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2022 DIGILAW 23 (ALL)

Bal Kishun v. C. R. O.

2022-01-05

CHANDRA KUMAR RAI

body2022
JUDGMENT : Chandra Kumar Rai, J. 1. Heard Mr. Niraj Tiwari, learned counsel for the petitioner and Mr. A.P. Singh, learned counsel for respondent nos.3 and 4. 2. The present writ petition has been filed for quashing the impugned order dated 27.9.2006 passed by respondent no.2 and order dated 24.2.2009 passed by respondent no.1 in the allotment of Chak proceedings. 3. The brief facts of the case are that petitioner is Chak Holder No.154 and respondent nos. 3 and 4 are Chak Holder No.156, both parties are co-sharer accordingly Assistant Consolidation Officer proposed Chak to both parties according to the provisions of the Act specially in respect to Plot No.36 and 37 as Plot No.36 was not fit for cultivation so both parties were equally adjusted on Plot No.36 and 37. Against the proposal of Assistant Consolidation Officer, an objection under Section 20 of U.P.C.H. Act was filed by father of respondent nos.3 and 4 claiming Chak on Plot No.7. The excess area given on Ist and IIIrd Chak of respondent nos.3 and 4 be excluded and the same be adjusted on his original Plot no. 7. The shape of IInd Chak on Plot No.37 be modified to the effect that Chak be given on Plot No.37 in eastern side in North-South length. Petitioner also filed objection to the extant that double entry in respect of Chak Marg be expunged. The Consolidation Officer by order dated 27.1.2006 allowed the objection of respondent no.3 and 4 as well as of petitioner partly. Against the order of Consolidation Officer dated 27.1.2006, petitioner and respondent nos.3 and 4 filed their appeals separately under Section 21(2) of U.P.C.H. Act which were numbered as Appeal No.1178 & 1144 respectively. The Assistant Settlement Officer of Consolidation by order dated 12.7.2006 disposed of both the appeals reducing the Chakout area of Plot No.37/2 from 218 air to 56 air in the eastern side of abadi. Petitioner was given the Northern side and respondents were given in Southern side of the Plot No.37/2. The Chak allotted at the stage of Consolidation Officer stage was set aside. Petitioner's claim for allotment in the western side on Plot No.7 taking into account the petitioner's well, was accepted. The claim of the respondents in respect of Chak marg was accepted and Chak marg was given to him in Northern side. The Chak allotted at the stage of Consolidation Officer stage was set aside. Petitioner's claim for allotment in the western side on Plot No.7 taking into account the petitioner's well, was accepted. The claim of the respondents in respect of Chak marg was accepted and Chak marg was given to him in Northern side. Against the order dated 12.7.1996, respondent no.4 filed a restoration application before respondent no.2 who has allowed the restoration application by order dated 27.9.2006 and schedule/chart was also amended accordingly. Petitioner filed a Revision No.7, under Section 48 of U.P.C.H. Act against the order dated 27.9.2006 with the prayer to set aside the order dated 27.9.2006 and maintain the earlier schedule dated 12.7.2006 and the stage of Assistant Consolidation Officer with respect to allotment be restored in the interest of justice. Respondent no.1 heard the Revision No.7 filed by the petitioner but respondent no.1 by impugned order dated 24.2.2009 dismissed the revision without considering the petitioner's case. 4. The contesting respondent no.4 filed Caveat in the aforementioned writ petition through Mr. Anil Kant Tripathi, Advocate and Hon'ble Court heard the writ petition in presence of counsel for the parties and passed order dated 15.4.2009 which is as follows:- "Learned counsel for the petitioner is permitted to make necessary correction in the a ay of parties. This writ petition arises out of chak allotment proceedings and the dispute is between real brothers. Petitioner is having one chak while his two brothers having a joint chak. During the course of arguments on the suggestion made by the Court, learned counsel for the parties state that their clients are ready to exchange the chak which will end dispute. Let this fact be brought on record of the case on an affidavit to be filed by both the parties stating that they are ready to exchange the chak allotted to each other vide amended chart dated 27.1.2006 within one month from today. List/put up on 18th May, 2009. Till the next date of listing, effect and operation of the amended chart dated 27.9.2006 prepared in pursuance to the order of the Settlement Officer Consolidation shall not be given effect to." 5. List/put up on 18th May, 2009. Till the next date of listing, effect and operation of the amended chart dated 27.9.2006 prepared in pursuance to the order of the Settlement Officer Consolidation shall not be given effect to." 5. Again on 23.11.2020, following interim order was passed: - "On the suggestion made by the Court, that their clients are ready to exchange their chak which will end the dispute, this Court vide order dated 15.04.2009, directed to bring this fact on record by means of an affidavit to be filed by both the parties. Petitioner has filed his affidavit, but respondent nos.4 and 5 have neither filed any affidavit nor anyone is present today. Considering the facts and circumstances, interim order passed on 15.04.2009 is extended until further orders." 6. Respondent no.4 and 5 have not filed any counter affidavit in the writ petition nor accepted the proposal/suggestion made by the Court to exchange their respective Chak, however, petitioner has filed supplementary affidavit accepting the proposal of the Court to exchange their Chak as both parties are co-sharer and belongs to same family. 7. Hence there is no option except to decide the writ petition on merit. 8. Learned counsel for the petitioner contended that Assistant Consolidation Officer has rightly proposed the Chak to petitioner and respondent nos.4 and 5 according to their share but Consolidation Officer and Settlement Officer of Consolidation by order dated 27.9.2006 interfered with allotment by which respondent nos.4 and 5 have been given Chak in front of the house of petitioner. It is further contended that respondent nos.4 and 5 have been given major area on Plot No.37 and petitioner was given minor part on Plot No.37, all these points were taken in grounds of revision before respondent no.1 as well as very well argued and pressed but respondent no.1 has illegally and arbitrarily dismissed the revision filed by petitioner. Learned counsel for the petitioner further argued that comparative hardship of the petitioner has not been taken into consideration at all, as such, impugned orders are liable to be set aside and stage of Assistant Consolidation Officer be maintained. 9. On the other hand, learned counsel for the respondent nos. 4 and 5, Mr. Learned counsel for the petitioner further argued that comparative hardship of the petitioner has not been taken into consideration at all, as such, impugned orders are liable to be set aside and stage of Assistant Consolidation Officer be maintained. 9. On the other hand, learned counsel for the respondent nos. 4 and 5, Mr. A.P. Singh argued that matter relates to allotment of Chak, both parties are co-sharer, equity has been adjusted between the parties, as such, no interference is required against impugned orders and writ petition is liable to be dismissed. 10. I have considered the submission of learned counsel for the parties. 11. There is no dispute about the fact that both parties are co-sharer, as such, both parties are entitled to good and bad quality of land in the allotment of Chak proceeding in equal proportion as far as possible. The Assistant Consolidation Officer has rightly made the proposal for allotment to both parties but the same was interfered with by the Consolidation Officer and Settlement Officer of Consolidation, hence petitioner filed the revision, under Section 48 of U.P.C.H. Act taking specific grounds in his grounds of revision which are as follows:- 12. Respondent no.1 while deciding the revision of the petitioner filed under Section 48 of U.P.C.H. Act has not taken into consideration the point taken into revision as well as argued before him. The comparative hardship of the petitioner has also not been taken into consideration and in the cursory manner decided the revision which is against the principle prescribed under U.P.C.H. Act as well as the law laid down by the Court. Since the revisional Court is last Court of fact, as such, revisional Court should examine the matter with most care and caution. On the question of comparative hardship, this Court in the case of Mahabeer Vs. Deputy Director of Consolidation, Jaunpurand Others reported in 2005 (99) R.D.65 has held that revisional Court should examine the comparative hardship of both parties in the allotment of Chak proceedings. 13. It is also noticed that scope of revision under Section 48 of U.P.C.H. Act by insertion of explanation (3) w.e.f. 10.11.1980 has become wider, as such, revisional Court should examine the point raised in revision in detail and decide the revision, accordingly and this Court expect most care and attention of the revisional Court in finalizing the matter. 13. It is also noticed that scope of revision under Section 48 of U.P.C.H. Act by insertion of explanation (3) w.e.f. 10.11.1980 has become wider, as such, revisional Court should examine the point raised in revision in detail and decide the revision, accordingly and this Court expect most care and attention of the revisional Court in finalizing the matter. Section 48 of U.P.C.H. Act is as follows:- “(1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate 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 other than an interlocutory order passed by such authority in the case or proceedings and may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit. (2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under subsection (3). (3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1). Explanation (1)- For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation. Explanation (2) - For the purposes of this section the expression 'interlocutory order' in relation to a case or proceeding, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect to finally disposing of such case or proceeding. Explanation (3) - The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence." 14. Explanation (3) - The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence." 14. It is also material that allegation made in the writ petition has not been controverted by respondent no.4 and 5 by filing counter affidavit or by filing affidavit in terms of proposal of the Court to exchange their Chak in order to end the litigation, accordingly allegation made in the writ petition cannot be ignored that petitioner has been deprived of the Chak of better quality of land as well as in front of the house. 15. In facts and circumstances of the case, the impugned revisional order dated 24.2.2009 passed by respondent no.1 (Annexure No.7 to the writ petition) and order dated 27.9.2006 passed by respondent no.2 (Annexure No.4 to the writ petition) are quashed and the dispute is remanded back to the Deputy Director of Consolidation, Azamgarh to decide the Revision afresh in the light of the observation mentioned above after notice and opportunity of hearing to the parties preferably within a period of six months from the date of receipt of certified copy of this order. 16. The writ petition, accordingly, stands allowed.