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2024 DIGILAW 2461 (ALL)

Bharat Singh v. A. D. C.

2024-12-04

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. Civil Misc. Delay Condonation Application No. 78188 of 2016 and Civil Misc. Recall/Restoration Application No.78189 of 2016 1. Heard Mr. H.N. Singh, learned Senior Counsel assisted by Mr. Vineet Kumar Singh and Mr. Kapil Tyagi, learned counsel for the petitioner and Mr. M.D. Mishra, learned counsel assisted by Mr. S.N. Tiwari learned counsel for respondent No.2. 2.The instant restoration application along with delay condonation application have been filed to recall the order dated 19.11.2014 dismissing the writ petition as infructuous. 3. Mr. M.D. Mishra, learned counsel appearing for respondent No.2 submitted that delay has not been properly explained, as such the restoration application is liable to be rejected as time barred. He further submitted that respondent No.3 is dead as such writ petition cannot be restored unless notices are served upon proposed heirs of deceased respondent No.3. 4. Learned counsel for the petitioner submitted that writ petition arises out of chak allotment proceeding and interim order was granted in the year 1985 when the writ petition was entrained as such it requires adjudication of dispute on merit rather dismissing the writ petition as infructuous. 5. Considering the averment made in the affidavit filed in support of the recall/restoration application, the delay in filing the restoration application is condoned. 5. Cause shown in the affidavit for non appearance on the date fixed is also sufficient. 6.The order dated 19.11.2014 dismissing the writ petition as infructuous is hereby recalled and the writ petition is restored to its original number. 7. Applications are accordingly, allowed. Order on C.M.Delay condonation Application No.77912 of 2016 and C.M. Substitution Application No.77914 of 2016 1.Heard Mr. H.N. Singh, learned Senior Counsel assisted by Mr. Vineet Kumar Singh and Mr. Kapil Tyagi, learned counsel for the petitioner and Mr. M.D. Mishra,, learned counsel assisted by Mr. S.N. Tiwari, learned counsel for respondent No.2. 2. The instant substitution application along with delay condonation application have been filed to substitute the legal heirs of deceased-sole petitioner 3.Mr. M.D. Mishra, learned counsel for respondent No.2 submitted that delay has not been properly explained, as such application is liable to be rejected on the ground of limitation. 4. Learned counsel for the petitioner submitted that delay has been properly explained in the affidavit. M.D. Mishra, learned counsel for respondent No.2 submitted that delay has not been properly explained, as such application is liable to be rejected on the ground of limitation. 4. Learned counsel for the petitioner submitted that delay has been properly explained in the affidavit. He further submitted that in view of the ratio of law laid down by the Hon'ble Apex Court in the case reported in A.I.R. 1987 SC 1357 collector Land Acquisition Anantnag Vs. Mst. Kantiji , the dispute is to be adjudicated on merit rather on technical grounds. 5. Considering the averment made in the affidavit filed in support of the delay application as well s ratio of law laid down by Hon'bl;e Apex Court in the case of Collector Land Acquisition Anantnag (Supra) delay in filing the substitution application is condoned. 6. Let the word 'deceased' be mentioned against the name of sole petitioner and the name of his legal heirs as mentioned in prayer clause be substituted as petitioner Nos.1/1 and 1/2 7. Applications are accordingly allowed. Order on C.M.Delay condonation Application No.4 of 2024 and C.M. Substitution Application No.5 of 2024 along with an application for Stetting aside abatement 1.Heard Mr. H.N. Singh, learned Senior Counsel assisted by Mr. Vineet Kumar Singh and Mr. Kapil Tyagi, learned counsel for the petitioner and Mr. M.D. Mishra, learned Counsel assisted by S.N. Tiwari, learned counsel for respondent No.2. 2. The instant substitution application along with delay condonation application have been filed to substitute the legal heirs of deceased- respondent No.3, 3/1, 3/1/4, 3/2, 3/3 and 3/3/3. 3.Mr. M.D. Mishra, learned counsel for respondent No.2 submitted that unless notice are served upon the proposed heirs of respondent No.3, 3/1, 3/1/4, 3/2, 3/3 and 3/3/3, instant application cannot be allowed. He further submitted that delay has not been properly explained, as such substitution application is liable to be rejected on the ground of limitation. 4. In reply learned counsel for the petitioner submitted that instant petition arising out of chak allotment proceeding and the same is pending since 1985 before this Court. He further submitted that respondent No.3 Nathia, who was represented by learned counsel at the time of admission of the writ petition has not filed any counter affidavit in the matter as such there is necessity to issue fresh notice to the heirs of the deceased-respondent No.2-Nathia. He further submitted that respondent No.3 Nathia, who was represented by learned counsel at the time of admission of the writ petition has not filed any counter affidavit in the matter as such there is necessity to issue fresh notice to the heirs of the deceased-respondent No.2-Nathia. He further submitted that delay has been properly explained in the affidavit. He further submitted that in view of the ratio of law laid down by the Hon'ble Apex Court in the case reported in A.I.R. 1987 SC 1357 collector Land Acquisition Anantnag Vs. Mst. Kantiji , t he dispute is to be adjudicated on merit rather on technical grounds. 5. Considering the averments made in the affidavit filed in support of the delay application as well as ratio of law laid down by Hon'ble Apex Court in the case of Collector Land Acquisition Anantnag (supra), delay in filing the substitution application is condoned. 6. Let the word 'deceased' be mentioned against the name of respondent No.3, 3/1, 3/1/4, 3/2, 3/3 and 3/3/3 and the name of their legal heirs as mentioned in prayer clause be substituted as respondent Nos. 3/1, 3/2, 3/3,3/1/1, 3/1/2, 3/1/3, 3/1/4, 3/1/4/1, 3/1/4/2, 3/1/4/3, 3/2/1, 3/2/2, 3/3/1, 3/3/2, 3/3/3, 3/3/4, 3/3/5, 3/3/3/1, 3/3/3/2, 3/3/3/3 and 3/3/3/4. 7. Applications are accordingly disposed of. . Order on Writ Petition 1. Heard Mr. H.N. Singh, learned Senior Counsel assisted by Mr. Vineet Kumar Singh and Mr. Kapil Tyagi, learned counsel for the petitioner and Mr. M.D. Mishra, learned counsel assisted by Mr. S.N. Tiwari, learned counsel for respondent No.2. 2. Brief Facts of the case are that petitioner is chak holder No.128. Respondent No.2 is chak holder No.114 and respondent No.3 is chak holder No.88. Assistant Consolidation Officer has proposed chak to the tenure holder according to the provisions of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the U.P.C.H. Act). Petitioner filed a chak objection against the proposal of Assistant Consolidation Officer claiming that he should be provided one chak instead of two chaks, as well as his second chak be abolished and same may be adjusted on his first chak comprising of plot No.221. Plot No.221 is the original plot of the petitioner having ½ share and his co-tenure holder namely, Govinda and Harkaran have got ¼ share each. Other chak objections were also filed against the proposal of the Assistant Consolidation Officer. Plot No.221 is the original plot of the petitioner having ½ share and his co-tenure holder namely, Govinda and Harkaran have got ¼ share each. Other chak objections were also filed against the proposal of the Assistant Consolidation Officer. Five chak objections were clubbed and heard together including chak objection filed by the petitioner. Consolidation officer vide order dated 22.05.1984 allowed the chak objection of the petitioner allotting him chak on plot no.117, 221, 176, 177 taking out the plot No.205 etc. from the chak of the petitioner. Against the order of Consolidation Officer dated 22.05.1984 four appeals were filed before Settlement Officer of Consolidation under Section 21 (2) of U.P.C.H. act which was registered as appeal No.47 Nathia Vs. Bharat Singh, Appeal No. 50 Chandar and others vs. Bhima and others, Appeal No.251 Bhuley Ram vs. Mahendra Singh and others, Appeal No.257 Bhima vs. Teja and others. Settlement Officer of Consolidation consolidated all the four appeals as well as decided the same vide order dated 09.01.1985 by which appeal No.47, 50 and 251 were fully allowed and appeal No.257 was allowed in part. Appeal No.47 filed by respondent No.3 Nathia, was allowed, by which chak of the petitioner has been affected allotting chak to the petitioner on plot No.117, 186 taking out the plot No.177 and 176 from chak of the petitioner. Against the order of Settlement Officer of Consolidation dated 09.01.1985 six revisions were filed but petitioner has not filed any revision as he was satisfied from allotment as his number of chak remained one even at the Settlement Officer Consolidation stage. Respondent No.2/Prakash Chandra has filed two revisions being revision No.1025, 1026 and respondent No.3 Nathia has filed revision No.1032. Deputy Director of Consolidation consolidated all six revisions as mentioned above and decided the same vide order dated 19.08.1985 allowing all the six revisions by which petitioner's chak has been disturbed taking out area from plot No.221, 177, 217 and allotting him chak on plot No.213, 204, 205, 202 and 203 hence this writ petition for the following relief; "(i) quashing the order of Assistant Director of Consolidation dated 19.08.1985 (Annexure No.IV). (ii) Remanding the case for a fresh decision in accordance with law." 3. This Court has entertained the matter on 15.10.1985. (ii) Remanding the case for a fresh decision in accordance with law." 3. This Court has entertained the matter on 15.10.1985. Learned counsel for respondent Nos.2 and 3 have put in appearance before the Court on 15.10.1985 accordingly, this Court has granted time to learned counsel for respondent Nos.2 and 3 to file counter affidavit as well as stayed the operation of the impugned revisional Court dated 19.08.1985 passed against the petitioner. 4. No Counter affidavit has been filed on behalf of respondent nos.2 and 3 from 1985 upto 2023 and interim order granted by this Court on 15.10.1985 was remained in operation till the date of dismissal of the writ petition as infructuous. 5. This Court vide separate order dated 04.12.2024 has restored the writ petition on its original number. 6. Learned counsel for the petitioner submitted that petitioner is original tenure holder of plot Nos.221, accordingly, Consolidation Officer has allotted single chak to petitioner on his original plot No.221 etc. He further submitted that against the order of Consolidation Officer respondent No.3 Nathia has filed appeal but no appeal was filed by respondent No.2 (Prakash Chandra). He further submitted that in appeal, chak of the petitioner has been partly affected allotting him chak on plot No.217, 186, 186 taking out the plot No.177 and 176, but petitioner was satisfied from allotment made by Settlement Officer of Consolidation. He next submitted that against the order of Settlement Officer of Consolidation dated 09.01.1985 six revisions were filed but petitioner has not filed any revision as he was satisfied from appellate order. He further submitted that revision was filed by respondent Nos.2 and 3 along with three others and in the revisional exercises of jurisdiction, the petitioner has been deprived from chak on his original plot No.221 along with others without considering the case of the petitioner in the light of the provision contained under Section 19 of U.P.C.H. Act. He further submitted that revisional order dated 19.08.1985 should be set aside and the order of Settlement officer Consolidation should be maintained. 7. On the other hand, Mr. M.D. Mishra, learned counsel for the respondent No.2 submitted that allotment has been made to all the tenure holder including petitioner and contesting respondent Nos. 2 and 3 considering the provision of Section 19 of U.P.C.H. Act, as such no interference is required against the impugned revisional order. 7. On the other hand, Mr. M.D. Mishra, learned counsel for the respondent No.2 submitted that allotment has been made to all the tenure holder including petitioner and contesting respondent Nos. 2 and 3 considering the provision of Section 19 of U.P.C.H. Act, as such no interference is required against the impugned revisional order. He further submitted that petitioner has not been completely deprived from allotment of chak on his original plot No.221 as such argument advanced by learned counsel for the petitioner cannot be entrained. He further submitted that as far as possible the allotment has been to the parties on their original plot according to their share as such no further interference is required against the impugned revisional order. 8. I have considered the argument advanced by learned counsel for the parties and perused the record. 9. There is no dispute about the fact that in the allotment of chak proceeding petitioner was allotted chak by Consolidation Officer which remained one even at appellate stage. There is also no dispute about the fact that at revisional stage, petitioner's chak has been disturbed depriving him from certain area of plot no.221. 10. It is very material to mention that Deputy Director of Consolidation has not properly considered the comparative hardship of the petitioner while disturbing his chak at revisional stage. 11. This Court has held from time to time that comparative hardship of the parties are to be considered by Deputy Director of Consolidation while exercising jurisdiction under Section 48 of U.P.C.H. Act in respect to allotment of chak proceeding while disturbing the chak of the tenure holder. 12. In the instant matter, the impugned order dated 19.08.1985 passed by Assistant Director of Consolidation in respect to petitioner was stayed by this Court in the year 1985 and no counter affidavit has been filed for the last 39 years but during pendency of restoration proceeding counter affidavit has been field on behalf of respondent no.2 only as such in place of keeping this writ petition pending before this Court it will be appropriate to remand the matter before revisional court where everybody will be heard by revisional court after issuing notice to the tenure holders who will be affected by the order in any manner including legal heirs of deceased-respondent no.3. 13. 13. Considering the entire facts and circumstances of the case impugned revisional order dated 19.08.1985 passed by respondent No.1 is hereby set aside. 14. The writ petition is allowed in part and matter is remitted back before respondent no.1 or any other officer exercising revisional jurisdiction to register all the revision on their original number and decide the same afresh matter after issuing notices to the parties expeditiously preferably within a period of three months from the date of production of certified copy of this order before him. Revisional Court shall decide the matter considering the comparative hardship of all the parties in the light of provisions contained under Section 19 of the U.P.C.H. Act. It is further directed that till the disposal of revision, as mentioned above, parties shall maintain status quo with respect to the nature and possession of the plot in dispute.