Ramayan And 5 Others vs Deputy Director Of ...
2017 Latest Caselaw 7207 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 33
 
										
 
Case :- WRIT - B No. - 54952 of 2016
 

 
Petitioner :- Ramayan And 5 Others
 
Respondent :- Deputy Director Of Consolidation, Azamgarh And 4 Others
 
Counsel for Petitioner :- A.P. Singh
 
Counsel for Respondent :- C.S.C., Priya Ranjan Rai
 

 
Hon'ble Manoj Misra,J.

Heard learned counsel for the petitioners; the learned Standing Counsel for the respondents 1 and 2; and Sri C.K. Rai for the respondents 3 to 5.

With the consent of the learned counsel for the parties, this petition is being finally decided at the admission stage itself.

Briefly stated the facts giving rise to this petition are that the predecessor-in-interest of the respondents 3 to 5 had obtained an agreement for sale from the predecessor-in-interest of the petitioners for purchase of certain plots. To enforce the said agreement, a civil suit was instituted, which was decreed. Pursuant to the decree, civil court executed sale-deed of plot nos. 1630/0.800; 1776/0.406; and 1776/2/0.172 having a total area of 1.377 acres. In the meantime, as the village concerned was under consolidation operations, the plots concerned were valued and were allotted to some other party, who is not before this Court. However, the valuation of those plots was provided to the petitioners, being successor-in-interest of the judgment debtor. To ensure that the purchaser of those plots gets a chak equivalent to the valuation of those plots, a report was prepared which was accepted by the Consolidation Officer, which has been affirmed by the Deputy Director of Consolidation by the impugned order dated 06th October, 2016 passed in Reference No. 60.

The petitioners have challenged the order passed by the Deputy Director of Consolidation on the ground that before accepting the report/ reference, the petitioners were not heard and since admittedly the plot nos. 1630; 1776; and 1776/2 were not in the chak allotted to the petitioners though their valuation was there, the valuation of those plots could be taken from such plots which the petitioners opt to release from the chak allotted to them and not from such plots the Consolidation Authorities or the decree-holder chooses. To support the above submission, the learned counsel for the petitioners has invited attention of the court to the provisions of section 30 of the U.P. Consolidation of Holdings Act, 1953 (in short the C.H. Act), which provide that with effect from the date on which the chak-holder enters, or is deemed to have entered to the possession of the chak allotted to him, the tenure-holder shall have in his chak, the same rights, title, interest and liabilities as he had in the original holdings. It has been submitted that the liability to surrender the valuation of the plots, which came to be transferred in favour of the contesting respondents, was in respect of the valuation of those plots but not in respect of any specific plot. Because, admittedly, those plots did not come to the chak of the petitioners and therefore the reference report ought to have been prepared in such a manner that it reflected the choice of the petitioners in respect of the plots which they chose to hand over to the purchaser. It has been submitted that once the original plots had changed hands and only its valuation was reflected in the chak of the petitioners, the purchaser of those plots did not have right to chase any particular plot. Therefore, the Deputy Director of Consolidation, before accepting the reference, should have given opportunity to the petitioners to express their option in respect of the plots which they wanted to surrender to the other side from their chak. It has thus been prayed that the matter be remanded back for a fresh decision so as to enable the petitioners to exercise their choice.

Per Contra, the learned counsel for the contesting respondents 3 to 5 has submitted that no doubt the plots which were subject matter of sale did not come to the chak of the petitioners but the answering respondents had a right to ensure that the plots which they get in lieu of those plots which they had purchased are comparable in area and in valuation to the plots purchased by them. It has also been submitted that there may be certain plots over which there looms threat of litigation, such as double allotment, etc. therefore, an unqualified right of option should not be provided to the petitioners in respect of the plots which they wish to surrender in favour of the answering respondents.

I have considered the rival submissions and have perused the record.

It is not in dispute that the plots which were acquired by the contesting respondents, pursuant to execution of civil court decree, are not in possession of the petitioners and they were also not allotted to the petitioners though their valuation is with the petitioners. It has also come in the order passed by the Deputy Director of Consolidation that those plots are in chak of various other persons and it is not possible to provide those plots to the answering respondents because a large number of chak-holders would get affected. Those chak-holders who have received possession of those plots are not before this Court. Accordingly, the only issue that remains to be examined is as to what principle should be applied for selecting the plots to be allotted in the chak of the answering respondents to make good the valuation of the plots which they had acquired under civil court's decree.

Section 30 of the C.H. Act, 1953 throws some light on how such situation can be tackled. Clause (b) of section 30 provides that the tenure-holder who enters into possession of a chak allotted to him in accordance with the provisions of the Act, would have same right, title, interest and liabilities as he had in the original holdings. Admittedly, the petitioners as successor of the judgment-debtor have received, in the chaks allotted to them, the valuation of the plots acquired by the answering respondents pursuant to civil court decree. Therefore, the petitioners cannot escape from their liability to surrender the valuation of those plots.

However, what remains to be examined is as to whether, in the given scenario, the petitioners would have a right to choose the plots from which the valuation could be taken and provided to the contesting respondents.

Had the plots, which were subject matter of sale, been in the chak of the petitioners, the answer to the above question would have been easy. The contesting respondents could then have had a right to chase those plots. But, that is not the situation here.

In the instant case, the original plots have gone to some other party and the petitioners are in possession of completely different plots provided to them by consolidation authorities in exercise of their powers under the C.H. Act, over which the petitioners have no control. Therefore, under the circumstances, the consolidation courts would have to balance the equities between the parties in such a manner that the recipient of the valuation of those plots which had been transferred, such as the petitioners herein, is not forced to surrender those plots which he wishes to retain and, likewise, the transferee of the valuation, such as the answering respondents herein, is not forced to accept such plots which are under litigation or threat of litigation thereby jeopardizing his rights. Accordingly, this court is of the view that the petitioners, under the circumstances, would have a right to submit an option in respect of the plots which they choose to retain or choose to surrender, subject, of course, to the broad principles of consolidation enshrined in section 19 of the C.H. Act. However, such option must be a bona fide option. Whether the option is bona fide or not can always be determined on the facts of each case after giving opportunity of hearing to the parties concerned.

In view of the above, this Court considers it appropriate to remit the matter back to the Deputy Director of Consolidation, Azamgarh to examine all aspects and take an option from the petitioners in respect of the plots which they wish to handover from the chak(s) already allotted to them. If the plots for which an option is exercised by the petitioners are free from any litigation or doubt, and the plots are contiguous to each other so that the fundamental principle of consolidation is not violated, and the option appears to be bona fide, then the option exercised by the petitioners shall be accepted and allotment shall be made accordingly to ensure that the contesting respondents get their chak as per the valuation of the plots conveyed to them under the sale-deed executed by the civil court. However, if the plots opted to be given to the contesting respondents are either under litigation or the offer is not bona fide, then the Deputy Director of Consolidation can examine those aspects and after recording its reasons proceed to reject the option and pass such order as it may deem appropriate, in accordance with law, keeping in mind the fundamental principles of consolidation.

Accordingly, this petition is allowed. The order dated 06th October, 2016 passed by the Deputy Director of Consolidation, Azamgarh in Reference No. 60 is hereby set aside. The Deputy Director of Consolidation, Azamgarh shall restore the reference proceeding to its original number and shall proceed to pass a fresh order in the light of the observations made herein above. The Deputy Director of Consolidation shall ensure that the aforesaid reference proceeding is concluded, expeditiously, preferably, within a period of three months from the date of production of certified copy of this order after giving opportunity of hearing to the parties concerned.

Order Date :- 22.11.2017

Sunil Kr Tiwari