Rakesh Singh vs State Of U.P. Thru Collector ...
2021 Latest Caselaw 6657 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 29.01.2021
 
Delivered on 25.06.2021
 

 
A.F.R.
 

 
Case :- CONSOLIDATION No. - 22455 of 2020
 
Petitioner :- Rakesh Singh
 
Respondent :- State Of U.P. Thru Collector Sitapur & Ors.
 
Counsel for Petitioner :- Ajay Pratap Singh 'Vatsa'
 
Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey 
 

 
Hon'ble Mrs. Sangeeta Chandra,J. 

1. I have heard Shri Ajay Pratap Singh Vats for the petitioner and Shri Upendra Singh Learned Standing Counsel appearing on behalf of the State Respondents. The petitioner is aggrieved by the order passed by the Consolidation Officer dated 11.10.2019 and also the order passed by the Settlement Officer Consolidtaion dated 16.11.2019 and the rejection of his Revision by the Deputy Director, Consolidation, by order dated 08.01.2020.

2. It is the case of the petitioner that in the proposal made by the Assistant Consolidation Officer, the petitioner was given two Chaks, one over Gata number 8Min, admeasuring 1.439 ha, and the other over Gata number 138Min along with 139 Min and 141 Min, admeasuring 1.337 ha. The petitioner's Chak over Gata number 8 Min was over his original holding but it was at a distance of about 3 km from the village therefore the petitioner moved an objection before the Consolidation Officer, Biswa, praying that his chak should be carved over Gata numbers 155 and 156, which were marked as Bachat land belonging to Gaon Sabha instead of over Gata number 8 Min. The land situated in Gata number 155 in 156 was in the vicinity of his house and of the village and it would lead to facilitating cultivation in a better manner in comparison to carrying out agricultural activities over land which was situated at a distance from the village as the petitioner intended to farm vegetables which required constant attention.

3. The demand made by the petitioner for conversion of his Chak over Gata number 155 in 156 was refused by the Consolidation Officer on the ground that the petitioner already had two chaks and giving him a Chak over Gata numbers 155 and 156 would mean that he would have three Chaks in the village, and also because Gata number 155 and 156 were not part of his original holding, and therefore carving out a Chak over them for him would mean allotment of an Udaan chak.

4. It has been argued by the learned counsel for the petitioner that Bachat land being that of the Gram Sabha and there being no objections from the Gram Sabha, his request ought to have been allowed by the Consolidation Officer.

It has been further argued that the grounds taken by the Consolidation Officer for rejection of his objections are against the statutory provisions given under section 19 (1) (e) of the U.P. Consolidation of Holdings Act 1953 (hereinafter referred to as "the Act").

5. It has been submitted that a perusal of section 19 (1)e of the Act would show that the proviso to the same makes it permissible to allot three Chaks. Also, it provides for allotment of Chak at a place where the tenure holder has the largest part of his holding "as far as possible". The basic reason for providing Chak over original holding is to save the interest of the tenure holder and such tenure holder has every right to forego such a privilege. The learned counsel for the petitioner has argued that the phrase "as far as possible" only envisages convenience of the tenure holder. Also Section 19(1)(e) does not prohibit allotment of Udaan Chak or three Chaks to a tenure holder. More so, there was no objection by the Gram Sabha in whose name the Bachat land was recorded.

6. It has been submitted by the learned counsel for the petitioner that the petitioner preferred an Appeal to the Settlement Officer Consolidtaion but by the order dated 16.11.2019 his Appeal has been rejected on the same grounds as taken by the Consolidation Officer. The petitioner approached the D.D.C. in Revision but the same has also been rejected, this time taking different grounds altogether.

7. It has been argued by the learned counsel for the petitioner that the purpose of the Act is to facilitate a tenure holder in order to undertake better cultivation and the request for allotment of the said Gata numbers 155 and 156 was rejected only on the ground that it would lead to three Chaks being allotted to the petitioner which amounted to arbitrary exercise of power. The "proviso" appended to section 19 1(e) of the Act makes it permissible to allot three Chaks. The factors given under section 19 (1) (e) of the Act are merely directory in nature, the phrase "as far as possible" being not mandatory, and not accompanied by any sanction, the Consolidation Officer could have allotted a third Chak over Bachat land which land did not belong to anyone except for the Gram Sabha, which had not objected to such a request.

8. The learned Standing Counsel on the other hand has argued that there was no legal right of the petitioner that he be allotted land as per his choice. He has placed reliance upon judgements rendered by other Coordinate Benches of this Court in the cases of Ram Bachan vs. Deputy Director of Consolidation, Varanasi 2001 (supplement) RD 847, and Smt Jagwanta v DDC, 2002 (93) RD 602. In Ram Bachan versus Deputy Director of Consolidation Varanasi (supra), the petitioner filed an objection regarding the land in dispute that it was liable to be allotted to him as the same was situated near his house. On the other hand, the respondent claimed that the land in dispute was not a part of the original land of the petitioner therefore he had no right to get the same allotted in his favour. The Court observed that the petitioner had no legal right to claim allotment of land in dispute in his favour only because the said land was situated near his house.

9. In Smt. Jagwanta (supra), the petitioner had prayed for allotment of certain land which was proposed to be allotted to another, only on the ground that it was being used by her as a manure pit. The Consolidation Officer rejected the claim on the ground that the said plot was never earmarked for manure pit and therefore, the petitioner had no right to get the same allotted in her name. The Consolidation authorities had given a finding that from the map available on record it was apparent that between the house of the petitioner and the plot in dispute there was a Chakk Road. Therefore the plot number 50 could not be said to be an adjoining plot; that the petitioner was not the original tenure holder of the said plot; and though the original tenure holder of the plot initially did not raise any objection with respect to allotment of plot number 50, however, that would not give any right to the petitioner for allotment of the said plot. The Court upheld the findings and recorded that plot number 50 was not originally a part of the petitioner's holding, therefore she could not claim the allotment of the said plot as of right, even if the provisions of Section 19 of the UP Consolidation of Holdings Act are held to be mandatory, although they are not, as has been held by this Court in several of its decisions.

10. The counsel for the State Respondents has also argued that the petitioner did not stand to lose anything by refusal of his claim by the Consolidation Authorities. None of the his legal rights had been infringed. He has also placed reliance upon paragraph 8 of Bhola Rai versus Deputy Director of Consolidation Azamgarh and others 2004 (96) RD 673; where a Coordinate Bench of this Court was considering the allegation made by the petitioner that the respondent had been allotted land which was the original holding of her husband and that the petitioners'' 'original holding' which consisted of 31 plots was therefore reduced in area. In the counter affidavit it came out that the plots allotted to the contesting respondent were part of the original holding of her husband. The Court perused the Chak map prepared at the stage of Settlement Officer, Consolidation. It observed that the original holding of the husband of the contesting respondent on plot number 829 and 853 and 854, was rightly excluded from the petitioner's Chak and he was allotted plots on his original holding. The Court observed that the petitioner's Chak was still on the main road and major part of plot number 838 was still with the petitioner and apart from that he was also allotted plot number 839 situated on the main road, though it was not part of his original holding. In sum and substance, the petitioner's original holding on plot number 838 had an area of 370 Are, on the roadside, but by the orders impugned he had been allotted plot number is 838 and 839 total area 680 Are, on the roadside and no prejudice was caused to the petitioner. The court observed that the petitioner could not claim, as a matter of right, for allotment of original holding of others in his chak. The chak map also made it clear that the Deputy Director of Consolidation allotted just double the area to the petitioner's original Holding on the roadside. There was no illegality or violation of principles as laid down in section 19 of the U.P. Consolidation of Holdings Act, nor any prejudice was shown to have been caused to the petitioner by the order of the Deputy Director Consolidation. The petition therefore was dismissed.

11. Learned Standing Counsel has argued that the Consolidation Officer rightly rejected the petitioners objections as it is evident from a perusal of the pleadings on record, including the memo of the Revision filed by the petitioner, that the petitioner had been initially proposed two chaks of land which land comprised of part of his original holding on Gata number 8 Min. and the petitioner wanted that some part of his Chak on Gata number 8 should be allowed to be surrendered by him, and that he may be granted a third Chak on Gata numbers 155 and 156 which were Bachat land, and over which admittedly the petitioner had no right. The petitioner claimed allotment of such land only on the ground that it was situated near his residence.

12. It has been argued by the learned Standing Counsel that Section 19 enumerates the factors that have to be kept in mind while making allotment of Chaks. As has been held by this Court, such factors are the guiding principles and if chak allotment is done keeping in mind such principles and no illegality or infirmity is shown in the orders passed by the Consolidation Officer, this Court in Writ jurisdiction should not ordinarily interfere in orders passed by the learned courts below.

13. The learned Standing Counsel has argued that the petitioner was demanding allotment of chak over Bachat land which was the land to be used for common purpose. The learned counsel for the State Respondents has also placed reliance upon a judgment by the Supreme Court in Johrimal versus Director of Consolidation of Holdings, Punjab 1967(3)SCR 286; where the Supreme Court was considering the provisions of East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act 1948. The Scheme proposed under the said Punjab Act provided that owners of permanent 'ghers' or enclosures will be permitted to retain them in their possession. One of the proprietors, Johrimal, made a 'gher' in Khasra number 3942 and under the Scheme, this was to remain with him. The Director of Consolidation on the other hand reconsidered the matter and ordered that this particular piece of land i.e. Khasra number 3942, should be reserved for extension of Abadi for non-proprietors. The Director of Consolidation accordingly ordered that instead of being reserved for Johrimal, the plot should be kept for non-proprietors. Johrimal challenged the said order before the High Court and the Single Judge allowed the petition. Against this order the Director, Consolidation appealed under Clause 10 of the Letters Patent which was heard by a Full Bench, which by judgement dated 08.11.1960, allowed the appeal and reversed the order of the learned Single Judge and ordered that the writ petition should be dismissed. Johrimal challenged the said order before the Supreme Court.

14. The Supreme Court observed that the Punjab Act was passed to provide for compulsory consolidation of agricultural holdings and for preventing their fragmentation. Section 15 required the Consolidation Officer to provide for payment of compensation to any owner who was allotted a holding of less market value than his original holding and for the recovery of compensation from any owner who was allotted a holding of greater market value than that of his original holding. The Consolidation Officer's Scheme was subject to Appeal before the Settlement Officer, Consolidtaion, and a person aggrieved by the order of this Settlement Officer, Consolidtaion, could appeal to the State Government. Even where no appeal, was filed, the State Government could at any time, for the purpose of satisfying itself as to the legality or propriety of any order passed by the Officers under the Act, call for and examine the records of any case pending before or disposed of by such Officer, and could pass such order in Reference thereto as it thought fit, after giving opportunity of hearing to those who would be affected by such order. The Punjab Government by a notification had made Rules for reservation of Abadi land for proprietors as well as non-proprietors. The land reserved for extension of Abadi was to be divided into plots of suitable sizes. For the plots allotted to proprietors, area of equal value was to be deducted from their holdings, but in case of non-proprietors including Harijan families, they were to be allotted without payment of compensation and they were to be deemed to be owners of the plots allotted to them. In any estate or estates where during consolidation proceedings there was no Shamlat Deh land, or such land was considered inadequate, land would be reserved for village Panchayat out of the common pool of the village, and proprietary rights in respect of such lands so reserved, would vest in the Panchayat of the estate or estates concerned and on behalf of the village the Panchayat would have the right to utilise income derived from such plots which were reserved for common needs and for the benefit of the estate or the estates concerned.

15. The Supreme Court held in Johrimal (supra) that the power given to the State Government under section 42 of the Punjab Act was to review any order passed or scheme prepared or confirmed on a petition made by any Officer under the Punjab Act. There was a requirement in the Statute that before a valid scheme could be published, the State Government after notice and giving an opportunity to the interested persons to be heard, could make such variation as was required in public interest. Section 42 of the Punjab Act by which the State Government had to exercise such power also permitted delegation of such power to the Director of Consolidation which was done in this case. It was also observed by the Supreme Court that the legislature could not have intended that land should be taken from proprietors only for common purposes. The intention must be that all proprietors should contribute rateably for such purposes. Land reserved for common purpose was to be under the management of the Panchayat and to be used for common needs and benefits of the estates concerned.

16. The Supreme Court relied upon Attar Singh vs. State of U.P. 1959 Supplement SCR 928; where the Court was considering a similar provision in a similar Act (the U.P. Act) and had observed that the land which is taken over is a small bit, which sold by it self would hardly fetch anything.

"The small bits of land are collected from various tenure holders and consolidated in one place and added to the land which might be lying vacant so that it may be used for the purposes of section 14 (e). A compact area is thus created and it is used for the purposes of the tenure holders themselves and other villagers.Form CH 41 framed under Rule 41 (a) shows the purposes to which this land would be applied, namely, (1),plantation of trees, (2) pasture land, (3)manure pits,(4) threshing floor, (5)cremation ground, (6)graveyards, (7)primary or other schools, (8)Play ground,(9) Panchayatghar and (10) such other objects. These small bits of land that are acquired from tenure holders are consolidated and used for these purposes, which are directly for the benefit of the tenure holders. They are deprived of a small bit and in place of it they are given advantages in a much larger area of land made up of the small bits and also of vacant land."

In other words the proprietor gets advantages which he could never have got apart from the Scheme. For example, if one wanted a threshing floor, a manure pit, land for pasture, etc he would not have been able to have them on the fraction of his land reserved for common purposes.

17. The Supreme Court also answered the question in Attar Singh (supra) "whether taking away property from the proprietors amounted to acquisition by the State of any land?" The Supreme Court answered the question by asking further questions as to who was the real beneficiary?, 'was it the Panchayat or any other body?' It was observed that "The title remained in the proprietary body i.e. the village Panchayat and in the revenue records the land would be shown as belonging ''to all the owners and other right holders in proportion to their areas'. The Panchayat would manage it on behalf of the proprietors and use it for common purposes; it could not use it for any other purpose. The proprietors continued to enjoy the benefits derived from the use of and for common purposes. Although the non-proprietors would also derive benefits but their satisfaction and advancement enures in the end to the advantage of all the proprietors in the form of a more efficient agricultural community. The Panchayat as such does not enjoy any benefit. ...., it seems to us that the beneficiary of the modification of rights is not the State, and therefore there is no acquisition by the State within the second proviso".

18. It has been argued by the learned counsel for the petitioner in rejoinder that Bachat land is different from reserved land, and the petitioner was not asking for any part of his Chak to be carved out of reserved land. The Learned counsel for the petitioner has placed reliance upon a judgement rendered by a Coordinate Bench of this court in case of Ram Kumar and another versus Ziladhikari/ D.D.C. Muzaffar Nagar 2002 (93) RD 403, wherein the coordinate bench after considering Section 19 A of the Act had observed that it shall be lawful for the Assistant Consolidation Officer, where in his opinion it is necessary or expedient to do so, to allot Chak on Bachat land, after determining the valuation of any land belonging to the State Government or any other local authority. It only requires the Assistant Consolidation Officer to declare in writing that it is proposed to transfer the rights of the public as well as of all individuals in or over that land to any other land specified in the declaration, and earmarked for that purpose, in a provisional consolidation scheme. The Coordinate bench also considered Section 19 subsection (3) after its amendment which permitted Assistant Consolidation Officer to allot, after determining its valuation, any portion of agricultural wasteland or any other land vested in the Gaon Sabha or any other local authority or any land used for public purpose to any tenure holder so as to form part of his holding. Where any land vested in the Gaon Sabha or the local authority is allotted to a tenure holder under sub section (5) of section 19, it shall be deemed to have been resumed by the State Government under the provisions of section 117 for which compensation shall be paid by the State Government to the Gaon Sabha or the local authority as the case maybe, and it shall be settled with the tenure holders to whom it has been allotted by the Assistant Consolidation Officer on payment of compensation for development if any carried out by the Gaon Sabha on it earlier. The Assistant Consolidation Officer is required only to make a note that it is necessary to amalgamate the land used for public purpose with any holding of a private person. He has only to make a declaration to that effect stating that it is proposed to transfer the rights of the public as well as of all individuals in or over that land to any other land earmarked for the public purpose, in the statement of proposals, and whenever the rights are so transferred they shall stand extinguished from the land from which they are transferred and be created in the land to which they are transferred.

19. The learned counsel for the petitioner has placed reliance upon paragraph 11 & 12 of the judgement in Ram Kumar (supra). The relevant extract of para 11 is being quoted here in below: -

"Section 19 A also gives an idea that the land belonging to Gaon Sabha or the local authority can be allotted to a tenure holder. There is no prohibition in the allotment of land belonging to Gaon Sabha to a tenure holder. .........The Assistant Consolidation Officer has been fully empowered to allot any land belonging to the State Government or any other local authority or the land belonging to Gaon Sabha ....".

20. The relevant extract of paragraph 12 of the said judgement is being quoted here in below: -

"Thus the counsel for the petitioners is right in his submission that land belonging to State Government /Gaon Sabha even if it is for public purpose, can be allotted to a tenure holder in the consolidation proceedings and there is no lack of jurisdiction in the consolidation authorities in allotting the land for public purpose..." The only precondition for exercise of power given under section 19 A is that the Assistant Consolidation Officer should clearly write that it is proposed to transfer the rights of the public as well as of all individuals in and over that land, to any other land specified in the declaration and earmarked for that purpose, in the provisional consolidation scheme. ........"Thus public purpose land belonging to the Gaon Sabha cannot be allotted to a tenure holder unless any other land is specified in writing by the Assistant Consolidation Officer. The intention of the proviso is that public purpose be not defeated and if a land is earmarked for public purpose then it should not be allotted to any tenure holder unless any other land is specified to serve the public purpose. For example, if any pasture land is proposed to be allotted to tenure holder, the same cannot be done unless any other land is specified in writing to take the place of the land sought to be allotted. The proviso does not contemplate allotment ofPublic purpose land to tenure holders without there being any specification of any other land in which the rights of the public have to be adjusted. While allotting the land of Gaon Sabha it has to be kept in mind that the land of the Gram Sabhais basically for public purpose, public in general and society has interest in the public land. Public land should not be allotted only to serve individual interest, protection of ponds, tanks, mountains have been held to be necessary for environment protection and pollution control. Thus the Consolidation Officer allotting Gaon Sabha land should normally desist from allotting ponds, tanks, mountains, land in the nature of forest."

"......It has to be kept in mind that for protecting the public property and the interest of the public in general, the bodies which were entrusted with the said duties are often slack and not vigilant. The Gaon Sabha which is expected to protect its rights for the public in general occasionally abdicate their authority or moves with self interest of persons occupying the office."

21. Having heard the learned counsel for the parties, this Court has also perused the order passed by the Consolidation Officer and finds that the petitioner's objections have been sufficiently dealt with. In the order dated 11.10.2019 the Consolidation Officer has observed that the chaks of the petitioner had been shown on the plots of land comprising his original holding. The land of plot numbers 155 and 156 was not part of the original holding of the petitioner, therefore, giving of Chak on such land would amount to allotment of an Udaan Chak to the petitioner. Moreover, it would lead to the petitioner being given three Chaks instead of two which was inappropriate.

22. In the order passed by the Settlement Officer Consolidtaion dated 16.11.2019 the Settlement Officer Consolidation, has observed that he had perused C.H. Form 23, the map of the village concerned and other related documents. The Consolidation Officer had allotted two Chaks of land to the petitioner but the petitioner wanted to surrender some land in one Chak comprising of plot number 8, and to be given allotment on plot numbers 155 and 156 which was Bachat land. The Settlement Officer Consolidation went into the valuation of each of the Chaks allotted to the petitioner and compared it with the original valuation of the plots of the petitioner and came to the conclusion that the petitioner did not stand to lose by the allotment finally made to him as he had been given two Chaks on his original plots of land. On the other hand, in case the petitioner's claim was admitted it would amount to allotting three Chaks instead of two to the petitioner which was not at all appropriate.

23. The Deputy Director of Consolidation, Sitapur, while considering the Revision filed by the petitioner also took the same view as was taken by the Consolidation Officer. He observed in the order that the petitioner had already been allotted two Chaks on plots comprising his original holdings. Also the demand of third Chak made by the Revisionist was inappropriate because he was asking for allotment of plot number 155 in 156, which were not part of his original holding, and would lead to three Chaks being allotted to the revisionist instead of two and the third Chak being an Udan Chak.

24. This Court also finds from a perusal of Annexure 4 to the petition which is a copy of C.H. form 23 (1), that the petitioner had a share in as many as 13 plots of land at the start of consolidation operations. Gata number 8 admeasuring 2.909 ha was one of the plots of original holding of the petitioner whereas the total holding of the petitioner adding up the shares in 13 plots was 2.942 ha only. It meant that the petitioner had only a minuscule share in all the other 12 plots of land that comprised his original holding. The Land which was later on allotted to him comprised of plot number 8 as his first Chak, and his second Chak comprised of parts of Gata numbers 138, 139 and 141. The total land which was allotted to him was 2.776 ha with a valuation of 85.06 paise comparable to the original valuation of 88.61 Paise. The loss of less than three Paise in valuation was more than compensated By allotment of two compact Chaks instead of a minuscule share in the other 12 plots.

25. In Asbaran v DDC, 1986 RD 430; this Court was considering an argument raised by the petitioner that the Deputy Director of Consolidation while considering the Revision, had by the impugned order reduced the Chak of the petitioner by more than 25% of the land originally held by him. This according to him, could not have been done by the Deputy Director of Consolidation being violative of provisions contained in the proviso to section 19 1(b) of the Act. The Court observed that in the process of adjustment of Chaks made by the Deputy Director of Consolidation while deciding the Revisions and after hearing the parties, he could allot chaks to the parties which he may deem fit and proper on the facts of the case, in exercise of power under section 48 of the Act. The reduction in the allotted area to the extent of 28% from that of the original holding appears to have occurred on account of the fact that the petitioner had been allotted better quality land of exchange ratio of 12 Annas, as against the land taken out from his Chak which was valued at the exchange ratio of 8 to 10 Annas. Such allotment made by the Deputy Director of Consolidation Could not be held to be vitiated only on the ground that no written permission had been taken from the Director of Consolidation as envisaged under the proviso to section 19 1(b) of the Act.

26. The Court observed that Section 19 lays down the principles for guidance of Assistant Consolidation Officer in preparation of the provisional scheme which precedes consolidation. These principles regulate the powers of the Assistant Consolidation Officer. It is true that each one of the sub sections contains the qualifying words "as far as possible". This phrase really means that the principles are to be observed unless it is not possible to follow them in the particular circumstances of a case. This qualification was absolutely necessary in view of the fact that the process of compulsory consolidation is a very difficult and complicated one. In the peculiar conditions prevailing in the State, fragmentation of holdings has through a process of centuries, reached such a stage that there is no straight road back towards consolidation. What can be done in one village may not be possible in another. In view of the fact that consolidation is a pressing necessity, it was necessary to add these qualifying words. But that does not render the principles enunciated in Section 19 ineffective or illusory.

27. The Court in Asbaran (supra) referred to its own decision in Sri Nath versus Deputy Director of Consolidation Sultanpur, 1986 AWC 248, that the permission of the Director of Consolidation as envisaged under the proviso to section 19 1(b) would be necessary if the subordinate consolidation authorities would make allotment of a Chak having difference of more than 25% without obtaining prior permission. However where the Director of Consolidation or the Deputy Director of Consolidation, who exercises delegated power of the Director of Consolidation, has made allotment of such a chak to a tenure holder having a different of more than 25% in area, it would not be invalid because the permission for such allotment would be inherently manifest therein. If the authority which is required to give permission to an allotment of Chak having difference in area by more than 25% itself makes the allotment of such a Chak in the process of making appropriate adjustment in the Chaks of the parties, while deciding a revision, it cannot be taken to be invalid and without jurisdiction and no interference would be called for by this Court in exercise of Writ jurisdiction.

28. An argument was raised by the learned counsel for the petitioner that the Deputy Director of Consolidation had allotted an Udaan Chak to the petitioner against the provisions of section 19. The Court observed "it is nowhere provided in Section 19 of the Act that a tenure holder cannot be allotted a Chak having no part of his original holding. The requirement under section 19 1(b) of the Act is that the tenure holder, as far as possible, be allotted a compact area at a place where he holds the largest part of his holding, according to section 19 1(f) what a tenure holder, as far as possible, is to be allotted is a plot on which exists his private source of irrigation, or any other improvement, together with an area in the vicinity equal to the valuation of the plot originally held by him there. This provision contained in Section 19 1(f) enjoins upon the consolidation authorities to allot a plot on which exists the tenure holder's private source of irrigation or any other improvement. Apart from it, no other provisions of section 19 of the Act enjoin upon the consolidation authorities to make allotment of Chak to the tenure holder on his original plot, and the consolidation authorities in view of the provisions contained in section 19 1(e) of the Act are required to allot, as far as possible, a compact area to the tenure holder at a place where he holds his largest part of holding. If while making allotment of a Chak to the tenure holder the consolidation officer finds it difficult to make allotment of a Chak to him of a compact area at a place where he held the largest part of his holding, then, he has to assign reasons for not doing so. If no good reasons are shown, the allotment would certainly be held to be irregular and cannot be sustained. The aforesaid provisions contained in section 19 (1) of the Act, however cannot be construed to make it imperative on the consolidation authorities to allot chak of compact area to a tenure holder imperatively including there in some plot of his original holding. The requirement of such provision, in my opinion is that the tenure holder has to be allotted a Chak of a compact area at a place where exists the largest part of his holdings and not on the plot of his largest part of holding. In making allotment of Chaks equity amongst various tenure holders has to be adjusted, and as such, if it is not possible to include some of the original Chak of the tenure holder in the allotted chak, then the allotment of Chaks cannot be said to be invalid or without jurisdiction on the ground that no plot of original holding of the tenure holder has been included in his Chak, although a chak of compact area has been allotted at one place and in the vicinity where the tenure holder holds the largest part of his holding. The requirement of allotting original plot of the holding to the tenure holder in his Chak has been mandated only in section 19 1(f), according to which, if there is a private source of irrigation or other improvement on the plot in question, then it has got to be allotted to the Chak of the tenure holder. The allotment of chak in violation of the provisions contained in section 19 1(f) will certainly make the allotment illegal being violative of specific provisions, but in my opinion, an allotment of Udaan Chak cannot be taken to be illegal and without jurisdiction, if such a chak has been allotted at a place quite near to original land held by the tenure holder in its vicinity, and not excessively exceeding the valuation of his original plots in that sector. It can only be said to be irregular in those cases where the tenure holder is not allotted chak at a place in the vicinity of the original land held by him in the sector/area, but the allotment of Udan Chak to a tenure holder at a place quite near to his original plot of holding cannot be said to be invalid merely on the ground that being Udaan chak it could not be legally allotted. I find that there exists no legal bar to the allotment of Udan Chak or prohibiting allotment of such a Chak .....".

29. A consideration of this Court's observation in Asbaran (supra) and Srinath (supra) makes it amply clear that the provision of Section 19 are not to be lightly ignored. However, Section 19 only provides two conditions which have to be mandatorily followed. One relates to allotment to a tenure holder of chak upon the land to which he has already made some improvements, the second requires the authorities to allot to a tenure holdder chak over the largest part of his holding. If a chak holder is to be alloted land which was not part of his original holding, i.e., an udaan chak, the same must necessarily be allotted in the vicinity of the original land held by him in that sector/ area. The principles laid down in Section 19 are guiding factors hedged by the phrase:- "as far as possible" only to better facilitate consolidation and allotment of compact areas to facilitate better utilization of land and other resources.

30. This court in Jeet Narain versus Deputy Director of Consolidation and others, 1983 Allahabad Law Journal 998 ,has observed in paragraph 8 of its judgement that "no tenure holder can be allotted any land by the consolidation authorities merely for the purpose of extension of Abadi or for using it as a Sehan land, if he is not otherwise entitled to get the land allotted to him in his Chak near village Abadi. If a tenure holder is holding some land in his original holding near Village Abadi he can certainly be allotted land in his Chak to that extent at that place. He may or may not utilise that plot for cultivatory purpose and may use it for extension of Abadi or use it as Sehan land. But if he had no land near the village Abadi in his original holding, he would not be entitled to get a Chak allotted near Abadi merely on the ground that his house is situated near the land in question and he would require that land for being utilised as his Sehan or for extension of his Abadi. No land can be allotted to him at the cost of other tenure holders merely for the aforesaid purpose if he is not otherwise entitled to get a Chak allotted to him near the village Abadi as aforesaid. The consolidation authorities certainly make necessary reservation of land for the purpose of extension of Abadi, but such land would belong to the Gaon Sabha, and has to be allotted by it in accordance with the provisions contained in U.P. Zamindari Abolition and Land Reforms Act. No land can, however be reserved nor it can be allotted by the consolidation authorities to any particular individual tenure holder, merely on the ground that he would require it for extension of Abadi or for being utilised as Sehan land, if otherwise he is not entitled to land at that place near village Abadi as mentioned above...."

31. In A.M. Allison versus B.L. Sen AIR 1957 Supreme Court 227, the Supreme Court has observed in paragraph 11 that proceedings for issuing writ of Certiorari is not a matter of course and the High Court has power to decline the relief, in case it is found that no failure of justice has occurred. In Rai Shivendra Bahadur versus Governing Body of Nalanda College, Bihar Sharif, AIR 1962 Supreme Court 1210, it has been held that a writ of mandamus can be issued only if the petitioner has a legal right to enforce and the performance of a legal duty which has been cast upon the respondents.

32. This Court finds no factual or legal infirmity in the orders impugned. The petitioner's claim if acceded to would lead to fragmentation, instead of consolidation of holdings, and would be against the very object of the Act which is to create compact holdings of lesser number than originally possessed by the proprietors.

33. The writ petition is dismissed. No order as to costs.

Order Date :- 25th/06/2021

Rahul

[Justice Sangeeta Chandra]