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2024 DIGILAW 1358 (ALL)

Gabbu Lal v. Deputy Director of Consolidation

2024-05-17

CHANDRA KUMAR RAI

body2024
JUDGMENT : CHANDRA KUMAR RAI, J. 1. Heard Mr. Dharmendrahar Dubey for petitioners, Mr. Shrawan Kumar Tripathi, learned Counsel for the respondent No. 4, Mr. Pankaj Kumar Gupta for respondent No. 5-Gram Sabha and learned Standing Counsel for the State-respondent Nos. 1, 2 and 3. 2. Brief facts of the case are that petitioner is chak holder No. 145 and original holding of petitioner is plot no. 45 area 0.511 hectare. The Assistant Consolidation Officer has proposed two chak to petitioner, first chak on plot No. 43 M area 0.090 plot No. 45 M area 0.178 and Second Chak on plot No. 782/1 area 0.002, 783 area 0.050, 784 area 0.134. Respondent No. 4 is chak holder No. 194-Aa and Vijay Shanker (son of respondent No. 4) is chak holder No. 930. Petitioner filed a chak objection against the proposal of Assistant Consolidation Officer claiming allotment on plot Nos. 75 and 76 which was recorded as bachat. The grievance of the petitioner was considered and consolidation officer vide order dated 30.10.2018 decided the chak objection by allotting chak on plot Nos. 75, 76, 777 and 784. Respondent No. 4/Smt Gulabi Devi filed an appeal under Section 21 (2) of U.P. Consolidation of holdings Act 1953 hereinafter referred to as U.P.C.H. Act before Settlement Officer of Consolidation which was dismissed vide order dated 30.09.2020. Respondent No. 4 challenged the appellate order dated 30.09.2020 by way of revision under Section 48 of U.P.C.H. Act which has been allowed under the impugned order dated 26.12.2022 taking out plot Nos.75 and 76 area 0.167 hectare from the petitioner's chak and in lieu thereof petitioner has been allotted chak on plot Nos. 86 and 87 area 0.167 hectare hence this writ petition on behalf of petitioner for following relief: “(I) issue a writ, order or direction in the nature of certiorari, quashing the impugned order dated 26.12.2022 passed by the respondent No. 1 (Deputy Director of Consolidation) in revision (Annexure No. 7 to the writ petition).” 3. This Court vide order dated 29.08.2023 issued notice to respondent No. 4 accordingly respondent No. 4 has filed her counter affidavit and petitioner has filed his rejoinder affidavit. 4. Learned counsel for the petitioner submitted that petitioner was allotted plot Nos. 75 and 76 by Consolidation Officer which was recorded as bachat as such respondent No. 4 who is vendee of plot Nos. 4. Learned counsel for the petitioner submitted that petitioner was allotted plot Nos. 75 and 76 by Consolidation Officer which was recorded as bachat as such respondent No. 4 who is vendee of plot Nos. 86 and 87 vide sale deed executed in the year 2019 cannot be allotted chak on plot Nos. 75 and 76 which was already allotted to petitioner. He further submitted that appellate court has rightly dismissed the appeal filed by respondent No. 4 recording finding that chak appeal filed by Vijai-Shanker son of respondent No. 4 has already been dismissed vide order dated 27.12.2019 and another chak appeal filed by Chintamani has already been decided vide order 27.12.2019. He submitted that Revisional Court has allowed the revision filed by respondent No. 4 without considering the case of the petitioner in any manner, as such, the revisional order passed by Deputy Director of Consolidation, cannot be sustained in the eye of law. He further submitted that respondent No. 4 cannot be allotted chak on Plot Nos. 75 and 76 as sons of respondent No. 4 have not claimed any right after dismissal of their Chak Appeal vide order dated 27.12.2019. He finally submitted that impugned Revisional order dated 26.12.2022 is liable to be set aside and the order of Consolidation Officer and Settlement Officer Consolidation are to be maintained. 5. On the other hand, learned Counsel appearing for respondent No. 4 submitted that Plot No. 75 is original holding of sons of respondent No. 4, as such respondent No. 4 has rightly accommodated on Plot Nos.75 and 76. He further submitted that Consolidation Officer has allotted Udaan Chak to the petitioner on Plot No. 75 as Plot No. 75 is not the original holding of the petitioner. He further submitted that respondent No. 4 is widow, as such she has been rightly adjusted on the plot which originally belonged to her son. He further submitted that Deputy Director of Consolidation has rightly exercised the Revisional jurisdiction taking into consideration the provisions contained under U.P. Consolidation Manual with respect to widow. He further submitted that there is no illegality in the impugned revisional order and writ petition filed by petitioner is liable to be dismissed. He further submitted that Deputy Director of Consolidation has rightly exercised the Revisional jurisdiction taking into consideration the provisions contained under U.P. Consolidation Manual with respect to widow. He further submitted that there is no illegality in the impugned revisional order and writ petition filed by petitioner is liable to be dismissed. He further submitted that provision of Section 19 of U.P.C.H. Act has been taken into consideration while passing the impugned revisional order which requires no interference by this Court under Article 226 of the Constitution of India. 6. I have considered the argument advanced by learned counsel for the parties and perused the record. 7. There is no dispute about the fact that Consolidation Officer has allotted Plot Nos.75 and 76 to the petitioner which was recorded as Bachat in the records. There is also no dispute about the fact that appeal filed by respondent No. 4 on the basis of sale deed executed in her favour has been dismissed by Settlement Officer Consolidation, but in revision the petitioner's allotment on Plot Nos. 75 and 76 has been disturbed and in lieu thereof petitioner has been allotted Chak on Plot Nos. 86 and 87. 8. Perusal of CH Form 21 and other evidence on records demonstrate that Plot Nos. 75 and 76 was recorded as Bachat land and petitioner was allotted Chak on Plot Nos. 75 and 76 which was recorded as Bachat land. It is also established from the evidence on record that respondent No. 4 has purchased the Plot Nos. 86 and 87 by way of sale deed executed in her favour subsequent to the order passed by Consolidation Officer vide order dated 30.10.2018 accordingly, Settlement Officer Consolidation has dismissed the appeal filed by respondent No. 4 taking into consideration that Chak appeal filed by sons of respondent No. 4 has already been dismissed by Settlement Officer Consolidation. 9. The exercise of appellate jurisdiction by Settlement Officer Consolidation vide order dated 30.09.2020 is correct exercise of appellate jurisdiction. The exercise of revisional jurisdiction under Section 48 of U.P.C.H. Act by Deputy Director of Consolidation is not in accordance with the provisions of U.P.C.H. Act. Deputy Director of Consolidation should consider the comparative hardship of both parties while disturbing the Chak in revisional exercise of jurisdiction. The exercise of revisional jurisdiction under Section 48 of U.P.C.H. Act by Deputy Director of Consolidation is not in accordance with the provisions of U.P.C.H. Act. Deputy Director of Consolidation should consider the comparative hardship of both parties while disturbing the Chak in revisional exercise of jurisdiction. This court in case of Rajendra Singh and others vs. Deputy Director of Consolidation and others, 2005 (99) R.D. 46 has held that Deputy Director of Consolidation should consider hardship of both parties while deciding the Chak revision. 10. Considering the entire facts and circumstances of the case, impugned revisional order dated 26.12.2022 passed by Deputy Director of Consolidation cannot be sustained in the eye of law and same is hereby set aside. 11. The Writ Petition stands allowed and Order of Consolidation Officer 30.10.2018 and Settlement Officer Consolidation dated 30.9.2020 are hereby maintained. 12. No order as to costs.