Ram Avadh vs Deputy Director Of ...
2021 Latest Caselaw 3640 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 6
 
Case :- CONSOLIDATION No. - 10024 of 2016
 
Petitioner :- Ram Avadh
 
Respondent :- Deputy Director Of Consolidation, Faizabad & 3 Others
 
Counsel for Petitioner :- Ravindra Nath Tewari,Anurag Kumar Srivastav
 
Counsel for Respondent :- C.S.C.,Arun Kumar Pandey,I.M. Pandey Ist,K.N. Shukla
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard learned counsel for the petitioner Sri Ravindra Nath Tewari and learned counsel appearing on behalf of the opposite party no.4 Mr Arun Kumar Pandey.

2. It is the case of the petitioner that plot no.545 situated in village Paraspur Sathara, Pargana Rath, Tehsil Milkipur, District Faizabad (Now Ayodhya) ad-measuring 1-17-6 bigha was initially recorded jointly in the name of petitioner and his brothers in the Basic year khatauni. During the consolidation operations, it was renumbered keeping in view the situation of the land. Plot no. 545/1 ad-measuring 0.042 ha was recorded as Sadak khanti (low lying land adjacent to road not useful for cultivation). Plot No. 542/2 ad-measuring 0.250 hectare was cultivatory land having tube well therein and few scattered trees and plot No. 543/3 ad-measuring 0.180 hectare was recorded as grove land exclusively planted by respondent no.4 Ram Kuber.

3. It is the case of the petitioner that the petitioner and Ram Kuber, the respondent no. 4 and one Nand Kishore were real brothers, all sons of Ram Lakhan, the original tenure holder. Since Plot No. 545/3 ad-measuring 0.180 hectare being grove land was excluded from consolidation operations which was exclusively in the possession of respondent no.4, a prayer was made by the petitioner for allotment of plot no. 545/2 ad-measuring 0.25 hectare on which he had also installed a tubewell and it was near the Sahan to be allotted to him. The Assistant Consolidation Officer allotted two chaks each to the petitioner as well as his two brothers after conducting spot inspection. Plot no. 545/2 was allotted to the petitioner and plot no.545/3 was left for his brother Ram Kuber. The same was recorded as such in C.H. Form 23 also.

4. After publication of Statement of Principles, the respondent no.4 filed objections before the Consolidation Officer under Section 9A of the Act praying that plot no. 545/2 which also had scattered trees over it may also be excluded from the consolidation operations and also plot no. 545/1 which is adjacent to public Road may also be excluded. The Consolidation Officer inspected the site in question and stated that since there has been mutual division of the same plots amongst brothers and allocation of chaks are at final stage, there was no need to exclude the disputed plot nos. 545/1 and 545/2. The order was passed by the Consolidation Officer dated 20.09.2000 accordingly and it was not challenged by anyone and it became final between the parties.

5. After publication of consolidation scheme, the respondent no.4 again filed objections under Section 20 of the Consolidation of Holdings Act praying for exclusion of plot no. 545/1 and 545/2 from Consolidation operations. The Consolidation Officer ignored his own earlier order dated 20.09.2000 and passed an order on 04.04.2001 declaring a part of plot no. 545/2 as "chak out" land. To compensate the petitioner for the part of plot no.545/2 which was declared as chak out land, the petitioner was given a third chak which was also Udaan Chak.

6. The petitioner feeling aggrieved filed an Appeal against the order dated 04.04.2001 praying for restoration of chaks as had been determined at the stage of Assistant Consolidation Officer. The Appeal was heard by the Settlement Officer Consolidation along with four other related appeals. After carrying out spot inspection, it was observed by the respondent no.2 that plot no. 545/1 is Sadak Khanti, plot no.545/2 is cultivatory, and plot no. 545/3 is grove land. He also recorded that the sugarcane crop of the petitioner was standing over plot no. 545/2 and that plot no. 545/2 was situated near the sahan of the petitioner and respondent no.4 had no right to get the plot in question declared as "chak out" land after the order passed by the Consolidation Officer on 20.09.2000. Accordingly the order dated 04.04.2001 was quashed and all the four appeals were allowed by the Settlement Officer Consolidation on 14.05.2001.

7. The respondent no.4 preferred a Revision and the only prayer made therein was that he should be allotted chak over plot no. 545/2. No prayer was made to exclude the land from consolidation operations in view of the finality being attend to the order of the Consolidation Officer dated 20.09.2000. The petitioner as well as the respondent no.4 were heard by the respondent no.1, but the respondent no.1 concluded that the entire plot no.545/2 which was found adjacent to the road as also plot no.540, 541, 544 and 547. It was observed by the Deputy Director of Consolidation that since the adjacent plots were excluded from the consolidation operations, the plot no. 545/1 and 545/2 being adjacent to the road should also be excluded and the parties be compensated on the basis of valuation done of plot no.545/1, 545/2 and 545/3.

8. It has been submitted that while passing the revisional order the petitioner was not allotted any land of equivalent value as the same was not available due to the notification of the village under Section 52 of the Consolidation of Holdings act.

9. It has also been submitted that plot no.545/2 is not adjacent to the road. It has been submitted by learned counsel for the petitioner that the respondent no.1 also did not conduct any on the spot inspection whereas the Assistant Consolidation Officer as well as Settlement Officer Consolidation had conducted spot inspection before arriving at the conclusion. Since no prayer was made in the memo of the Revision with regard to exclusion of plot no. 545/2, there was no reason for Opposite Party no.1 to pass the order directing for its exclusion.

10. Learned counsel for the petitioner has also referred to Section 11 (A) of the Consolidation of Holdings Act where it has been provided that no question in respect of - (i) claims to land;(ii) partition of joint holdings; and (iii) valuation of plots, trees, wells and other improvements, where the question is sought to be raised by a tenure-holder, which has been raised under Section 9 or which might or ought to have been raised under that section, but has not been so raised, shall be raised or heard at any subsequent stage of the consolidation proceedings.

11. It has been submitted that the order of the Consolidation Officer passed on the 20.09.2000 having become final as it was not appealed against, the very same questions could not have been raised in Revision and therefore were in fact not raised. There was no prayer made that plot no. 545/2 be also declared as "chak out" land. The prayer made by respondent no.4 was only to the effect that he had not been heard in Appeal and no notice had been given to him of the Appeal being filed against the order passed by the Consolidation Officer on 04.04.2001 and that he was prejudiced by the allotment of plot no. 545/2 entirely to the petitioner. The Revisional Court however has passed the order impugned on 04.02.2016 by setting aside all the findings of the Consolidation Officer and the Assistant Consolidation Officer and in fact while deciding the Revision has directed that the whole of the plot no. 545/1, 545/2 and 545/3 be declared as "chak out" land.

12. Learned counsel for the petitioner has placed reliance upon the judgement rendered by this Court in Smt. Kiran Devi Vs. Deputy Director of Consolidation, Ghaziabad 2008 (104) RD 512 and Rajendra Kumar Upadhyay Vs. Deputy Director of Consolidation, Azamgarh 2014 (125) RD 145.

13. In the first judgment relied upon by learned counsel for the petitioner i.e. Smt. Kiran Devi (supra), it has been observed by the Court that Section 11A of the Act provides for bar of objections regarding valuation of plots, which has been raised under Section 9 or which might or ought to have been raised under that section at a later stage. The Court has relied upon observations made by Hon'ble Supreme Court in Gafoora and another Vs. Deputy Director of Consolidation and others, AIR 1975 SC 1716, where the court observed in paragraph-3 thus:

"3. The short question that arises for consideration is whether the High Court is correct in not interfering with the order of the Deputy Director under Article 226 of the Constitution. Jurisdiction under Article 226 is well settled. The High Court will interfere only if some order is passed by an authority in excess of jurisdiction or there is a manifest error of law apparent on the face of the records. The Principal question that was canvassed before the Deputy Director (Consolidation) was whether failure to prefer objection within the time-limit prescribed under section 9(2) of the Act would entitle an aggrieved party to agitate the matter beyond the prescribed period without explaining the cause of delay in preferring the objection and obtaining a proper order of condonation of delay from the appropriate authority. It is clear from the record that no objection was preferred within the prescribed time .............. That being the position, there was no material whatsoever before the Settlement Officer (Consolidation) for exercising his jurisdiction to condone the delay in lodging objection under section 9(2) of the Act. Section 11-A bars all objections in respect of claim to land, partition of joint holdings and valuation of plots, ect. Relating to the consolidation area which have been raised under section 9 or which might or ought to have been raised or heard at any stage of the consolidation proceedings......."

The Court in Kiran Devi (supra), relied upon by the learned counsel for the petitioner, has observed that when there is a bar under Section 11-A with regard to valuation, the same cannot be done even by any kind of consent by the parties.

14. In the second judgement relied upon by the learned counsel for the petitioner i.e Rajendra Kumar (supra) which has been passed by a Coordinate Bench of this Court, it has been observed that the prayer for declaring a particular plot of land as "chak out" land on the ground that it is not being utilized for agricultural purposes or the same is required for extension of Abadi land, and is land of commercial value situated adjacent to road, can be made and considered only when the original tenure holder comes forward with such a prayer. A person having no concern with the plot has no locus standi to get declared the same as "chak out" land.

In paragraph 10 of the judgement, it has been observed that during publication of provisional consolidation scheme matters relating to proper valuation and ownership of various plots and areas reserved for public purposes etc. are decided. Once these matters are finalized, publication is made under Section 9. It is at this stage that any holder of land can raise an objection and claim a certain area of his plot to be excluded from consolidation operations. In case such an objection is not filed, the bar created by Section 11 comes into operation. It was observed that it is only original holder of plot who can pray for certain area of the same being declared as "chak out" on the ground that it is not being used for agricultural purposes or that it has commercial value situated adjacent to road and alternative land should be allotted in the chak of the original tenure holder.

15. Learned counsel for the respondent no.4 on the other hand has referred to his counter affidavit to say that Gata No.545 as it originally existed was a large plot of land ad-measuring 1-17-6, recorded in the name of all the three brothers and is situated adjacent to Milkipur-Khajurahat Main Road and is commercially valuable land. During consolidation operations, it was divided into three plots as aforesaid and plot no.545/3 being grove land was excluded from consolidation operations. It has been submitted that tubewell of the petitioner is not situated over plot no.545/2 but it is situated over old Gata No.364 recorded as abadi land. It has been submitted that two Revisions were filed against the order of the Settlement Officer Consolidation, one by the respondent no.4 and another by Nand Kishore, the third brother. Nand Kishore died in the meantime and initially his daughter filed an application for substitution but later on the application for substitution was rejected for want of prosecution and no prayer was made thereafter by Kumari Rani Devi for restoration of the Revision.

16. It is the case of the respondent no.4 that both the brothers, Nand Kishore and Ram Kuber, had been discriminated as the Appellate Court found while noticing that the petitioner had equal shares i.e. 1/3rd share of plot no.545/3 which was chak out land, and plot no.545/1 which was "sadak khanti", directed that the plot no.545/2 be given entirely to the petitioner, which meant that the petitioner had 1/3rd share in two plots and one whole share in one plot. This fact has been noticed by the Revisional Court in the order impugned and he has tried to set right the equities by observing that plot no.545/1 and 545/2 are adjacent to Milkipur-Khajurahat Road and are land of commercial value. If the same are made "chak out" then 1/3 share of all the three brothers would automatically be determined and they would be compensated by allotment of alternative plots.

17. It has been submitted that it is wrong to say that respondent no.4 never filed any objections in time. In fact objections were filed by the respondent no.4 and several other villagers which were decided altogether with leading case being Case No.27: Dharamraj Vs. State, and the order dated 04.04.2001 was passed wherein the objections of the respondent no.4 was allowed and Gata no.545/1 and Gata No.545/3 were excluded from consolidation operations. The order passed by the Consolidation Officer was unnecessarily set aside by the Settlement Officer Consolidation by his order dated 14.05.2001, and a perusal of the order dated 14.05.2001 would show that although four appeals were decided together the Appeal of the petitioner was the leading case and facts mentioned by the petitioner in his Appeal alone was taken care of by the Appellate Court.

18. It has been submitted that the Revisional Court has only set right an error on the part of learned courts below and it has jurisdiction to do so in view of the law settled by Hon'ble Supreme Court and by this Court explaining the scope of Section 48(3) after its amendment. Learned counsel for the respondent no.4 has also placed reliance upon the judgment rendered by this Court in Raja Ram Vs. Deputy Director of Consolidation, Mirzapur, 2006 (101) RD 671, Mohar Singh and others Vs. Deputy Director of Consolidation, Meerut and others 2012 (115) RD 782, Ram Lakhan @ Ram Lakshan Vs. Deputy Director of Consolidation Faizabad and others 2013 (31) LCD 695.

19. In all the judgments referred to by learned counsel for the respondent no.4, it has been observed that in allotment of chaks, roadside land has to be distributed among all co-sharers according to their share to adjust the equities. The roadside land being land of potential value, co-sharers would be satisfied even if the width of the land was a bit narrow. Where the respective shares are not being distributed, at least proportionate allotment should be done to the extent of their share to each of the co-sharers and refusal to so by the Consolidation Authorities without any valid reason is liable to be interfered with in writ jurisdiction.

20. Learned counsel for the petitioner in rejoinder has submitted that the memo of the Revision filed at page 67 of the paper book would show that the respondent no. 4 has not requested nor prayed for declaring the plot no.545/2 as "chak out" land. He had only prayed for being compensated by allotment of some other land of equal value. Learned counsel for the petitioner has also read out the extract of the order of the Appellate Court, where it has been noticed that the respondent no.4 has been given the sole proprietorship over plot no.545/3 saying that it was is grove raised and tended by him. The question of jurisdiction of the Revisional Court has also been raised by learned counsel for the petitioner.

21. This Court has carefully perused the order passed by the Revisional Court, which has been read in its entirety by learned counsel for the parties. It appears that a prayer had been made initially by all the three brothers before the consolidation authorities to declare the entire plot nos.545/1, 545/2 and 545/3 as "chak out" land. However, the said prayer was rejected and only one of the plots which had the grove in it, namely, plot no.545/3 was declared as "chak out" land, but the proprietorship in the said land was not given entirely to the respondent no.4. Instead all the three brothers were being compensated equally in terms of 1/3 share each by giving a new number 878/0-180 ha and showing the same to be recorded in C.H. Form 45 equally to all three brothers. Four Appeals were filed by the brothers which were consolidated and decided by the Settlement Officer Consolidation by his order dated 14.05.2001, but he noticed only the facts as mentioned in the Appeal of the petitioner and ignored the case of the other brothers, as a result Nand Kishore and Ram Kuber approached the Revisional Court.

22. The Revisional Court having noticed that the land of plot no.545 was adjacent of Milkipur-Khajurahat Road, and that there were circulars to the effect that ten "lattha" of land i.e. nearly 40 metres of land (one "lattha" being equal to eight feet three inches in length), be left out on the side of main road, which was not taken care of by the Consolidation Authorities in respect of plot no.545/1 and 545/2. The Revisional Court also noticed that right adjacent to such plot no.545/2, plot nos.540, 541, 544 and 547 were situated on the southern and eastern side of the disputed plot had been declared as "chak out" land. On plot no.545/2 there were several trees of Guava, lemon, mango, sheesham and Eucalyptus. Moreover, by declaring 545/2 also as "chak out" land the parties could be compensated by giving them land elsewhere after valuation of the same in equal shares to each.

23. The Deputy Director of Consolidation has referred the matter back to the Consolidation Officer Kuchera to carry out the necessary corrections and make compensatory orders under Rule 109 of the Rules.

24. This Court finds no good ground in writ jurisdiction to interfere in such an order, particularly when this Court while entertaining the writ petition on 09.05.2016 had only directed that status quo be maintained with respect to the land in dispute as an interim measure.

25. The writ petition is dismissed. No orders as to Costs.

Order Date :- 16.3.2021

Rahul

[Justice Sangeeta Chandra]