Asadullah vs J.D.C. And Others
2022 Latest Caselaw 6550 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved on 06.05.2022
 
Delivered on 12.07.2022
 
In Chamber
 

 
Case :- WRIT - B No. - 12314 of 1981
 

 
Petitioner :- Asadullah
 
Respondent :- J.D.C. And Others
 
Counsel for Petitioner :- N.S. Chaudhary
 
Counsel for Respondent :- S.C.,Ramesh Chandra
 

 
Hon'ble Anjani Kumar Mishra,J.

Order on the Recall Application No.3 of 2018.

This application seeks recall of the order dated 20.08.2014. The cause shown for the delay in filing the restoration application is found to be sufficient. The delay in filing the recall application, is hereby condoned.

Even the cause shown for non appearance is found to be sufficient and, therefore, the recall application is allowed and the writ petition is restored to its original number.

Order on the Substitution Application No.6 of 2019.

A belated application is up for consideration for bringing on record the heirs of deceased respondent no.3.

Upon hearing learned counsel for the parties, the cause shown for the delay is found to be sufficient. The delay in filing the substitution application is hereby condoned and the abatement of the writ petition is set aside.

The substitution application is allowed.

Office to incorporate the same before issuing a copy of this order to any of the parties.

Order on the writ petition.

Heard learned counsel for the petitioner and counsel appearing for the respondents.

The writ petition arises out of proceedings for allotment of chaks and seeks quashing of the order dated 05.08.1981 passed by the Joint Director of Consolidation, Basti and the order dated 11.08.1981 passed by the second respondent, the Assistant Settlement Officer Consolidation.

It appears that the third respondent (since deceased) filed an objection under Section 20 of the U.P. Consolidation of Holdings Act on 09.02.1978 claiming that the chak allotted to him was very long and narrow being 2 kattha wide and almost 60 to 65 kattha long and, therefore, not fit for cultivation. This objection was rejected by the Consolidation Officer vide order dated 24.02.1975 observing that a long narrow chak had been allotted to the third respondent near his abadi for growing vegetables and an offer was made to him for merging his chaks, which was not accepted. Hence the rejection order.

It appears that another objection under Section 20 of the Act was filed by the third respondent on 05.03.1979. This objection was dismissed by the Consolidation Officer on 01.06.1979 on the ground of limitation and also on the ground that it was not maintainable as the tenure holder had no right to file the second objection under Section 20 of the Act.

Thereafter, the third respondent filed an appeal on 17.012.1979 challenging the order passed by the Consolidation Officer on 24.02.1975, the order, whereby his objection under Section 20 had been rejected.

This appeal was barred by time and was accompanied by an application for condonation of delay along with an affidavit filed in support thereof. The cause shown for the delay was that the objector was residing in Bombay in connection with his employment and, therefore, was not aware of the order of the Consolidation Officer. When he returned to his village, he came to know about it and, therefore, the appeal was filed belatedly.

The Assistant Settlement Officer Consolidation finding that no counter affidavit had been filed by the petitioner to the affidavit filed in support of the delay condonation application, condoned the delay. He thereafter proceeded to decide the objection and finding that a very long and narrow chak had been allotted to the appellant, allowed the appeal, modifying the chaks of the appellant and the petitioner.

Aggrieved by the appellant order, the petitioner filed a revision, which was dismissed by the Joint Director of Consolidation, vide order dated 05.02.1981. Hence this writ petition.

The contention of learned counsel for the petitioner before this Court as also in the written arguments filed by him is that the Assistant Settlement Officer Consolidation did not assign any reasons for finding cause shown for the delay to be sufficient.

The second contention is that the finding returned by the Consolidation Officer in his order dated 24.02.1975 rejecting the objection has not been set aside by the Assistant Settlement Officer Consolidation while passing a judgment of reversal.

The third contention raised is that admittedly the petitioner had filed two objections under Section 20 of the Act. The second objection was rejected on 01.06.1979. This order was not subjected to any further challenge and is therefore become final and therefore no relief could be granted to the objector, respondent no.3 by the appellate court. Further that the Deputy Director of Consolidation has committed patent illegality in filing to advert of this aspect of the matter.

Lastly, reliance has been placed upon a decision of this Court in Jeet Narain Vs. Dy. Director of Consolidation, Lucknow Camp at Gyanpur and others, 1984 RD (9), a copy whereof is annexed along with written arguments filed by the petitioner. The judgment cited basically holds that a person is not entitled to allotment of a chak near his abadi unless and until he was possessed of some holding there.

Counsel appearing for the respondents has supported to impugned order and has prayed for dismissal of the writ petition.

In the context of the arguments raised, I have carefully perused the order of the Assistant Settlement Officer Consolidation. The delay in filing the appeal was condoned primarily on the ground that no counter affidavit had been filed by the petitioner rebutting the assertions on the basis whereof, condonaion of delay was prayed for.

I do not find any illegality in the approach which is fully in consonance with law. Therefore, the contention of learned counsel for the petitioner that the appellate court did not record any finding regarding the sufficiency of cause shown for the delay or that he has condoned the delay without assigning any reason is without merit.

The second contention raised on behalf of the petitioner that the finding of the Consolidation Officer was not set aside by the Assistant Settlement Officer Consolidation in his order of reversal whereby he has allowed the appeal of the respondent is also without merit. The Consolidation Officer did find that a very long and narrow chak had been allotted to the petitioner but dismissed the objection merely on the observation that the adjustment proposed by him was not acceptable to the objector.

Allotment of chaks is to be made in accordance with the principles laid down in Section 19 of the Act. The Consolidation Officer was bound to have followed the said principles while deciding the objection. It was not open for the Consolidation Officer to have rejected the objection merely because the objector did not agree to the modifications proposed by him. Such an approach cannot be accepted as there is no estoppel against law.

In any case, no finding on the merits of the case had been returned, which was required to be set aside by the appellate authority.

The third submission of learned counsel for the petitioner that the order dated 01.06.1979, whereby the second objection under Section 20 of the U.P. Consolidation of Holdings Act filed by the respondent had been rejected has not been challenged and, therefore, no relief is liable to be granted to the petitioner is also without substance. The second objection under Section 20 had been dismissed as barred by time and primarily holding it to be, not maintainable. There is no illegality in this order because once an objection under Section 20 had been filed, no second objection could have been filed by the respondent. The respondent has therefore, and on realizing his mistake filed a time barred appeal against the order of the Consolidation Officer dated 24.02.1975, whereby his first objection had been rejected. The second objection was in any case not maintainable and could not have been entertained and merely because it was filed the same would not in any manner detract from the case of the respondent. Moreover, an order holding an objection to be not maintainable will not merge with any order as is the contention in the writ petition. Merger will arise only in case of orders passed in proceedings which are maintainable.

The only other aspect which requires consideration is the reliance upon the judgment in case of Jeet Narain (supra). Even this judgment, in my considered opinion does not improve the case of the petitioner. The Deputy Director of Consolidation has categorically observed that the abadi of the objector and the petitioner was situated near the chak of the petitioner which has been modified by the appellate order impugned. Thus the respondent was entitled to a chak at that place because not only was his house situated there, he was also possessed of his original holding at the spot. The other finding returned is that the abadi of the third respondent was situated on plot no. 1222 and the size of the abadi, itself was 0-3-10 while a lesser area of 0-2-18 alone had been declared chak out.

In view of the above, I do not find any merit in the submissions made by learned counsel for the petitioner nor is there any illegality in the impugned appellate and revisional orders, which would call for any interference.

Accordingly, the writ petition is found to be without merit and is dismissed.

Order Date :- 12.7.2022

Mayank