Yogendra Mishra v. Deputy Director of Consolidation
2019-04-25
SALIL KUMAR RAI
body2019
DigiLaw.ai
ORDER : Salil Kumar Rai, J. 1. Heard the counsel for the petitioners, the counsel for respondent no. 3 and the Standing Counsel representing respondent nos. 1 and 2. 2. The facts of the case as evident from the records annexed with the writ petition are that one Heeralal was the recorded tenure holder of Plot No. 243. During the consolidation operations in the village, it was directed that 0.07 acres in Plot No. 243 be withdrawn from Heeralal and be recorded as Canal while 0.03 acres be recorded as abadi and therefore vest in the Gaon Sabha. However, it appears that subsequently 0.01 acres of Plot No. 243 was included in chak No. 68, i.e., the chak of the petitioners. It also appears that because of the inclusion of Plot No. 243 in chak No. 68, the road used by the villagers was obstructed causing inconvenience to the villagers. Consequently, on an application of respondent no. 3, reference proceedings under Section 48(3) of the Uttar Pradesh Consolidation of Holdings Act, 1953 were instituted on which after giving the concerned parties an opportunity of hearing, a reference was submitted before the Deputy Director of Consolidation, Padrauna, i.e., respondent no. 1 and Reference No. 14/479 was registered before respondent no. 1. The respondent no. 1 after considering the records passed order dated 24.1.1996 holding that Plot No. 243 was wrongly included in chak No. 68, i.e., the chak of the petitioners and because of the said fact, the road used by the villagers was closed causing inconvenience to the villagers. The Deputy Director of Consolidation vide his order dated 24.1.1996 directed that Plot Nos. 242 and 243 included in chak No. 68 be withdrawn from the same and in lieu thereof Plot No. 171 be included in chak No. 68. The petitioners filed a recall application before respondent no. 1 registering Recall Case No. 388 before respondent no. 1. The recall application was filed on the ground that after Plot Nos. 242 and 243 were included in chak No. 68, the petitioners had constructed their house over the same after obtaining permission from the Settlement Officer of Consolidation and therefore the order dated 24.1.1996 be recalled.
1 registering Recall Case No. 388 before respondent no. 1. The recall application was filed on the ground that after Plot Nos. 242 and 243 were included in chak No. 68, the petitioners had constructed their house over the same after obtaining permission from the Settlement Officer of Consolidation and therefore the order dated 24.1.1996 be recalled. The Deputy Director of Consolidation vide his order dated 13.5.1997 dismissed Recall Case No. 388 on the ground that the petitioners did not produce any order passed by the Settlement Officer of Consolidation permitting the petitioners to make constructions over chak No. 68 which at that time included Plot Nos. 242 and 243 and, therefore, the plea of the petitioners cannot be accepted. The orders dated 24.1.1996 and 13.5.1997 passed by respondent no. 1 have been challenged in the present writ petition. 3. It was argued by the counsel for the petitioners that Reference No. 14/479 was registered on an application filed by respondent no. 3 twelve years after Plot No. 243 was included in chak No. 68 and only with a view to harass the petitioners who had made constructions on chak No. 68 which included Plot No. 243 after obtaining permission from the Settlement Officer of Consolidation. It was argued by the counsel for the petitioners that the findings recorded by the Deputy Director of Consolidation in his order dated 24.1.1996 that Plot No. 243 was wrongly included in chak No. 68 and that Plot No. 243 was used as a passage by the villagers which was obstructed by including the same in chak No. 68 are contrary to the records and without any evidence. It was argued that the father of the petitioners had been granted permission by the Settlement Officer of Consolidation to make constructions over chak No. 68 and therefore the Deputy Director of Consolidation had acted mechanically in withdrawing Plot No. 243 from chak No. 68 causing undue hardship to the petitioners. The petitioners have annexed as Annexure No. 10 to the writ petition, the alleged copy of the order dated 26.7.1986 passed by the Settlement Officer of Consolidation granting permission to the father of the petitioners to make constructions over chak No. 68 which included Plot No. 243. 4. I have considered the submission of the counsel for the petitioners. 5.
The petitioners have annexed as Annexure No. 10 to the writ petition, the alleged copy of the order dated 26.7.1986 passed by the Settlement Officer of Consolidation granting permission to the father of the petitioners to make constructions over chak No. 68 which included Plot No. 243. 4. I have considered the submission of the counsel for the petitioners. 5. The findings recorded by the Deputy Director of Consolidation in his order dated 24.1.1996 that Plot No. 243 was directed to be recorded as Canal and abadi after withdrawing 0.10 acres of the same from Heeralal are based on the reports submitted by the Assistant Consolidation Officer as well as the Consolidation Officer and after considering the different evidence on record, specially the documents prepared during the consolidation operations especially C.H. Form 23 Part-I. Similarly, the findings recorded by the Deputy Director of Consolidation in his order dated 24.1.1996 that the passage of the villagers was obstructed by including Plot Nos. 242 and 243 in chak No. 68 is also based on spot inspection reports submitted by the Consolidation Officer and the Assistant Consolidation Officer. The findings recorded by the Deputy Director of Consolidation are findings of fact based on evidence on record. The counsel for the petitioners has not been able to show any perversity in the aforesaid findings. For the aforesaid reasons, the findings recorded by the Deputy Director of Consolidation in his order dated 24.1.1996 are not amenable to interference by this Court under Article 226 of the Constitution of India. So far as the contention of the petitioners that he had made constructions over chak No. 68 after getting permission from the Settlement Officer of Consolidation is concerned, a reading of the order dated 13.5.1997 passed by the Deputy Director of Consolidation shows that before the Deputy Director of Consolidation, the petitioners did not produce the alleged order passed by the Settlement Officer of Consolidation. There is no averment in the writ petition that the petitioners had produced the alleged order passed by the Settlement Officer of Consolidation before the Deputy Director of Consolidation and the recitals in the order dated 13.5.1997 passed by the Deputy Director of Consolidation that the petitioners had not produced the copy of the order passed by the Settlement Officer of Consolidation is wrong.
In that view of the matter, there is no illegality in the order dated 13.5.1997 passed by the Deputy Director of Consolidation which has been passed due to the failure of the petitioners to produce before the Deputy Director of Consolidation the copy of the alleged order dated 26.7.1986 allegedly granting permission to the father of the petitioners to make constructions over chak No. 68 which included Plot Nos. 242 and 243 even though the Recall Case No. 388 was instituted by the petitioners only on the ground that the petitioners had made constructions over chak No. 68 including Plot Nos. 242/243 after obtaining permission from the Settlement Officer. The petitioners have annexed a copy of the order dated 26.7.1986 allegedly passed by the Settlement Officer of Consolidation allegedly granting permission to the father of the petitioners to make constructions over chak No. 68. This Court in its writ jurisdiction cannot consider the said document to test the legality of the order dated 13.5.1997 passed by the Deputy Director of Consolidation. The authenticity and the genuineness of the said document cannot be assessed on the basis of affidavit evidence. The authenticity of the said document could have been examined only by the Deputy Director of Consolidation before whom the petitioners did not produce the said order. In that view of the matter, the order dated 13.5.1997 passed by the Deputy Director of Consolidation cannot be set-aside on the basis of the document annexed as Annexure no. 10 to the writ petition. 6. While perusing the records of the case, the Court has also taken notice of the fact that the father of the petitioners was the Gram Pradhan of the village when Plot Nos. 242 and 243 were wrongly included in chak No. 68 and subsequently an order was passed by the competent authority ceasing the financial and administrative powers of the father of the petitioners as Gram Pradhan on the ground that he had misused his position as Gram Pradhan of the village in manipulating the consolidation proceedings for his own personal benefits. The said order has been annexed as Annexure No. CA-2 to the counter affidavit filed by respondent no. 3. 7. For all the aforesaid reasons, there is no illegality in the orders dated 24.1.1996 and 13.5.1997 passed by respondent no.
The said order has been annexed as Annexure No. CA-2 to the counter affidavit filed by respondent no. 3. 7. For all the aforesaid reasons, there is no illegality in the orders dated 24.1.1996 and 13.5.1997 passed by respondent no. 1 and it is not a fit case for interference by this Court in its equitable jurisdiction under Article 226 of the Constitution of India. The writ petition is dismissed. 8. Interim order, if any, stands vacated.