Raj Pati vs Uppar Ziladhikari (F & R)/ D.D.C. ...
2011 Latest Caselaw 898 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 5
 

 
Case :- WRIT - B No. - 12990 of 2011
 

 
Petitioner :- Raj Pati
 
Respondent :- Uppar Ziladhikari (F & R)/ D.D.C. And Others
 
Petitioner Counsel :- Lalta Prasad,Dan Bahadur Yadav
 
Respondent Counsel :- C.S.C.,K.C. Kishan Srivastava,K.N. Singh,Mahesh Narain Singh
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Heard Sri Dan Bahadur Yadav, learned counsel the petitioner, Sri K. C. Kishan Srivastava, learned counsel for the respondent nos. 4 to 6 and learned Standing Counsel for the respondent nos. 1 and 2.

Sri M.N. Singh, learned counsel has accepted notice on behalf of respondent no.3.

The background of the case is that the Plot No. 9/2 is the original holding of the petitioner and the contesting respondents. The petitioner and the respondent nos. 4 to 6 were allotted separate Chaks being Chak No. 77 and 109.

An objection was filed by Chak holder of Plot No. 241, Ram Lakhan that his area was short. He had been allotted Plot No. 12. This application was moved in the year 1999. A report was submitted on the said application of Ram Lakhan and an adjustment was proposed by carving out the land of Plot No.5 to be adjusted in Plot No. 9 and the land of Plot No.9 in Plot No.12. Accordingly, the claim of Ram Lakhan was satisfied by the said adjustment and the Map was accordingly approved and finalized on 3th July, 1999.

After a lapse of almost four years, the respondent Daya Shanker appears to have moved an application under Section 42 A of the U.P. C.H. Act prior to the denotification of the village under Section 52 of the Consolidation of Holdings Act. This application raised a grievance that the area allotted to the respondent no.4 over Chak No. 109 was less than the recorded area and, therefore, the same should be adjusted accordingly. A report was called for which was submitted on 25.9.2003 and the same was accepted by the Consolidation Officer on 8.10.2003 bringing about an amendment in the area of the Chaks allotted to the petitioner, the Chak road as well as Canal.

The village was denotified on 25.10.2003 and Section 52 notification was issued.

The petitioner moved a restoration application on 31st December, 2003 contending that the order dated 8.10.2003 was passed ex-parte and had affected the allotment of the petitioner over Plot No. 9, therefore, the same deserves to be set aside. The restoration application filed by the petitioner was allowed by the Consolidation Officer on 3rd January, 2005 and simultaneously the order dated 8.10.2003 was also set aside.

Aggrieved by the said order dated 3.1.2005, the respondent nos. 4 and 5 filed a revision. The said revision was dismissed on 8.12.2006 by the Deputy Director of Consolidation thereby reopening the entire proceedings before the Consolidation Officer in terms of the order dated 3.1.2005. It is undisputed that the said proceedings are still pending before the Consolidation Officer in terms of the order of the Deputy Director of Consolidation himself dated 8.12.2006.

Learned counsel contends that the respondent instead of pursuing the said matter before the Consolidation Officer moved a fresh application for making a reference on 10th March, 2008 and in this application a new claim was set up by the respondent nos. 4 and 5 that the area which is short in their chaks be completed and adjusted by allotting land over Plot No. 49 which has been recorded as Bachat land together with Plot Nos. 373 and 374. This application was entertained and a reference was prepared and ultimately an order was passed by the Deputy Director of Consolidation on 19.2.2009 accepting the said reference and allotting the land to the respondents afresh in lieu of their alleged shortage that had been claimed earlier.

Against the acceptance of the reference, the petitioner filed a restoration application on the ground that she is in occupation over a part of Plot No. 49 and, therefore, the allotment in favour of the contesting respondents is erroneous. On the restoration application filed by the petitioner on 3rd October, 2009 an order was passed recalling the same and restoring the matter before the Deputy Director of Consolidation in the reference proceedings. The respondents filed a writ petition before this Court questioning the correctness of the order dated 3.1.2009 which was dismissed by the following order on 29.10.2009:-

"Heard learned counsel for the petitioners and the learned Standing Counsel as well as learned counsel for respondent no.4.

The petitioners feeling aggrieved with the allowing of the restoration application has preferred this petiiton.

The submission of the learned counsel for the petitioners is that the restoration application was not maintainable on account of the fact that the respondent no.4 was not affected in any manner and that he has moved restoration application with malicious intention.

Learned counsel for the respondent no.4, on the other hand, has stated that his house is standing on the Bachat land and reference has wrongly been approved at the behest of the petitioners and when illegality was pointed out, the revisional court recalled the ex parte order and fixed the matter for hearing. The parties are to be heard and they are entitled to adduce the evidence which they like.

The writ petition is devoid of merit and is hereby dismissed. However, the Deputy Director of Consolidation is directed to decide the case within a period of four months from the date of production of a certified copy of this order before him."

It is, therefore, evident that the order dated 3rd October, 2009 became final and the proceedings under Section 48 (3) were maintained by this Court. It is these proceedings which have now culminated in the passing of the impugned order.

Against the claim of fresh allotment over Plot Nos. 49, 373 and 374, learned counsel for the respondents points out that this claim has nothing to do with the original proceedings that were directed to be completed by the Deputy Director of Consolidation under the order dated 8.12.2006. He, therefore, submits that the impugned order has adjusted the shortage of land to the respondents over Bachat land with which the petitioner has no concern and, therefore, the present writ petition is not maintainable.

Sri Yadav, submits that the proceedings which are pending before the Consolidation Officer under the orders of Deputy Director of Consolidation are still going on and dates are being fixed therein. In the event, the said proceedings are decided in favour of the respondents then the present order under challenge would be directly affected and as such both the orders cannot be allowed to stand simultaneously.

Having heard learned counsel for the parties, it is evident that dates are being fixed in the proceedings which are pending before the Consolidation Officer pursuant to the order of the Deputy Director of Consolidation passed in Revision No. 1750. The same is being heard by the Consolidation Officer. In such circumstances the said proceedings shall be finalized within a period of six weeks from the date of presentation of a certified copy of this order.

In the event, the Consolidation Officer either accepts or rejects the claim of the respondents then it shall be open to the petitioner, if aggrieved, to assail the impugned order in accordance with law.

It appears that the respondent having not succeeded in the earlier proceedings that were pending raised a claim giving rise to the present petition. The Deputy Director Consolidation could have decided both the matters simultaneously and having entertained a fresh reference, the present dispute has been raised.

With the aforesaid observations, the writ petition is disposed of at this stage.

Order Date :- 6.4.2011

Shiraz