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2019 DIGILAW 2200 (ALL)

Raghuraj v. State of U. P.

2019-09-19

SIDDHARTHA VARMA

body2019
JUDGMENT : Siddhartha Varma, J. 1. This writ petition has been filed against the order dated 19.7.2018 passed by the Additional District Magistrate (Administration), Meerut in proceeding under Section 28 of the U.P. Land Revenue Act, 1901 and against the order dated 4.10.2018 passed by the Additional Commissioner (Judicial) 4th, Meerut Region, Meerut. 2. The respondent No. 5 filed an application under Section 28 of the U.P. Land Revenue Act before the District Magistrate, Meerut and prayed that in the map, the land which had been shown as a chak marg in between his plot nos. 502 and 564 and which was running from North to South be removed from the final maps. The petitioners were arrayed as respondents in the case. They filed their objection to the application filed by the respondent No. 5 on 26.3.2015 and a report was called for by the Additional District Magistrate from the Consolidator who submitted his report on 13.3.2015. This report was also objected to by the petitioners. However, when the respondent No. 3 on 27.3.2015 accepted the report dated 13.3.2015, the petitioners preferred a Revision which was allowed on 8.7.2015 and the matter was remanded back to the Additional District Magistrate. Thereafter, the respondent No. 3-the Additional District Magistrate once again passed the impugned order dated 19.7.2018 which was affirmed by the Revisional Court on 20.7.2018. Hence, the instant writ petition. 3. Learned counsel for the petitioners has contended that when the respondent No. 5 had prayed for the removal of the chak marg which had been shown in the map then he had infact tried to get the chak marg running over plot No. 501 removed. He has stated that the road which ran over plot No. 576 was connected by the petitioners' plot on plot No. 523 by the chak marg which ran over plot No. 501. Learned counsel has submitted that the consolidation proceedings were completed in the year 1961 and since then the petitioners had been using the chak road over plot No. 501 to reach their plot No. 523. Learned counsel has submitted that the consolidation proceedings were completed in the year 1961 and since then the petitioners had been using the chak road over plot No. 501 to reach their plot No. 523. Learned counsel for the petitioners has submitted that when the application of the respondent No. 5 was taken up and the Consolidator had given his report on 13.3.2015, in his report, the Consolidator had categorically stated that there was one plot No. 501 which though had an area of 0.708 hectares was on the spot showing to be having an area of 0.1056 hectares and, therefore, the Consolidator had by his report suggested that the excess land from the plot No. 501 be removed and the plot Nos. 502 and 564 be given the excess land. Here, learned counsel for the petitioners, therefore, submitted that the plot No. 501 and the road over it even as per the report of the Consolidator definitely were in existence. Learned counsel further submitted that the Consolidator in his cross-examination had stated that he had not made any spot inspection and that the Consolidator, even though had found that the plot No. 501 had some additional land, he definitely did not say that the plot No. 501 had to be totally removed. In paragraphs Nos. 14, 25, 32 and 33 of the writ petition, which will be reproduced in this judgment, it has also been stated by the petitioners that they had no other chak marg other than the one which was being sought to be removed from plot No. 501, to approach their plot No. 523. Paragraphs 14, 25, 32 and 33 of the writ petition are being reproduced here as under: "14. That the Consolidator in its cross-examination in chief has categorically stated that there is no way to reach the petitioners' plot No. 523 except to the Chak-Road No. 501 which is situated in the eastern side of Plot No. 502 and western side of plot No. 564 of respondent No. 5. He further stated that during the consolidation proceedings it is necessary to provide a Chak-Road for all chak-holders to reach their plots in Khasra No. 523 except to the disputed Chak-Road there is no other Chak-Road. ........................ 25. He further stated that during the consolidation proceedings it is necessary to provide a Chak-Road for all chak-holders to reach their plots in Khasra No. 523 except to the disputed Chak-Road there is no other Chak-Road. ........................ 25. That the petitioners are owner of Plot No. 523 and except the Chak-Road No. 501 there is no other way or Chak-Road to reach them to their plot. ........................ 32. That the respondent Nos. 2 and 3 while passing the impugned orders did not consider the fact that the petitioners are using Chak-Road No. 501 since the last consolidation proceedings to reach their Plot No. 523 and the respondent No. 5 never objected them. 33. That it is further important to state here that a bricks-made road is also constructed over the Chak-Road No. 501 which is situated in between the Plot No. 502 and 564 which ends to the Plot No. 523 of the petitioners and a Pakki Nali is also constructed on both sides of the said Chak Road. Not only this, a Puliya is also constructed on the said Chak-Road by the Gram Sabha fund." 4. Learned counsel for the petitioners has stated that the respondents in paragraphs 16, 23, 27 and 28 have replied to the contents of paragraphs 14, 25, 32 and 33 of the writ petition but have not denied the fact that the chak marg which existed on plot No. 501 alone was the road which connected the petitioners' plot No. 523 with the rasta on plot No. 576. Paragraphs 16, 23, 27 and 28 of the counter-affidavit are being reproduced here as under: "16. That the contents of paragraph No. 14 and 15 of the writ petition are not admitted and denied. The petitioner is trying to carve out a Chak Road in the absence of there is any Chak Road mentioned in revenue record. There is no any Chak Road in the revenue record and true copy of the revenue record is being filed herewith and marked as Annexure CA-1 to this counter-affidavit. ........................ 23. That the contents of paragraph No. 25 of the writ petition are not admitted and denied and the petitioners are easily going to their field. ........................ 27. There is no any Chak Road in the revenue record and true copy of the revenue record is being filed herewith and marked as Annexure CA-1 to this counter-affidavit. ........................ 23. That the contents of paragraph No. 25 of the writ petition are not admitted and denied and the petitioners are easily going to their field. ........................ 27. That in reply to the contents of paragraph No. 32 of the writ petition it is submitted that anyhow or the other petitioners are trying to grab the land of the petitioners. 28. That the contents of paragraph No. 33 of the writ petition are not admitted and denied. The petitioners are trying to create a Road unnecessary which does not find the place in the revenue record." 5. Learned counsel for the petitioners submitted that even though in the objection they had not taken the plea that the rasta on plot No. 501 was the plot over which the chak marg was running and which connected the rasta in plot No. 576 and the plot No. 523 but in fact they had always meant that there was a chak marg connecting the rasta and plot No. 576 and their own plot at plot No. 523. 6. Learned counsel for the petitioners has, in the Supplementary Rejoinder-affidavit filed on 5.4.2019, brought on record a Supplementary-affidavit which they had filed before the Revisional Court on 20.8.2018 that in fact the chak marg was running over as plot No. 501 and, therefore, learned counsel for the petitioners submitted that the petitioners always meant that the chak marg on plot No. 501 be not removed. Learned counsel also relied upon Ram Kumar vs. Additional Commissioner, Meerut and Others, 2017 (134) RD 758 and Ashfaq Ahmad vs. Additional Commissioner (Administration), 2017 (137) RD 163 and has stated that not only had the Consolidator's report to be read in its right perspective while deciding the application under Section 28 but his report had also to be matched with the UP CH Forms 41 and 45. Learned counsel further states that in case this Court finds that no rasta was there which would provide for the ingress and egress from plot No. 523, then this Court may direct the Collector to apply the provisions of Section 52-A of the U.P. Consolidation of Holdings Act, 1953 to provide for a chak road. Learned counsel further states that in case this Court finds that no rasta was there which would provide for the ingress and egress from plot No. 523, then this Court may direct the Collector to apply the provisions of Section 52-A of the U.P. Consolidation of Holdings Act, 1953 to provide for a chak road. Since learned counsel referred to Section 52-A of the U.P. Consolidation of Holdings Act, the same is being reproduced here as under: "52-A. Special provisions for Chak Roads or Chak Guls - (1) In the case of a unit in relation to which a notification under sub-section (1) of Section 52 has been issued before the commencement of the Uttar Pradesh Consolidation of Holdings (Amendment) Act, 1970, the Collector may, if he is of opinion that there exists no provisions or inadequate provisions of Chak Roads or Chak Guls in the unit and shall, if a representation in that behalf be not less than ten per cent of the total number of tenure-holders is made to him within six months of the said commencement, proceed to take action under sub-section (2), anything to the contrary contained in Section 52 notwithstanding. (2) The Collector shall cause a notice of the proposal to take action under this section and also of the representation, if any, received under sub-section (1) to be given in the unit by beat of drum and in such other manner, if any, as he thinks fit, and direct any Consolidation Officer to inspect the locality and take reasonable steps to ascertain the wishes of the tenure-holders, or, as the case may be, of such of them as have not joined in the representation and to make such other inquiry into the matter as he thinks fit. (3) Such Consolidation Officer shall make a report to the Collector on the advisability or otherwise of drawing up a plan making provision or, as the case may be, more adequate provision for Chak Roads or Chak Guls in the unit and the Collector on being satisfied after considering such report that it is necessary or expedient so to do, shall cause a draft plan to be prepared. (4) The Assistant Consolidation Officer shall thereupon, after ascertaining informally the wishes of as many tenure-holders of the unit as he considers practicable, prepare a draft plan in the prescribed form proposing such provision or additional provision of Chak Roads or Chak Guls as may be necessary. In preparing the draft plan the Assistant Consolidation Officer shall have regard to the following principles, namely:- (a) That as far as practicable, provision of Chak Roads and Chak Guls should be made primarily by utilising land vested in the Gaon Sabha and secondarily out of land held by those tenure-holders whose Chaks are connected with the proposed Chak Roads or Chak Guls and in the last resort, out of any other land. (b) The re-arrangement of Chaks should be made only to the extent it is really necessary for making provision of Chak Roads and Chak Guls with the minimum possible dislocation in the Consolidation Scheme already confirmed." 7. Learned counsel for the respondents, however, submitted that the map had been corrected on the basis of the report of the Consolidator and also on the various revenue records which included Form-41 and Form-45. 8. Learned counsel appearing for the respondent No. 5, however, in reply stated that the petitioners, only to grab some land on the spot, had dishonestly got carved out a chak road which ran between plot Nos. 502 and 564. Learned counsel further submitted that the petitioners had for the first time here in the writ petition stated that plot No. 501 was the plot on which the chak marg ran. Learned counsel, therefore, submitted that there was nothing wrong in the removal of the chak marg which had wrongly and illegally been carved out from plot Nos. 502 and 564. Learned counsel vehemently relied upon the report of the Consolidator and submitted that the impugned orders were not to be interfered with. 9. Having heard learned counsel for the petitioners, learned Standing Counsel, learned counsel for the respondent No. 5 and the learned counsel for the Gaon Sabha, the Court is of the view that when the Consolidator had found that there was a plot being plot No. 501 and only some area of it had been increased then the plot No. 501 had to be placed somewhere in the map. The Court also finds that averment of the petitioners that there was a road which connected the road situate on plot No. 576 with their plot No. 523 has not been categorically denied by the respondent No. 5 in his counter-affidavit. 10. The scheme of consolidation definitely lays down that the land which was for the public purposes had to be vested in the Gaon Sabha. If plot No. 501 was connecting the road running on plot No. 576 and the petitioners' plot No. 523, then that road had also to exist on the spot. The Consolidator had found that there was a rasta over plot No. 501. However, it has also been found that somehow that area of that rasta had increased and, therefore, it had suggested for a proper reduction of the area. Basing on this report, two orders have been passed. A perusal of the two orders shows that there was no definite finding as to whether plot No. 501 connected the rasta on plot No. 576 with plot No. 523 or not. While passing the two orders, the Additional District Magistrate and the Commissioner have not looked into the final consolidation map and have relied, for their findings, only on the report of the Consolidator alone. The authority which passes the order can always depend upon certain reports but it cannot pass orders solely on the reports. The Additional District Magistrate when was confronted with the objection of the petitioners that there was only one rasta which connected plot No. 523 with the rasta running on plot No. 576, then even a local inspection was advisable. A definite finding ought to have been arrived at by the Additional District Magistrate and also by the Revisional Court, independent of the report of the Consolidator as to whether the map required a correction or not. This Court also finds from the perusal of paragraph Nos. 14, 25, 32 and 33 of the writ petitioner which have not been categorically denied in the counter-affidavit that the petitioners were having a rasta which connected their plot No. 523 with the rasta in plot No. 576. An impression is also created that there was no other rasta which would have given an outlet for a person cultivating plot No. 523. 11. An impression is also created that there was no other rasta which would have given an outlet for a person cultivating plot No. 523. 11. Under such circumstances, the order dated 19.7.2018 passed by the Additional District Magistrate (Administration), Meerut and the order dated 4.10.2018 passed by the Additional Commissioner (Judicial), 4th, Meerut Region, Meerut are quashed. The Collector, Meerut shall once again decide the application filed by respondent No. 5 afresh within a period of one month from the date of presentation of a certified copy of this order and after looking into the report of the Consolidator and after matching the report with Form-41 and Form-45 give a definite conclusion as to whether a road existed in between the petitioners' plot No. 523 and the rasta in plot No. 576. 12. In the event the Collector finds that there is no rasta on the map and if he finds that that there is no ingress and egress for the petitioners from plot No. 523 then he shall apply the provisions of Section 52-A of the U.P. Consolidation of Holdings Act, 1953 and carve out a chak road. 13. With these observations, the writ petition is finally allowed.