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2021 DIGILAW 1000 (ALL)

Ram Preet Yadav v. D. D. C.

2021-09-02

SALIL KUMAR RAI

body2021
JUDGMENT : Salil Kumar Rai, J. 1. List has been revised. 2. Heard the counsel for the petitioner. No one has appeared for the respondents. 3. The dispute in the present writ petition as well as in the consolidation proceedings from which the present writ petition arises relates to Plot No. 316/1, the total area of which was 0.166 hectare. The petitioner is the original tenure holder of the disputed plot. During the consolidation operations, 0.045 hectare of the plot was initially excluded from the consolidation operations. The respondent nos. 4 to 9 filed an application under Section 9-A of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953') registering Case No. 516 claiming that the plot was liable to be included in the consolidation operations and was wrongly excluded from the same. The Consolidation Officer vide his order dated 3.3.1997 determined the valuation of the plot and included it within the consolidation operations. Against the order dated 3.3.1997 passed by the Consolidation Officer, the petitioner filed Appeal No. 756 of 1997 under Section 11(1) of the Act, 1953 which was allowed by the Settlement Officer of Consolidation vide his order dated 29.1.1999 and 0.046 hectare on the eastern side of Plot No. 316/1 was excluded from the consolidation operations. A reading of the order dated 29.1.1999 passed by the Settlement Officer of Consolidation reveals that the order was passed after a spot inspection was made by the Settlement Officer of Consolidation. Against the order dated 29.1.1999, the respondent nos. 4 to 9 filed Revision No. 363 under Section 48 of the Act, 1953 before the Deputy Director of Consolidation, Mau, i.e., respondent no. 1. 4. Meanwhile, proceedings for allotment of chaks started and it appears from C.H. Form -23 of the petitioner annexed as Annexure S.A. -2 to one of the supplementary affidavits filed by the petitioner that in the provisional consolidation scheme, the petitioner was proposed a chak on Plot Nos. 314/1 and 314/2 which were the original holdings of the respondents and the respondents were allotted a chak on Plot No. 316/1. Consequently, the petitioner filed objections before the Consolidation Officer praying for an additional 0.015 hectare on Plot No. 316/1 which was allotted to respondent nos. 4 to 9. The said objections of the petitioner were dismissed by the Consolidation Officer vide his order dated 27.4.1998. Consequently, the petitioner filed objections before the Consolidation Officer praying for an additional 0.015 hectare on Plot No. 316/1 which was allotted to respondent nos. 4 to 9. The said objections of the petitioner were dismissed by the Consolidation Officer vide his order dated 27.4.1998. Against the order dated 27.4.1998, the petitioner filed Appeal No. 237 under Section 21(2) of the Act, 1953 which was allowed by the Settlement Officer of Consolidation vide his order dated 12.8.1998. Through his order dated 12.8.1998, the Settlement Officer of Consolidation withdrew 0.015 hectare from Plot No. 316/1 allotted to respondent nos. 4 to 9 and allotted the same in the chak of the petitioner. Against the order dated 12.8.1998 passed by the Settlement Officer of Consolidation, the respondent nos. 4 to 7 filed Revision No. 331 under Section 48 of the Act, 1953 before the Deputy Director of Consolidation. 5. It appears that Revision No. 331 and Revision No. 363 were consolidated and heard together. The Deputy Director of Consolidation vide his order dated 17.2.2001 allowed Revision Nos. 331 and 363 by setting-aside the orders dated 12.8.1998 and 29.1.1999 passed by the Settlement Officer of Consolidation and consequently restored the orders dated 3.3.1997 and 27.4.1998 passed by the Consolidation Officer and, thus, the chaks allotted to the petitioner by the proposal of the Assistant Consolidation Officer were retained. The petitioner filed a recall application before the Deputy Director of Consolidation for recall of the order dated 17.2.2001 on the ground that the spot inspection memo prepared in pursuance to the spot inspection done by the Deputy Director of Consolidation was not made a part of the record. The Deputy Director of Consolidation vide his order dated 20.6.2003 dismissed the recall application filed by the petitioner. The orders dated 17.2.2001 and 20.6.2003 passed by the Deputy Director of Consolidation have been challenged in the present writ petition. 6. It was argued by the counsel for the petitioner that the objections filed by respondent nos. 4 to 7 challenging the exclusion of Plot No. 316/1 from the consolidation operations were not maintainable under Section 9-A of the Act, 1953 as respondent nos. 4 to 7 were not the original tenure holders of the disputed plot and the said objections could have been filed by the respondents only in proceedings under Sections 20 and 21 of the Act, 1953. 4 to 7 were not the original tenure holders of the disputed plot and the said objections could have been filed by the respondents only in proceedings under Sections 20 and 21 of the Act, 1953. It was argued that for the aforesaid reason, the order dated 3.3.1997 passed by the Consolidation Officer exercising his powers under Section 9-A of the Act, 1953 at the instance of respondent nos. 4 to 7 was without jurisdiction and the revisional court, i.e., the Deputy Director of Consolidation has wrongly restored the said order. It was further argued that the spot inspection allegedly made by the Deputy Director of Consolidation has not been referred in the impugned order dated 17.2.2001 which indicates that the spot inspection done by the Deputy Director of Consolidation was not considered by him while passing the order dated 17.2.2001 and the order has been passed without any application of mind. It was further argued that because spot inspection memo was not included in the records by the Deputy Director of Consolidation, the petitioner was not given any opportunity to argue on the spot inspection done by the Deputy Director of Consolidation. It was argued that for the aforesaid reasons, the order dated 17.2.2001 passed by the Deputy Director of Consolidation is contrary to law and is liable to be set-aside. In support of his arguments, the counsel for the petitioner has relied on the judgments delivered by this Court in Nathunee & Ors. Vs. Deputy Director of Consolidation, Ghazipur & Anr. 2005 (1) AWC 443 , Writ -B No. 10265 of 1991 (Ghurfechan Vs. D.D.C. & Ors.), Writ -B No. 13705 of 2001 (Rejendra Kumar Upadhya Vs. D.D.C. & Anr.) and Writ -B No. 59621 of 2012 (Dr. Parmeshwar Dutt Shukla Vs. D.D.C. & Ors.). 7. I have considered the submissions of the counsel for the petitioner. 8. The order dated 17.2.2001 passed by the Deputy Director of Consolidation was on merits and after hearing the counsel for the parties. In view of the aforesaid, there is no illegality in the order dated 20.6.2003 passed by the Deputy Director of Consolidation rejecting the application for recall filed by the petitioner and the prayer of the petitioner to quash the order dated 20.6.2003 is rejected. 9. The order of the Consolidation Officer under Section 9-A of the Act, 1953 was passed on 3.3.1997. 9. The order of the Consolidation Officer under Section 9-A of the Act, 1953 was passed on 3.3.1997. It is further apparent from Annexure No. 4 to the writ petition that the objections to the provisional consolidation scheme were filed by the petitioner on 26.4.1997. Obviously, the objections to the provisional consolidation scheme had been filed by the petitioner only after the said scheme had been published under Section 20 of the Act, 1953. It is settled law that if the authority passing the order has jurisdiction to pass the said order in some statutory provision, the order shall not be bad in law and shall not be struck down by the courts only on the ground that a wrong provision has been quoted in the order justifying exercise of power. Thus, if the order dated 3.3.1997 had been passed after the provisional consolidation scheme had been published, the same would not be bad in law merely because the order indicates that the application was filed under Section 9-A of the Act, 1953 because valuation of the disputed plot could have been changed by the consolidation authorities in the allotment proceedings. The records before this Court are not sufficient to enable this Court to record any finding as to whether the order dated 3.3.1997 was passed by the Consolidation Officer before or after the provisional consolidation scheme had been published. Apart from the aforesaid, under Section 48 of the Act, 1953, the Deputy Director of Consolidation is empowered to suo motu take cognizance and examine any order or proceedings before any sub-ordinate authority for the purpose of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order passed by such authority. Thus, even if the order dated 3.3.1997 passed by the Consolidation Officer was not within his jurisdiction, the impugned order passed by the Deputy Director of Consolidation cannot be considered as bad in law merely because it refers to the order of the Consolidation Officer as the Deputy Director of Consolidation himself had the power to amend the valuations of different plots and to include the disputed plot within the consolidation operations. For the said reasons, the orders passed by the Consolidation Officer and the Deputy Director of Consolidation cannot be held to be without jurisdiction. 10. For the said reasons, the orders passed by the Consolidation Officer and the Deputy Director of Consolidation cannot be held to be without jurisdiction. 10. However, a reading of the order passed by the Settlement Officer of Consolidation indicates that the order dated 12.8.1998 was passed by the Settlement Officer of Consolidation after making a spot inspection of the disputed plot. A reading of the order dated 17.2.2001 passed by the Deputy Director of Consolidation also indicates that a spot inspection was made by the Deputy Director of Consolidation. However, from a reading of the orders dated 17.2.2001 and 20.6.2003 passed by the Deputy Director of Consolidation, it also apparent that the spot inspection memo, if prepared, was not made a part of the records of the case. If the Deputy Director of Consolidation had made a spot inspection, he was liable to prepare a report of the same and place it on record so as to enable any higher court to verify the correctness or legality of his orders. 11. It appears from the different records annexed with the writ petition that the petitioner claims chak on disputed plot in view of the fact that certain fruit trees were planted by him on the plot and the same are still in existence. It also appears that the said trees, according to the Deputy Director of Consolidation, were planted subsequent to the notification under Section 4 of the Act, 1953 and the Deputy Director of Consolidation has held that because the trees were planted subsequent to the notification under Section 4 of the Act, 1953, the same do not confer any right on the petitioner. In allotment of chaks, the equities between the parties are relevant factors to be taken into consideration as held by this Court in Nathunee (supra). A reading of the order dated 17.2.2001 passed by the Deputy Director of Consolidation shows that while passing the impugned order, the Deputy Director of Consolidation did not consider the case of the petitioner and the fact that the fruit tress planted by the petitioner were part of the plot being withdrawn from his chak and included in the chak of respondent nos. 4 to 7 even though the disputed plot was the original holding of the petitioner and not of the respondent nos. 4 to 7. Merely because the respondent nos. 4 to 7 even though the disputed plot was the original holding of the petitioner and not of the respondent nos. 4 to 7. Merely because the respondent nos. 4 to 7 had their abadi adjacent to the disputed plot could not, by itself, be a ground to withdraw the said plot from the chak of the petitioner. It is clarified that the existence of the abadi of the respondents may be a relevant ground considered along with other factors while deciding the carvation and allotment of chaks but the same cannot be a sole ground to allot the petitioner's original holding in the chak of the respondents. A reading of the order dated 17.2.2001 passed by the Deputy Director of Consolidation shows that while restoring the orders passed by the Consolidation Officer, the Deputy Director of Consolidation had not considered all the factors necessary to be considered in allotment of chaks proceedings and the order reveals a total non-application of mind by the Deputy Director of Consolidation. 12. In light of the aforesaid, the order dated 17.2.2001 passed by the Deputy Director of Consolidation in Revision Nos. 331 and 363 is, hereby, quashed. 13. The matter is remanded back to the Deputy Director of Consolidation, Mau, i.e., respondent no. 1 to decide Revision Nos. 331 and 363 in accordance with law and in light of the observations made above after giving the parties an opportunity of hearing within a period of six months from the date a copy of this order is filed before him. 14. With the aforesaid directions, the writ petition is partly allowed.