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2024 DIGILAW 1068 (ALL)

Yashomati v. State of U. P.

2024-04-16

CHANDRA KUMAR RAI

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JUDGMENT Chandra Kumar Rai, J. Heard Mr. Awadhesh Kumar Yadav, learned Counsel for the petitioner, Mr. Sanjay Kumar Pandey holding brief of Mr. Amzad Rza, learned counsel for respondent Nos.3 and 4 and Mr. Jitendra Narain Rai, learned Additional Chief Standing Counsel for the State-respondents 2. Brief facts of the case are that petitioner is chak holder No. 503 and original plots of petitioner are Gata No. 222, 325/1, 494 M area 0.143. Assistant Consolidation Officer has proposed single chak to the petitioner of plot No. 494 M area 0.141 hectare. Respondent No.3 is chak holder No. 745 and original plots of the respondent No.3 area 457/2, 457/1, 494M area 0.377 hectare. Assistant Consolidation Officer has proposed two chaks to respondent No.3 first chak on plot No. 494M and second chak on plot No.457/1M total area 0.332 hectare. Against the proposal of Assistant Consolidation Officer, chak objection was filed by respondent No.6, which was decided vide order dated 10.04.2023. Against the order of Consolidation Officer dated 10.04.2023 chak appeal under Section 21 (2) of U.P.C.H. Act was filed by respondent No.3 before the Settlement Officer of Consolidation claiming allotment of plot No.494 taking into consideration the source of her irrigation, two more appeals were filed against the order of Settlement Officer of Consolation Officer one by Chaturbhuji and another by Ummed Ali. All the three appeals were consolidated and heard together and Settlement Officer Consolidation vide order dated 26.08.2023 dismissed the appeals filed by respondent Nos. 3 (Ummed Ali) and 4 (Sahrunnisha) but Appeal filed by respondent No.5 (Chaturbhuji) was allowed. Against the appellate order dated 26.08.2023 a revision under Section 48 (1) of U.P.C.H. Act was filed by respondent No.3 which was registered as revision No.934 of 2023. Deputy Director of Consolidation vide impugned order dated 27.12.2023 allowed the revision, hence the instant writ petition filed on behalf of the petitioner challenging the impugned order dated 27.12.2023 passed by respondent No.2/Deputy Director of Consolidation in revision No.934 of 2023. 3. The matter has been entertained by this Court on 19.03.2024 issuing notice to respondent No.6 and parties were directed to maintain status quo. 4. In pursuance of the order dated 19.03.2024, respondent Nos.3 to 5 have filed their counter affidavit. 5. Learned counsel for the petitioner submitted that Deputy Director of Consolidation without considering the case of petitioner, disturbed the petitioner's chak at the revisional stage. 4. In pursuance of the order dated 19.03.2024, respondent Nos.3 to 5 have filed their counter affidavit. 5. Learned counsel for the petitioner submitted that Deputy Director of Consolidation without considering the case of petitioner, disturbed the petitioner's chak at the revisional stage. He further submitted that hardship of the petitioner has not been considered at all and revision filed by respondent No.3 has been allowed. He next submitted that Deputy Director of Consolidation has mentioned the case of the revisionist only while allowing the revision, which is wholly illegal. He further submitted that jurisdiction exercised by Deputy Director of Consolidation under Section 48 (1) of U.P.C.H. Act is against the provisions of the Act, as such the impugned order is liable to be set aside. 6. On the other hand, Mr. Sanjay Kumar Pandey holding brief of Mr. Amzad Rza, learned counsel for respondent Nos.3 and 4 submitted that Deputy Director of Consolidation has assigned the reason in the impugned order for disturbing the chak of the petitioner. He submitted that Deputy Director of Consolidation has mentioned the fact that source of irrigation of the revisionist is situated in the plot in question, as such prayer made by the revisionist for allotment of chak of plot No.494 has been accepted under the impugned order. He further submitted that there is no violation of provision of Section 19 of U.P.C.H. Act, therefore, no interference is required in the matter and writ petition is liable to be dismissed. 7. I have considered the arguments advanced by the learned counsel for the parties and perused the record. 8. There is no dispute about the fact that chak objection filed by respondent No.6 was decided by Consolidation Officer and petitioner was satisfied from the order of Consolidation Officer. There is also no dispute about the fact that respondent No.3 has filed chak appeal, which was dismissed by Settlement Officer of Consolidation but in chak revision filed by respondent No.3, chak of the petitioner has been disturbed. 9. In order to appreciate the controversy involved in the writ petition, the perusal of the finding recorded by Deputy Director of Consolidation while passing the impugned revisional order will be relevant which is as under: 10. Perusal of the finding of fact recorded by revisional Court reveals that there is no consideration of the petitioner's case while deciding the chak revision. Perusal of the finding of fact recorded by revisional Court reveals that there is no consideration of the petitioner's case while deciding the chak revision. It is well settled that comparative hardship of both the parties is to be considered by the Deputy Director of Consolidation while exercising the jurisdiction under Section 48 (1) of U.P.C.H.Act. 11. This Court in the case reported in 2003 (95) R.D. 701 Dharam Deo and others v. Deputy Director of Consolidation and others has held that revisional court being last Court for making equitable adjustment is required to deal with comparative hardship of both parties by making reference to their gain and loss. 12. Considering the entire facts and circumstances of the case, the impugned revisional order dated 27.12.2023 passed by Deputy Director of Consolidation is liable to be set aside and is hereby set aside. The writ petition is allowed in part and matter is remitted back before the respondent No.2-Deputy Director of Consolidation to register the revision on its original number and decide the same considering the comparative hardship of both the parties in accordance with law expeditiously and preferably within a period of four months from the date of production of certified copy of this order after giving opportunity of hearing to the parties concerned and without granting unnecessary adjournments to either of the parties.