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Allahabad High Court · body

2019 DIGILAW 2298 (ALL)

Thakur Prasad v. D. D. C.

2019-09-30

J.J.MUNIR

body2019
ORDER : Jahangir Jamshed Munir, J. 1. This Writ Petition is directed against an order of the Deputy Director of Consolidation, Azamgarh, dated 14.01.1976 passed in Revision No. 428, Guru Granth vs. Naumi and others, and Revision No. 583, Sant Kumar vs. Guru Granth and others. Also, under challenge, is a subsequent order dated 21.02.1976 passed by the Deputy Director of Consolidation, Azamgarh in Restoration Application No. 111, Sant Kumar vs. Guru Granth and others, seeking to set aside the order dated 14.01.1976, in so far it relates to the two Revisions aforesaid, seeking to restore those Revisions to their original number, and determine them afresh. 2. At the outset, it must be remarked that the prayer clause in the Writ petition is rather vaguely worded, and reads thus: "It is, therefore, prayed that Writ in the nature of Certiorari be issued to send for the records of the case and to quash the orders of the Deputy Director, and that any other suitable Writ, Order or direction be issued in the interest of Justice." 3. From the substance of the allegations in the Writ Petition, it is, however, clear that the petitioner has assailed the order of the Deputy Director of Consolidation, Azamgarh, dated 14.01.1976, in so far as it pertains to Revision Nos. 428 and 583, last mentioned. It is also clearly discernible that the further order dated 21.02.1976 passed on the restoration application made to set aside the judgment and order dated 14.01.1976, is one that is made on the application referable to the two Revisions last mentioned, and not others. It further requires to be said in order to set the record straight that pointed reference to the two Revisions, where the impugned order dated 14.01.1976 has been passed, is made on account of the fact that by the said order the Deputy Director has disposed of some thirty-two Revisions, about the rest of which except the two above mentioned, there is no issue in this Writ Petition. 4. This Writ Petition was admitted to the hearing as long back as on 3rd August, 1976. Notice was sent out on 18.09.1976 returnable on 01.12.1976. 4. This Writ Petition was admitted to the hearing as long back as on 3rd August, 1976. Notice was sent out on 18.09.1976 returnable on 01.12.1976. A perusal of the order sheet shows the fact that between 18.09.76 and 02.02.1993, that is, a period of about little more than 16 years, the Writ Petition never came up before the Court; at least, there is no order scribed on the order sheet between these two dates. On 22.02.1993, a substitution application, seeking to bring on record the heirs of the sole petitioner, who has died in the meanwhile, was filed. This Writ Petition, which arises from a chak allotment matter, had a host of substitution applications, an abatement application, and, in between, a restoration application. All these were disposed of on 08.02.2019, whereafter decks were cleared for hearing. Vide office report dated 21.02.2019, and reiterated on 07.03.2019, the matter was posted for final hearing. The said report was reiterated again on 08.05.2019 and 02.07.2019. On 03.07.2019, the Writ Petition was heard in a single hearing and judgment was reserved. 5. Heard Sri Rahul Sripat, learned Senior Advocate assisted by Sri Ishir Sripat, learned counsel appearing on behalf of the petitioner and Sri J.N. Sharma, learned counsel appearing on behalf of respondent Nos. 2 & 3. 6. The proceedings giving rise to this petition relate to consolidation operation, and were current in the district of Azamgarh in the year 1976. The dispute relates to land situate in Village Azmatgarh of district Azamgarh. The petitioner was proposed a single chak by the Assistant Consolidation Officer, that included, inter alia, khasra Nos. 1226(M), 1434(M), 1435(M), 2329(M) and 1330(M). The petitioner was satisfied with the said allotment, and did not file any objection from the proposal. A number of other tenure holders filed objections, but none of them related to the ACO's proposal, vis-a-vis, the petitioner's chak, 'directly' or 'indirectly', as the petitioner seeks to plead. The petitioner's chak is claimed to have become final, and also confirmed under Section 23 of the U.P. Consolidation of Holdings Act, 1953 (for short, 'the Act'). No appeal was carried from the order or the determination made in favour of the petitioner, as the petitioner would submit. 7. Guru Granth, respondent No. 3 is said to have filed a revision to the Deputy Director of Consolidation, bearing Revision No. 428, impleading the petitioner as a party. No appeal was carried from the order or the determination made in favour of the petitioner, as the petitioner would submit. 7. Guru Granth, respondent No. 3 is said to have filed a revision to the Deputy Director of Consolidation, bearing Revision No. 428, impleading the petitioner as a party. It is asserted by the petitioner that notice of this Revision was not served upon the petitioner, in consequence of which at the hearing, neither the petitioner had knowledge or did he appear or sign the order sheet. It is further pleaded that Revision No. 583 of was filed by another co-tenure holder, Sant Kumar. No notice of this Revision was issued or given to the petitioner, or did he otherwise acquire knowledge of these proceedings. In consequence, neither the petitioner or the learned counsel could appear at the hearing before the Deputy Director of Consolidation. It is also asserted in paragraph 3 of the Writ Petition that at the time of local inspection made by the Deputy Director of Consolidation, the petitioner's son was not present at the place of inspection. It is also claimed by the petitioner that the impugned order passed by the Deputy Director of Consolidation, disposing of the two Revisions, above mentioned, along with a host of others, has been passed behind the petitioner's back, without any opportunity of hearing to him, and further that by an ex parte determination done behind the petitioner's back, he has been given two chaks in the same sector and a third in another sector. The total holding of the petitioner is claimed to be about six bighas. It is asserted in paragraph 2 of the Writ Petition by the petitioner that Revision No. 428, filed by Guru Granth, where he was impleaded as a party, no notice was issued to him. He did not appear at the hearing of the Revision, or sign the order-sheet of proceedings, or otherwise had knowledge. Likewise, it is asserted, that Revision No. 583 filed by Sant Kumar, no notice was issued to the petitioner, and he had no knowledge of the proceedings. In consequence, he or his counsel did not appear at the hearing of Revision No. 583 also. 8. Likewise, it is asserted, that Revision No. 583 filed by Sant Kumar, no notice was issued to the petitioner, and he had no knowledge of the proceedings. In consequence, he or his counsel did not appear at the hearing of Revision No. 583 also. 8. There is an assertion in paragraph 3 of the Writ Petition by the petitioner, that at the time of inspection done by the Deputy Director of Consolidation, the petitioner's son was not present. It is then asserted that both these Revisions under reference, one filed by Sant Kumar, and the other filed by Guru Granth, came to be heard and allowed behind the petitioner's back. It is said that these Revisions have been decided without affording the petitioner any opportunity of hearing. These assertions regarding denial of opportunity have been boldly made in paragraphs 2, 3 and 4 of the Writ Petition. It is also asserted that both the Revisions were allowed, in consequence of which, the petitioner's chak, as proposed by the ACO, has been completely altered by the Deputy Director of Consolidation. The petitioner has been given bad quality land. It is also asserted, as already said by the petitioner, that he has been given two chaks in one sector, and a third in another sector. The total land in his hand, after determination of the Deputy Director of Consolidation, is six bighas. 9. It appears that the petitioner filed an application for restoration seeking to set aside the order of the Deputy Director of Consolidation, dated 14.01.1976 made in the two Revisions under reference, primarily on ground that these Revisions were decided behind his back without affording him opportunity of hearing, and that the decision rendered there, substantially prejudices the petitioner as already indicated. The said restoration application was rejected by the Deputy Director by means of an order dated 21.02.1976. It is asserted by the petitioner that the finding recorded by the Deputy Director of Consolidation that the petitioner was heard in the Revision filed by Sant Kumar, and that all Revisions were heard after being consolidated, is wrong. It is asserted that each Revision was heard separately as there were different parties and different plots. It is asserted by the petitioner that the finding recorded by the Deputy Director of Consolidation that the petitioner was heard in the Revision filed by Sant Kumar, and that all Revisions were heard after being consolidated, is wrong. It is asserted that each Revision was heard separately as there were different parties and different plots. It is also asserted that there was no counter affidavit filed on behalf of the opposite parties to the restoration application, on account of which the assertions made in the restoration application, that was filed to the Deputy Director of Consolidation, remained unrebutted at the instance of any of the respondents here. It is also asserted that the petitioner's son was not present at the hearing of the Revision, or at the time of local inspection, as already asserted. There is a particular assertion in paragraph 7 of the Writ Petition that the Deputy Director of Consolidation ordered that the petitioner be allotted land on his original holding bearing plot No. 1460, but in the adjustment chart, plot No. 1460 has not been given to him. Instead plot Nos. 1660, 1263, 1264, 1266 and 1473, have been entered in the petitioner's chak, that are far inferior than plot No. 1460. It is also claimed in the paragraph under reference that earlier, the petitioner was given two chaks comprising his original holding, but now he has been given three chaks, and these do not carry his original holding. It is also asserted that Sant Kumar has been given the best quality land, whereas his original holding was of bad quality, mostly. There is an assertion in paragraph 8 of the Writ Petition that the Revision filed by Sant Kumar against the order of the Settlement Officer of Consolidation, dated 31.10.1974, was filed on 03.06.1975. It was barred by time, but the same has been entertained and allowed, without condoning the delay in filing the Revision. 10. Of the two respondents, that is to say, Sant Kumar, respondent No. 2 and Guru Granth, respondent No. 3, a counter affidavit has been filed on behalf of Guru Granth alone. It is an affidavit dated 12th July, 2009. No counter affidavit has, however, been filed on behalf of respondent No. 2. 10. Of the two respondents, that is to say, Sant Kumar, respondent No. 2 and Guru Granth, respondent No. 3, a counter affidavit has been filed on behalf of Guru Granth alone. It is an affidavit dated 12th July, 2009. No counter affidavit has, however, been filed on behalf of respondent No. 2. Something that requires to be noticed regarding respondent No. 3 evident from the counter affidavit filed on their behalf, is that the party described as Guru Granth in Revision No. 428, Guru Granth vs. Naumi and others, decided by the impugned judgment and order dated 14.01.1976, is not a man in flesh and blood. Instead, the party referred as Guru Granth, is a Math of Guru Granth Ji Mahatam Swami, represented by its Mahanth, Mahanth Balak Dass. In the counter in paragraphs 4, 5 & 6, the petitioner's assertions that the two Revisions Nos. 583 and 428 filed by Sant Kumar and Guru Granth respectively, have been decided without notice or opportunity to the petitioner, have been specifically denied. The said fact has been refuted with reference to the findings recorded in the subsequent order of the Deputy Director of Consolidation, dated 21.02.1976, passed on the restoration application preferred by the petitioner. In paragraph 6 of the rejoinder affidavit, it is asserted amongst other things that the assertion in paragraph 4 of the counter affidavit about denial of opportunity, has not been specifically denied in the counter affidavit. 11. Since the question of the two Revisions being decided vitally affecting the petitioner's chak without opportunity of hearing to him as claimed, is a question that goes to the root of the matter, it is expedient to deal with and answer the issue in the first instance. Both, Sri Rahul Sripat, learned Senior Advocate and J.N. Sharma, learned counsel appearing for respondent Nos. 2 & 3 are firm in their respective stands about the issue. 12. The Court has considered the matter and, in particular, perused the order dated 21.02.1976, which is an order passed by the Deputy Director of Consolidation, on the restoration application preferred by the petitioner, where the principal ground was denial of opportunity, and decision of the Revisions under reference against the petitioner without notice to him or within his knowledge. 12. The Court has considered the matter and, in particular, perused the order dated 21.02.1976, which is an order passed by the Deputy Director of Consolidation, on the restoration application preferred by the petitioner, where the principal ground was denial of opportunity, and decision of the Revisions under reference against the petitioner without notice to him or within his knowledge. The Deputy Director has recorded a specific finding with reference to Revision No. 428, that is, the Revision filed by respondent No. 3, Guru Granth to the effect that the petitioner was issued notice of the said Revision, the record of which is appended to the Revision papers. It has further been recorded that the order-sheet of this Revision has been signed by the petitioner. A further finding has been recorded that the petitioner has also been heard in opposition to the Revision preferred by the revisionist, Sant Kumar, even though the order-sheet of that Revision, does not bear his signatures. There is a further specific finding recorded by the Deputy Director of Consolidation, that the petitioner's son was present at the time of spot inspection. Now, this Court thinks that the other contention of the petitioner that the spot inspection was done by the Deputy Director of Consolidation in his absence, particularly of his son, must also be disposed of here. The contention that the petitioner was not heard in opposition to the Revision, is essentially a question to be answered with reference to record. To the extent that it cannot be answered with reference to record, it can best be answered with reference to personal knowledge of the Presiding Officer who heard the matter, or the learned counsel who appeared in the proceedings. A perusal of the later order dated 21.02.1976 passed by the Deputy Director shows that it is an order recorded by Sri Ram Sahai Lal Srivastava, the then Deputy Director of Consolidation, Azamgarh. It is the said Officer who decided the two Revisions under reference, along with a host of others by his judgment and order dated 14.01.1976. Thus, the said Officer is in a pre-eminent position to certify as to whether the petitioner, in fact, appeared and was heard in the two Revisions or not. He has specifically recorded, in his order dated 21.02.1976, that the petitioner was heard in both the Revisions. Thus, the said Officer is in a pre-eminent position to certify as to whether the petitioner, in fact, appeared and was heard in the two Revisions or not. He has specifically recorded, in his order dated 21.02.1976, that the petitioner was heard in both the Revisions. It is also recorded by him that on the order-sheet of Revision No. 428, the petitioner has appended his signatures. As regards Revision No. 583 filed by Sant Kumar, the Deputy Director of Consolidation has remarked that though he has not signed the order-sheet, but in fact he was heard in opposition to the said Revision. There is no record or evidence to the contrary filed by the petitioner to show that in fact he was never served with notice of the Revision, or that he did not appear at the hearing of the two Revisions. Though the assertions by the petitioner are specific that he did not appear at the hearing of the two Revisions, but there is not the slightest evidence to displace the strong presumption that arises from the contents of the order dated 21.02.1976 passed by the Deputy Director of Consolidation, both with reference to record and his personal knowledge, that the petitioner was heard in answer to the Revisions. About one of the Revisions as already said, there are signatures of the petitioner on the order-sheet. The petitioner has not said anywhere that the signatures on the order-sheet of Revision No. 428 filed by respondent No. 3, are not his signatures. The order of the Deputy Director of Consolidation, dated 21.02.1976, was filed along with the Writ Petition, as one of the two impugned orders, or as one of the orders on record. The petitioner was well aware of the finding there that the Deputy Director of Consolidation has said that the petitioner has signed the order-sheet of Revision No. 428, but the petitioner has not asserted or averred anywhere in the Writ Petition, that those signatures on the order-sheet are forged, or in any way not his signatures. The petitioner has also not said anywhere that the findings in the order dated 21.02.1976, which says that the petitioner was heard in opposition to the Revision, has been falsely recorded on account of some malice of the Presiding Officer though he has said that the finding that he was heard in the Revision filed by Sant Kumar is incorrect. The petitioner has also not said anywhere that the findings in the order dated 21.02.1976, which says that the petitioner was heard in opposition to the Revision, has been falsely recorded on account of some malice of the Presiding Officer though he has said that the finding that he was heard in the Revision filed by Sant Kumar is incorrect. In the absence of allegations of mala fide against the Presiding Officer, the presumption of regularity that attaches to all official actions, more particularly, when they are done in a judicial capacity, also attaches to the remark of the Presiding Officer, who has certified that the petitioner was heard in both Revisions. 13. In this view of the matter, there is no substance in the contention of the petitioner that he was not heard while deciding the Revisions under reference by means of impugned order dated 14.01.1976. 14. Likewise, the other contention that the petitioner's son was not present at the time of spot inspection by the Deputy Director of Consolidation, is also not acceptable for the singular reason that it was canvassed before the same Officer who had gone about the exercise of inspection, and decided the Revision, but he did not accept the same. Instead, he specifically recorded it for a fact in his order dated 21.02.1976 that the petitioner's son was present during the spot inspection, whom he met at that time. This kind of a finding coming from the pen of the same Officer, who held the inspection and decided the Revisions under reference, cannot be disturbed by this Court in exercise of its jurisdiction under Article 226 of the Constitution. 15. It is no doubt true that the assertion in paragraph 4 of the Writ Petition that the Deputy Director of Consolidation by the orders impugned has given the petitioner bad quality land, has not been denied for a fact in paragraph 6 of the counter affidavit. However, in the assertions made in paragraph 4 of the Writ Petition, it has not been pleaded with sufficient precision as to how the land allotted to the petitioner by the order impugned, is of poor quality compared to what was proposed to him by the ACO. However, in the assertions made in paragraph 4 of the Writ Petition, it has not been pleaded with sufficient precision as to how the land allotted to the petitioner by the order impugned, is of poor quality compared to what was proposed to him by the ACO. It has also not been averred in the said paragraph that land allotted by the Deputy Director of Consolidation, is of poor quality when compared to the petitioner's original holding, that is comprised of khasra No. 1460. That assertion has figured in paragraph 7 of the Writ Petition, but in a different context of limited scope, that will be dealt with hereinafter. 16. The other grievance of the petitioner that he has been spread out in three chaks, instead of two, as proposed by the ACO, is also not in dispute. The question is whether on these grounds the consolidation scheme for the village is to be disturbed at the instance of the petitioner by interfering with the same in these writ proceedings. This Court does not think so. The framing of a provisional consolidation scheme and making it final is a wholesome exercise. It is not necessary for the Consolidation Authorities to weigh in golden scales the rights of parties when they go about the exercise of consolidation. All that is required to be done is that the fundamental principles that the Act and Rules lay down, are not violated. The petitioner has not indicated in the case that he has taken in paragraph 4 as to what was the precise valuation and nature of land that comprised his original holding and that given to him by the impugned order. A vague assertion that he has been given bad quality land, that does not spell out, in what precise terms that land is bad when compared with the land that was his original holding, or the land proposed by the ACO, is not warrant enough for this Court to interfere on that ground. So far as the question that the petitioner has been placed on three chaks instead of two as proposed by the ACO, is in no way illegal, inasmuch as, it is only when chaks more than three are allotted to a tenure holder, that prior approval of the Deputy Director of Consolidation is required. So far as the question that the petitioner has been placed on three chaks instead of two as proposed by the ACO, is in no way illegal, inasmuch as, it is only when chaks more than three are allotted to a tenure holder, that prior approval of the Deputy Director of Consolidation is required. Even that in the present case, would not apply as the allotment has been made here by the Deputy Director of Consolidation himself. In any case, the provisions of Section 19(1)(e) of the Act clearly indicate that allotment of three chaks to a tenure holder is regarded as nothing exceptionable or something which the Consolidation Authorities must go about with special care. The discretion, therefore, exercised by the Deputy Director of Consolidation on this score, cannot be faulted. 17. The last submission canvassed by Sri Rahul Sripat, learned Senior Advocate is to the effect that the Deputy Director of Consolidation has allotted land to the petitioner on his original holding bearing plot No. 1460, but in the allotment, plot No. 1460 has not been given to him. Instead, he has been given plot Nos. 1660, 1263, 1264, 1266, 1473, all of which are worse than his original holding, comprised of plot No. 1460. 18. This Court has perused the impugned order which shows that respondent No. 2, Sant Kumar has been given land from the petitioner's proposed chak, comprising plot No. 1334, that is Sant Kumar's original holding, and to compensate the petitioner, the said land that has been taken out from the eastern part of the petitioner's chak, it has been ordered that land of equivalent value in plot No. 1460, that is the original holding of the petitioner, be given. A perusal of the adjustment chart appended to the impugned order dated 14.01.1976, shows in Column 8 that the following plot numbers have been entered in the three chaks of the petitioner: 1263(M), 1264(M), 1266(M), 1463(M), 1473(M), 1463(M), 1616(M) and 1462(M). There is some more area of plot No. 1463(m), that has been entered in the petitioner's chak, may be in a different chak out of the three allotted. There is some more area of plot No. 1463(m), that has been entered in the petitioner's chak, may be in a different chak out of the three allotted. What is apparent on the face of record, is that keeping in view the orders passed by the Deputy Director of Consolidation in Revision No. 583, filed by Sant Kumar, the petitioner has not been given any part of his original holding in plot No. 1460. There is, thus, clearly incongruence between the impugned order and the adjustment chart appended to it, in terms whereof plot numbers allotted to the petitioner are to be actually entered in the consolidation records. To this extent, the submission of Sri Rahul Sripat, learned Senior Advocate is well founded that there is incongruence between the impugned order dated 14.01.1976 and the appended chart where in the petitioner's chak, the area of land allotted on his original holding, does not figure in the adjustment chart. 19. In the result, the Writ Petition succeeds and is allowed in part only to the extent that the adjustment chart enclosed to the impugned order dated 14.01.1976 shall be appropriately corrected to bring it in accord with the order under reference and include the area of the petitioner's holding in plot No. 1460, as directed in the substantive part of the order. To this extent, the impugned order dated 14.01.1976 stands modified. Costs easy.