Smt. Mithni vs Deputy Director Of ...
2021 Latest Caselaw 9212 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- CONSOLIDATION No. - 515 of 2012
 

 
Petitioner :- Smt. Mithni
 
Respondent :- Deputy Director Of Consolidation, Sitapur Camp Kheri & Ors.
 
Counsel for Petitioner :- Umesh Chandra Vishwakarma
 
Counsel for Respondent :- C.S.C.,K.S. Rastogi
 

 
Hon'ble Manish Mathur,J.

Heard learned counsel for petitioner, learned State Counsel for opposite parties 1 and 2 and Mr. K.S. Rastogi learned counsel for opposite party No.3.

Petition has been filed against order dated 2nd March, 2009 passed by Deputy Director of Consolidation and the order dated 6th February, 2007 passed by the Settlement Officer, Consolidation whereby the appeal filed by opposite party No.3 before the Settlement Officer, Consolidation was allowed and claim of the opposite party No.3 has not found favour.

Learned counsel for petitioner has submitted that the original holding of the petitioner is at gata No. 610/0.036, 711/0.202, 713/0.206, 717/0.034, 736/0.136 whereas the original holding of opposite party No.3 is at gata No. 200/9/0.093, 610/0.356, 714/0.063, 715/0.081, 788/0.110.

It is submitted that opposite party No.3 filed objection before the Consolidation Officer which was rejected on 27th September, 2006 whereafter appeal was filed before the Settlement Officer, Consolidation which has been allowed and revision thereagainst has been rejected. It is submitted that the appeal of the opposite party No.3 was allowed ex parte and the petitioner's holdings were changed without giving any opportunity of hearing to the petitioner due to which the revision had been filed.

It is submitted that the petitioner has been allotted holding over plot No. 610 which was the smallest of the original holdings of the petitioner. It is further submitted that the change in land holdings of the petitioner would amount to a change of more than 25% from the original holdings and as such the impugned orders are against the provisions of Section 19 of the Consolidation of Holdings Act, 1953. It has also been submitted that the orders passed by the court below are unreasoned and non speaking. It is also submitted that opposite party No.3 was required to be settled over plot No. 610 which was his largest holding.

Learned counsel appearing on behalf of the opposite party No.3 has refuted the submissions advanced by learned counsel for petitioner with the submission that by means of the impugned orders, both the parties have been allocated land upon their original holdings. It is submitted that the Consolidation Officer had erred in allotting plot No. 610 to the opposite party No.3 on the premise that it was his original holding completely ignoring the fact that the answering opposite party had already sold his share over the plot No. 610 which therefore no longer remained the original holding. It has been submitted that even otherwise by means of the impugned orders, both the parties have been allocated land over their original holdings which is in conformity with Section 19 of the Act. It has been further submitted that the allocation of few plots is very well within limit of 25% prescribed under the Act and thereforee the orders impugned do not warrant any interference. Both the parties have cited judgments to buttress their submissions.

Upon consideration of material on record and submissions advanced by learned counsel for parties, it is apparent that the petitioner had his original holdings at Gata No. 610, 711, 713, 717 and 736 having a total an area of 0.608 Hectares. By means of the impugned orders, the petitioner has now been allocated land over plot Nos. 711, 713, 716, 735 and 610. It is thus apparent that petitioner has been allocated land over his original holdings including plot No. 610. The submission of learned counsel for petitioner that he had smallest holding in plot No. 610 does not hold good ground in view of the fact that the said plot comprised a part of his original holding. The largest portion of the petitioner's holding was over plot No.713 having an area of 0.209 Hectares which has been allocated to him.

So far as second ground raised by learned counsel for petitioner is concerned pertaining to plot No. 610, it is apparent from the order passed by the Settlement Officer, Consolidation that the opposite party No.3 had already sold his portion of the plot over gata No. 610 prior to the order passed by the Consolidation Officer and therefore the said plot could not remain as the original holding of the opposite party No.3. It is thus clear that the plot No. 610 once sold by the opposite party No.3 was erroneously allocated by the Consolidation officer to the opposite party No.3 taking it to be a part of his original holding.

So far as submission of learned counsel for petitioner is concerned regarding allocation of land deviating from 25% of original holding as indicated in Section 19 of the Act is concerned, it is apparent that the original holding of the petitioner was of 0.0608 Hectars out of which 0.202 Hectars have been removed while giving 0.173 Hectars to the petitioner. Upon a simple calculation, it is apparent that the deviation is only of 20% and does not exceed 25% as prohibited in proviso to Section 19(1)(b) of the Act. Although the said ground has not been taken by the petitioner in the memorandum of petition but the same is being adverted to since it pertains to mixed question of fact and law.

Learned counsel for petitioner has laid much emphasis on the fact that he was not a party to the proceedings before the Settlement Officer, Consolidation and therefore the exchange in accordance with the said order was required to be made between the parties to the proceedings and not with regard to the petitioner. It has also been submitted that the orders passed is completely non speaking in nature.

With regard to aforesaid submissions, although it does appear that the petitioner was not a party to the proceedings before the Settlement Officer, Consolidation but once revision had been filed and the matter was heard by the Deputy Director of Consolidation exercising his powers under Section 48(3) of the Act, the petitioner was heard after perusing the relevant records whereafter the Deputy Director of Consolidation has passed the order particularly with regard to the fact that the petitioner has been allocated land which is on his original holdings. In such a circumstance when the revision of petitioner has been heard on merits after looking into the record, the objection regarding petitioner not being heard before the Settlement Officer, Consolidation does not hold good ground.

Learned counsel for petitioner has relied upon the judgments rendered by this Court in the case of Suneel Kumar versus Deputy Director of Consolidation and others reported in 2013 LCD 193, Ramdaras versus Deputy Director of Consolidation reported in 2010 (111) R.D. 609 and Raj Ajore versus Deputy Director of Consolidation reported in 2012 LCD 1269 to buttress his submissions while learned counsel for opposite party No.3 has relied upon the judgment of Shyam Behari versus Deputy Director of Consolidation and others reported in 2004 LCD page 736.

So far as judgments cited by learned counsel for petitioner are concerned, in the case of Ramdaras and others versus Deputy Director of Consolidation (supra), it is apparent that opportunity of hearing was not given at the stage of Deputy Director of Consolidation and not prior to that. The said case would be inapplicable since in the present matter, the lack of opportunity of hearing has been alleged at the stage of Settlement Officer, Consolidation whereafter the Deputy Director of Consolidation has heard the matter on merits hearing the petitioner and thereafter has passed the order. With regard to judgment passed in the case of Ram Ajore (supra) again the matter pertained to the petitioner not being heard at the stage of Deputy Director of Consolidation where he was not a party to the proceedings. The said judgment for the same reason is also inapplicable.

On the contrary in the case of Sunil Kumar (supra), this court following another judgment of this court has held that while exercising the power of revision under Section 48 of the Act, the Deputy Director of Consolidation possesses powers to give his own findings by assigning reasons contrary to the findings given by the court below. In the considered opinion of this Court, the said judgment would instead of helping the petitioner lays down a contrary law and in fact would be applicable in the present case since the Deputy Director of Consolidation has exercised power under Section 48 of the Act and has passed his orders independently after hearing the petitioner.

The submissions with regard to the impugned orders being non speaking in nature are also not good ground since a bare perusal of the orders impugned make it apparent that orders have been passed after considering the submissions advanced by the parties and looking into the record and specifically adverting to the grounds raised by the authority.

In the case of Shyam Behari versus Deputy Director of Consolidation reported in 2004 LCD 736 it has been held as follows:-

"9. Therefore, as far as possible all the conditions which are prescribed under the aforesaid section has to be adhered to by the Consolidation Authorities. But the intention appears to be that the allotment in respect of chaks has to be made looking to the interest of all the villagers at large. Interest of one individual is not only to be taken into account. A particular chak holder cannot claim that all the conditions that are laid down under the consolidation scheme should be satisfied in so far as he alone is concerned, as the process of compulsory consolidation is very difficult and complicated and there is no straight road back towards consolidation. The conditions by the consolidation scheme are to be fulfilled "as far as possible", the phrase which really means that the principles are to be observed unless it is not possible to follow them in particular circumstances of a case.

10. In the case at hand the consolidation authorities have not deviated at all from the principles prescribed under Section 19 of the Act. In view of the fact that the claim of the petitioner having already been allowed by the Consolidation Officer and he having been allotted two chaks on his original holdings, there arises absolutely no ground for interference in the orders passed by the Consolidation Authorities."

The said judgment is specifically applicable upon the present situation where the orders impugned do not appear to have deviated from the conditions indicated in Section 19 of the Act.

In view of aforesaid, the petition being devoid of merits, is dismissed. Parties to bear their own costs.

Order Date :- 2.8.2021

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