the Constitution of India. There is also no dispute about the proposition laid down in Nathunee (supra) wherein it was observed that in the matter of allotment of chak, no party should suffer either in terms of the area or valuation of the original holding. The Consolidation Authorities are required to allot chaks considering the convenience of the tenure holder and to ensure that they will not put to great hardship as after closure of the consolidation process they would not have any remedy. The Consolidation Authority besides keeping in mind the norms as provided under Section 19 of the U.P. Consolidation of Holdings Act has to balance equity considering the hardship of the parties. 16. In so far as the case in hand, as already noted above, the petitioner and his other co-tenure holders were given chaks comprising of the plots of their original holdings. Initially three chaks were allotted to the petitioner comprising of the plots of his original holding. However, as a result of the alteration made by the Consolidation Officer, four chaks are now given to the petitioner. However, it can be seen that third and fourth chaks in plot nos. 1182, 1183, 1184, 1185 and 1186 are comprised of adjacent plots. On a query made by the Court, learned counsel for the petitioners was not in a position to say as to why these adjacent plots were divided in two chaks. The remaining two chaks are as per the adjustment made by the Assistant Consolidation Officer. 17. Having noted the fact that the petitioners were having their major shares in plot nos. The remaining two chaks are as per the adjustment made by the Assistant Consolidation Officer. 17. Having noted the fact that the petitioners were having their major shares in plot nos. 1184, 1187 and 1188, this Court does finds that no prejudice has been caused to the petitioners by adjustment of their chak comprising of plot no. 1184 of their largest original holding. 18. In so far as the grievances raised by the petitioners in appeal and revision is concerned, it is more than apparent that the specific grievance of the petitioners was with regard to plot nos. 918 and 919 and the demand was raised for allotment of plot no. 53 in place thereof. No objection was taken by the petitioners regarding allotment of four chaks by the Consolidation Officer. Thus they were satisfied with the allotment of two chaks comprising of plot no. 1184 etc. at the stage of the Consolidation Officer. 19. In so far as the demand of plot no. 53 is concerned, there are other co-tenure holders and for the reasons recorded in the order of the Consolidation Officer, it was found that the demand of the petitioners to expunge valuation of plot nos. 918, 919 from their chaks was not accepted as it would have disturbed other co-tenure holders. In the crux, it is found that the petitioners have been provided chaks comprising of their original holdings and as such the requirement of sub-section (1)(e) of Section 19 are fulfilled. The order passed by the appellate and revisional court cannot be said to suffer from any error of law or devoid of reasons. 20. Cogent reasons have been given by the Consolidation Authorities in not accepting the demand of the petitioners for adjustment of their chak in plot nos. 704 and 706 etc. The plot no. 53, as asserted, cannot be said to be the largest plot of their original holding. 21. Even otherwise, this Court in exercise of powers under Article 226 of the Constitution of India is not supposed to interfere ordinarily in the arrangements made by the Consolidation Authority which has been finalised in the year 2009. 22. The writ petition is found devoid of merits and hence dismissed.