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2024 DIGILAW 494 (ALL)

Reshma Bi v. State of U. P.

2024-02-15

DINESH PATHAK

body2024
JUDGMENT : 1. Heard learned counsel for the petitioner, learned standing counsel for the State respondents, learned counsel for the private respondent no.5 and perused the record. 2. In view of the peculiar facts and circumstances of the present case, and order proposed to be passed hereinunder, this Court proceeds to decide the present matter finally at admission stage itself without calling for the respective affidavits of the parties, with the consent of the learned counsel for the parties present. 3. Petitioner is aggrieved with the reference order dated 29.9.2023 passed by the Deputy Director of Consolidation (in brevity 'DDC') in Case No.0170 of 2023 under Section 48 (3) of U.P. Consolidation of Holdings Act, 1953 (in brevity 'UPCH Act'), by which chak no.273 belongs to the petitioner has been disturbed. 4. Facts culled out from the record are that in provisional Consolidation Scheme present petitioner had been proposed chak No. 273, however, respondent No. 5 had been proposed chak No.80. At the time of preparation of final consolidation record, owing to some discrepancy, area having valuation of Rs.178.51 paisa has been left to be recorded in the chak of the respondent no.5. Meaning thereby area having valuation of Rs.178.51 paisa was short in his chak. Having aggrieved with the lesser valuation of Rs.178.51 paisa in his chak, respondent no.5 has moved miscellaneous application to complete the aforesaid valuation in his chak. After chequered history of litigation between the parties upto the Hon'ble High Court, finally Settlement Officer of Consolidation (in brevity 'SOC') has referred the matter, vide order dated 30.8.2023, before DDC to allow the reference, which has been approved/accepted by DDC vide its order impugned dated 29.9.2023. Consequent to the reference order passed by DDC, chak of the petitioner has been affected to the extent of the valuation of Rs.96.11 paisa which has been shifted/allocated in the chak of the respondent no.5. Having been aggrieved with the aforesaid change in his chak, the instant petition has been filed by the petitioner. 5. Consequent to the reference order passed by DDC, chak of the petitioner has been affected to the extent of the valuation of Rs.96.11 paisa which has been shifted/allocated in the chak of the respondent no.5. Having been aggrieved with the aforesaid change in his chak, the instant petition has been filed by the petitioner. 5. Assailing the order passed by DDC, learned counsel for the petitioner has submitted two-fold submissions; first, regarding maintainability of the application moved by the contesting respondent no.5 under Section 42 A of U.P. Consolidation of Holdings Act, 1953 (in brevity 'UPCH Act'), that too, after after de-notification under Section 52 of UPCH Act and second submission has been advanced with respect to the jurisdiction of the consolidation courts to make any modification in the chak of the petitioner, while exercising their power in reference proceedings. It is submitted that the Consolidation Authorities have got no jurisdiction to amend the chak of any tenure holder which has attained finality before completion of the consolidation operation, thus, the instant writ petition may be allowed and the order impugned passed by DDC, being illegal, unwarranted under the law and cryptic, be quashed. 6. Per contra, learned counsel for the respondent no.5 has contended that respondent no.5 has, in fact, moved misc. application to correct the area of his chak which is short in the final consolidation record, therefore, same can not be treated to be filed under Section 42 A of UPCH Act. It is next contended that while passing the reference order, the DDC has considered the version of the present petitioner as well and, accordingly, shifted the chak of the petitioner on the partial area of plot no.286/1 Mi which was initially his original holding. It is further contended that, in fact, no grievance caused to the petitioner who has been compensated with the equal valuation of the area which has been taken out from his chak. It is next contended that grievance of the petitioner is imaginary, therefore, instant writ petition may be dismissed being misconceived and devoid of merits. 7. Learned standing counsel, on the basis of the instructions dated 02.01.2024 duly signed by the SOC, which is taken on record, contended that Consolidation Authorities have got right to correct the error in the consolidation record, therefore, there is no illegality in rectifying the area of chak No. 80 belongs to respondent no. 5. 7. Learned standing counsel, on the basis of the instructions dated 02.01.2024 duly signed by the SOC, which is taken on record, contended that Consolidation Authorities have got right to correct the error in the consolidation record, therefore, there is no illegality in rectifying the area of chak No. 80 belongs to respondent no. 5. It is further contended that incorrect entry in land record was rectified under Section 48(3) of UPCH Act, therefore, there is no error or illegality in the reference order passed by the DDC. 8. Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record, it is manifested that owing to clerical error in the final consolidation record area having valuation of Rs.178.51 paisa was left to be included/recorded in the chak of the respondent no.5. To rectify such error, he has moved a misc. application. As per case of the petitioner, aforesaid misc. application was moved under Section 42 A of UPCH Act after the denotification of village under Section 52 of UPCH Act, therefore, the said application filed on behalf of respondent No. 5 was not maintainable in the eye of law. Learned counsel for contesting respondent no.5 as well as the learned standing counsel have refuted the filing of said application for correction of record under Section 42 A of the UPCH Act and contended that misc. application moved on behalf of the respondent no.5 has been entertained under Section 48(3) of UPCH Act and, accordingly, error in the consolidation record is rectified by way of reference. Perusal of record, prima faice, it appears that reference was finally decided by DDC in exercise of his power under Section 48(3) of UPCH Act. There is nothing on the record to demonstrate that final order has been passed by Consolidation Officer or SOC under Section 42-A of UPCH Act. 9. Second submission advanced by learned counsel for the petitioner, with regard to the jurisdiction of the consolidation courts to amend the chak allotted to the parties while deciding the reference proceedings, is of paramount consideration in the instant matter. The record evinces that to complete the valuation in chak of the respondent no.5, which is short by Rs.178.51 paisa, reference has been made by the Consolidation Officer which was forwarded by the SOC, vide order dated 30.8.2023. The record evinces that to complete the valuation in chak of the respondent no.5, which is short by Rs.178.51 paisa, reference has been made by the Consolidation Officer which was forwarded by the SOC, vide order dated 30.8.2023. The DDC, after affording opportunity of hearing to the parties concerned, has approved the aforesaid reference in exercise of its power under Section 48(3) of UPCH Act with an observation that short area having valuation of Rs.178.51 paisa in the chak of respondent no.5 shall be completed with equal valuation of area from the bachat land and the chak no.273 belongs to the petitioner. Accordingly, the petitioner has been given area having valuation of Rs.82.40 paisa (19.18 + 12.68+21.14+19.40) from the bachat land and the area having valuation of Rs.96.11 paisa from chak no.273 total area having valuation of Rs.178.51 paisa (82-40 + 96-11). Thus, it is evident that area having valuation of Rs.96.11 paisa has been shifted from the chak of the petitioner and allotted in the chak of the respondent no.5. Consequently, in lieu thereof, present petitioner has been allotted chak over plot no.286/1Mi of equal valuation i.e. Rs.96.11 paisa. The learned DDC has observed that plot no.286/1 Mi is the original holding of the present petitioner, whereon his guava trees and boundary wall exists. However, same has been earmarked as bachat land, therefore, allotting chak over there will not cause prejudice to the petitioner. It is evident that plot no.286/1 Mi which has been allotted to the petitioner is in fact recorded as a bachat land, therefore, chak of petitioner, for the valuation taken out, has been proposed over the bachat land. 10. In my considered opinion, in given circumstances of the present case, while deciding the reference proceedings under Section 48(3) of UPCH Act, the DDC has exceeded its jurisdiction to amend the chak of the petitioner which has already been finalised before the completion of the consolidation operation, during the chak allotment proceedings under the UPCH Act. There is no provision under the law to change/amend the chak of any chak holder except the provisions as enunciated under Sections 20 and 21 of UPCH Act. Any change in the chak of the chak holder without fulfilling legal formalities as required under the law would amount extra-judicial work which is unsustainable in the eye of law. There is no provision under the law to change/amend the chak of any chak holder except the provisions as enunciated under Sections 20 and 21 of UPCH Act. Any change in the chak of the chak holder without fulfilling legal formalities as required under the law would amount extra-judicial work which is unsustainable in the eye of law. The chak allotment proceedings under Sections 20 and 21 of the UPCH Act amounts judicial proceedings as enunciated under Section 40 of the UPCH Act. The preparation of provisional Consolidation scheme under Section 19-A of UPCH Act, as per conditions enunciated under Section 19 of UPCH Act, confirmed under Section 23 of UPCH Act after chak allotment proceedings under Sections 20 and 21 of the UPCH Act and, accordingly, allotment orders are being passed. Once the provisional consolidation scheme confirmed and parties came into the possession under Section 28 of UPCH Act, and final consolidation scheme came into force by promulgation of notification under Section 24 of UPCH Act there is no justification to make any change in the chak of any chak holder which has attained finality. There is no finding returned by the consolidation courts that the present petitioner was allotted excess area than that of the original area held by him. Therefore, there was no occasion to alter/amend the chak of the petitioner. The chak finalised before notification under Section 24 of the UPCH Act and denotification under Section 52 of the UPCH Act can not be altered/modified at subsequent stage merely in order to compensate the other chak holder whose chak has been found short of area/valuation for which he was entitled. 11. In the given circumstances of the present case it is not disputed that chak of the petitioner was short of area having valuation of Rs.178.51 paisa. However, said short valuation could be completed from the bachat land. Disturbing/amending the chak of the petitioner which had attained finality before the denotification under Section 52 of UPCH Act is unsustainable in the eye of law. However, said short valuation could be completed from the bachat land. Disturbing/amending the chak of the petitioner which had attained finality before the denotification under Section 52 of UPCH Act is unsustainable in the eye of law. The Consolidation Authorities are not expected to amend/alter the area/valuation of any chak at later stage, that too, after denotification under Section 52 of UPCH Act except in the eventuality that excess area/valuation has illegally been allotted in that chak or composition of said chak has incorrectly been endorsed/mentioned in final consolidation record or parties concerned are agreed upon to such amendment/alteration, or any chak is required to be amended/altered in compliance/pursuance of any provision under the UPCH Act/Rules or order passed by court competent. 12. In this conspectus, as above, the order passed by DDC under Section 48(3) of UPCH Act, proposing amendment in the chak of the petitioner, is liable to be quashed and the grievance of the respondent no.5, to complete the area of his chak no.80 having valuation of Rs.178.51 paisa, could be ventilated by adjusting his chak over the bachat land or any other gaon sabha land. As such the instant writ petition succeeds and is allowed in part. The order dated 29.9.2023 passed by the DDC in revision no.0170 of 2023 under Section 48(3) of UPCH Act (Kallan and others Vs. State of U.P. and others) is hereby partly quashed, so far as it relates to the valuation of Rs. 96.11 paise of chak No. 273, on the following conditions: (i) Revision filed on behalf of Kallan (respondent no.5) is restored to its original number and parties are relegated before the DDC, who shall decide the revision afresh after affording proper opportunity of hearing to the parties concerned. (ii) The DDC shall make endeavour to complete the short area having valuation of Rs.178.51 paisa in the chak No. 80 of the respondent No. 5 from the bachat land or other gaon sabha land/public land, as may be justified, having area of equal valuation, as far as possible, nearer/in the vicinity to his remaining chak. (ii) The DDC shall make endeavour to complete the short area having valuation of Rs.178.51 paisa in the chak No. 80 of the respondent No. 5 from the bachat land or other gaon sabha land/public land, as may be justified, having area of equal valuation, as far as possible, nearer/in the vicinity to his remaining chak. It is made clear that for better compliance of this condition No. 2, learned DDC would revisit his reference order dated 29.9.2023, partly quash by the order of date, and pass fresh order so as to do complete justice in favour of respondent No. 5, who is running from pillar to post since last several years. (iv) Having completed the short area having valuation of Rs.178.51 paisa in the chak of respondent No. 5, learned DDC shall make all sincere endeavour to demarcate the said allotted land in chak No. 80 and deliver the possession thereof to respondent no.5 after removing obstruction/hindrance, if any, over there. He can take police protection/help as well for the purpose, if required. (v) The DDC shall make a sincere endeavour to decide the revision, in accordance with law, expeditiously, preferably, within a period of three months from the date of production of a certified copy of this order and, thereafter, ensure the demarcation and delivery of possession thereof as directed above within a period of two months.