Allahabad High Court
Ram Singh And 8 Others vs Chief Revenue Officer/D.D.C. ... on 29 October, 2015
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 6
Case :- WRIT - B No. - 58072 of 2015
Petitioner :- Ram Singh And 8 Others
Respondent :- Chief Revenue Officer/D.D.C. Basti And 5 Others
Counsel for Petitioner :- Dinesh Pathak,Shiv Ram Dubey
Counsel for Respondent :- C.S.C.,B.N. Pandey
Hon'ble Anjani Kumar Mishra,J.
Heard Sri Dinesh Pathak, learned counsel for the petitioners and Sri B.N. Pandey, learned counsel for the respondents 2 to 6.
Counter affidavit on behalf of respondent nos. 2 to 6 filed in court today, is taken on record.
Sri Dinesh Pathak, learned counsel for the petitioners submits that since the material averments contained in the writ petition as regards his grievances on factual aspects having not been specifically controverted in the counter affidavit, he does not propose to file any rejoinder affidavit.
I therefore, after hearing learned counsel for the parties am deciding the matter finally.
The contention of learned counsel for the petitioner is that he has been allotted four chaks by the impugned order and further that on account of the modification made by the impugned order he has no access to the chak road as the chak proposed is surrounded on all sides by chaks of others.
Learned counsel for the respondents has relied upon the second proviso to Section 19 to submit that even four chaks can be allotted. He has further placed reliance upon the averments contained in paragraph 5 of the counter affidavit. He has lastly submitted that by the impugned order substantial justice has been done between the parties and the impugned order therefore calls for no interference.
I have considered the submission made by learned counsel for the parties and have perused the record.
In paragraph 14 of the writ petition, it has been averred that on account of modification made by the impugned order, the access road granted by the Settlement Officer Consolidation to the petitioners to approach their chaks on plot no. 549/2, has been abolished while in paragraph 15, it has been averred that on account of this modification the petitioner is unable to approach this chak which is surrounded on all sides by chaks of other parties. In paragraph 17 of the writ petition, it has been averred that the petitioner has been allotted four chaks which is not permissible in view of the provisions contained in Section 19 (1) (e) of the Act and the proviso thereto. No reason has been assigned as to why four chaks have been given to the petitioner.
Reply to these paragraphs is to be found in paragraphs 11, 12 and 13 of the counter affidavit. In paragraph 11 of the counter affidavit, it has been stated that the order of the Chief Revenue Officer has been legally passed. In paragraph 12, it has been stated that the contents of paragraph 15 of the writ petition need no comment and that the Chief Revenue Officer had passed the order after hearing both the parties. In paragraph 13 of the counter affidavit, it has been stated that the contents of paragraph 17 of the writ petition are not admitted and that the Chief Revenue Officer has passed a reasoned order dated 17.08.2015.
From the averments noticed above, it is clear that there is only a bald denial of the allegations made by the petitioner in paragraphs 14, 15 and 17 of the writ petition and, therefore, these averments stand admitted on record. This, in my considered opinion, is enough to establish that the petitioner has suffered irreparable injury by the order, impugned. The same is therefore liable to be set aside.
The next submission of learned counsel for the petitioner that he has been illegally allotted four chaks, is also to be considered. As already noticed hereinabove, learned counsel for the petitioner has additionally submitted that no reason has been assigned in the impugned order as to why four chaks were being allotted to the petitioner.
Learned counsel for the respondents on the other hand has relied upon the second proviso of the Section 19 to support the impugned order.
The aforesaid two provisos are extracted below:-
"Provided that no tenure-holder may be allotted more chaks than three, except with the approval in writing of the Deputy Director of Consolidation:
Provided further that no consolidation made shall be invalid for the reason merely that the number of chaks allotted to a tenure-holder exceeds three;"
The two provisos have to be read harmoniously. The first proviso provides that no tenure holder may be allotted more than three chaks. In case a tenure holder is to be allotted more than three chaks, this can be done only with the previous approval of the Deputy Director of Consolidation in writing. The second proviso, in my considered opinion must necessarily be held to mean that in case a tenure holder is allotted more than three chaks with the approval of the Deputy Director of Consolidation, the same would not be invalid. Providing any other explanation to the second proviso would make the first proviso redundant.
This interpretation may be further exemplified by hypothetical situation. It is possible that there might be a very large tenure holder in the unit and it might therefore, on account of his very large holding, be impossible to allot him only three chaks. The second proviso, in my considered opinion, deals with such a contingency. It therefore necessarily follows that normally a tenure holder is not to be allotted more than three chaks. This is the basic object of the Act itself. Cogent reasons are to be given, if the same is impossible. In case reasons are given, the allotment proceedings would not be rendered invalid on the ground that more than three chaks have been allotted.
In view of the above discussion, this Court is constrained to hold that the reliance upon the second proviso by learned counsel for the petitioner is misplaced, inasmuch as the Deputy Director of Consolidation has not assigned any reasons why it was impossible to allot less than four chaks to the petitioner.
Accordingly, this court finds that the impugned order is illegal and contrary to provisions of the Act itself and is therefore liable to be set aside.
I therefore set aside the order dated 23.03.2015 passed by the Deputy Director of Consolidation, Basti/Chief Revenue Officer and allow the writ petition. The matter is remanded back to the Deputy Director of Consolidation for passing fresh orders in accordance with law and in the light of the observations made herein above, expeditiously, preferably within a period of four months of a certified copy of this order being produced before him.
Order Date :- 29.10.2015
Mayank
