Ashfak Ahmad vs The Deputy Director ...
2023 Latest Caselaw 20623 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:52182
 

 
Court No. - 18
 
Case :- WRIT - B No. - 112 of 2023
 
Petitioner :- Ashfak Ahmad
 
Respondent :- The Deputy Director Consolidation Sultanpur And Others
 
Counsel for Petitioner :- Jai Prakash Yadav,Arvind Kumar Pathak
 
Counsel for Respondent :- C.S.C.,Anil Kumar Pandey,C.S.C.,Mohan Singh
 

 
Hon'ble Saurabh Lavania,J.

At the bar, it is stated by Shri Jai Prakash Yadav, the learned counsel for the petitioner and Shri Anil Kumar Pandey, opposite party No.5 (contesting opposite party) that WRIT - B No. - 112 of 2023, (Ashfak Ahmad vs. Deputy Director Consolidation Sultanpur And Others) relates to allotment of chak, as such, this petition can be decided separately.

Taking note of the aforesaid as also that the issue in WRIT - B No. - 179 of 2023, (Khurshid Ahmad And Others vs. Deputy Director Consolidation Sultanpur And Others) relates to jurisdiction of D.D.C, this Court proceeded to decide the WRIT - B No. - 112 of 2023 separately.

Heard Shri Jai Prakash Yadav, learned counsel for the petitioner and Shri Anil Kumar Pandey, learned counsel for the opposite party No.5 and Shri Hemant Kumar Pandey, learned State Counsel.

Under challenge are the order(s) dated 12.12.2022, 14.09.2022 and 27.01.2021 passed by opposite party No.1/Deputy Director Consolidation Sultanpur, opposite party No.2/Settlement Officer Consolidation Sultanpur and opposite party No.3/Consolidation Officer Sadar, Sultanpur, respectively.

The grievance of the petitioner as appears from the material available on record including the averments made in the present petition is to the effect that the Consolidation Authorities failed to provide chak(s) to the petitioner adjacent to the road.

Considered the submissions advanced by the learned counsel for the parties and perused the record.

Subject matter of the present petition relates to allotment of chak(s), as such, before proceeding further, this Court is of the view that the judgments on this aspect be taken note of as the principles in respect to allotment of chak has already been settled by this Court in various pronouncements.

In the judgement passed in the case of Asbaranv.Deputy Director of Consolidation, Gonda; 1986 A.W.C. 1088, this Court observed as under:

"This provision contained in Section 19(1)(f) enjoins upon the consolidation authorities to allot plot on which exists his private source of irrigation or any other improvement. Apart from it, no other provisions of Section 19 of the Act enjoins upon the consolidation authorities to make allotment of chak to the tenure-holder on his original plot and the consolidation authorities in view of 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 place where he holds largest part of his holding. The word as far as possible occurring in Section 19(1)(e) of the Act cannot be construed so as to give an unfettered discretion to the consolidation authorities in not making an allotment of a chak of compact area at place where the tenure holder holds his largest part of holding. It while making allotment of a chak to the tenure holder the Consolidation Officer finds it difficult to make allotment of 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)(e) 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 be imperatively including therein some plot of his original holding. The requirement of said provision, in my opinion, is that the tenure holder has to be allotted a chak of a compact area at a place where he holds the largest part of his holding and not on the plot of his largest part of holding. In making allotment of chaks equity amongst various tenure holders has got to be adjusted, and, as such, if it is not possible to include some of the original land of the tenure holder in the allotted chak; then the allotment of chak 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 a 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 exists private source of irrigation or other improvement on the plot in question, then it has got to be allotted in the chak of the tenure holder. The allotment of chak in violation of the provision contained in Section 19(1)(f) would certainly make allotment illegal being violative of specific provisions. But in my opinion, an allotment of a 'Uran' Chak cannot be taken toKhursheed be illegal and without jurisdiction if such a chak has been allotted at a place quite near the original land held by the tenure holder in its vicinity and not excessively exceeding the valuation of his original plots in that sector."

In the above case, this Court held that in view of the provision of Section 19(1)(e) the consolidation authorities are required to allot as far as possible a compact area to the tenure holder at a place where he holds the largest part of the holding and the judgment also says that the aforesaid provision can be construed to make it imperative on the consolidation authorities to allot chak of compact area to a tenure holder including therein some plot of his original holding.

In the judgment passed in the case of Mukut Nathiv.The Deputy Director of Consolidation, Gorakhpur; 1998 R.D. 148,this Court held in paragraph 5 as under:-

"The Consolidation Officer and Settlement Officer of Consolidation have carved out the chak of the petitioner in such a way that its shape was rectangular and was leading up to the P.W.D. road. The Deputy Director of Consolidation for the first time carved out a chak in rectangular shape running from north to south, with the result that the petitioner was deprived of the land towards P.W.D. road. The Deputy Director of Consolidation has not recorded any finding as to whether under the sale deed any specified portion was sold to the petitioner. In case the petitioner was sold a portion which did not lead up to P.W.D. road, the Deputy Director of Consolidation may be justified not to give such portion to the petitioner but if this portion was not specified or he was given a portion which leads up to the P.W.D. road, the order of the Deputy Director of Consolidation will not be valid and justified."

In respect to cases where the interference in the allotment of chaks is permissible under Article 226, the issue has been considered by this Court in Writ Petition (Cons.) No. 5001 of 1983 (Ram Udit Vs. D.D.C. & others) decided on 24.09.2014 and in para 29 to 32, this Court has said as under:-

"29. It is not in dispute that the allotment of Chaks is to be made taking into consideration principles laid down under Section 19 of Act 1953. These principles have been considered by this Court in Bechan Singh Vs. Deputy Director of Consolidation and others 1985 AWC 604 All. In para 4 thereof, this Court has said that allotment of Chak has to be made consistent with the principles, namely, (i) every tenure holder should be allotted compact area at the place where he holds largest part of his holding (ii) the tenure holder, as far as possible, should be allotted the plot on which exists his private source of irrigation or any other improvement together with the area in the vicinity equal to valuation of the plot originally held by him and (iii) every tenure holder, as far as possible, would be allotted Chak in conformity with the process of rectangulation. The Court further held that the area held by tenture holder prior to start of consolidation proceedings, is relevant only to ascertain whether the area allotted to the tenure holder, varies by more than 25% or not, as contained in the first proviso of Section 19 of the Act, 1953.

30. In Dr. A.N. Srivastava Vs. DDC 1982 LLJ 42 Hon'ble K. N. Misra J. referring to Section 19(1)(e) of Act 1953 said:

"The petitioners under the provisions of Section 19 (1) (e) of the Act were entitled to get a chak at a place where they had held largest part of their original holding. The words 'as for as possible' used in the said sub-section do not confer any jurisdiction upon the consolidation authorities to act arbitrarily ignoring the provisions contained therein. The Settlement Officer (Consolidation) while altering the chak of the petitioners should have assigned reasons for not making allotment to the petitioners on the aforesaid plots Nos. 1082 and 1087 which were admittedly largest part of their holding. In my opinion the words as far as possible used in Section 19 (1) (e) of the Act require the provisions contained therein to be followed unless their compliance cannot be made for specific reasons to be assigned for it"

(emphasis added)

31. This was reiterated in Samai Lal Vs. Deputy Director of Consolidation, Pratapgarh and others 1985 LLJ 330 and the Court further said:

"In the present case the Assistant Consolidation Officer appears to have acted illegally and in violation of the provisions contained in Section 19 (1) (e) of the Act which lays down that every tenure-holder, as for as possible, should be allotted a Chak at a place where he held his largest holding. The Assistant Consolidation Officer should have proposed a Chak of the petitioners on this very plot No. 1703 in accordance with the aforesaid provisions and in case it is not possible, then the reasons should have been mentioned for not allotting a Chak to the petitioners on their plot. The words "as far as possible" used in the said sub-section do not confer any jurisdiction upon the consolidation authorities to act arbitrarily, ignoring the provisions contained thereunder."

(emphasis added)

32. In Doodh Nath Vs. DDC and others 1988(6)LCD 453 the Court held, if a tenure holder has his Chak with private source of irrigation, allotment of chak must be weighed so as to keep intact private source of irrigation of such person. The Court said that there cannot be any legal justification for refusing to allot a Chak to a tenure holder at a particular place, where he had held his private source of irrigation on the ground that his sons or other relations may have been allotted a chak in its vicinity. Every tenure holder would be entitled to get allotment of chak at a place where he could be allotted chak, keeping in view the provisions contained in Section 19 of the Act. The tenure holder would be entitled to get near village Abadi so much of land which he originally held at that place and also at the place of his private source of irrigation. The Court also said that undoubtedly, while deciding objection filed by a tenure holder against proposed allotment of chaks, equities are to be adjusted taking into consideration location of original land-holding of the other tenure holders whose chaks are likely to be affected while determining the objection. But while doing so, just and appropriate claim put forth by the tenure holder cannot be rejected merely on the ground that he is a big tenure holder as compared to the opposite parties or that his son or some other relation has been allotted chak near the place where the objector claims an allotment of chak as against his original holding. The Court added a few words of caution for the consolidation authorities, in the following manner:

"In the matter of allotment of chaks a care is to be taken by the authorities to allot chak to the tenure holders to which they are entitled as against their original holdings. If appropriate chak is not allotted to a tenure holder, he sustains irreparable loss and injury for all times to come. Thus in exercise of powers under Article 226 of the Constitution, this Court is not to feel hesitant in interfering with the impugned orders which are found to be unwarranted in law and facts of the case, merely on the ground that the writ petition could not be taken up earlier for disposal. The impugned orders cannot be left to survive merely on the delay in disposal of the writ petition for no fault of the petitioner." (para-11)

In view of the principles indicated in the judgments referred above in light of the Section 19 of U.P. Consolidation of Holdings Act, 1953, this Court put a query to the counsel for the petitioner as to whether the chak(s) allotted to the petitioner are over "mool gatas".

In response, he says that the three chaks have been allotted to the petitioner over the "mool gatas". Thus, this Court finds that the allotment of chak(s) to this extent is in consonance with the principles embodied under Section 19 of the Act of 1953.

In regard to the grievance of the petitioner that the chak(s) were not allotted adjacent to the road, on being asked, learned counsel for the petitioner drawn the attention of this Court on the claim raised before the opposite party No.1/Deputy Director Consolidation Sultanpur and a bare perusal thereof including the prayer clause reflects that the petitioner demanded the chak to the west side of the National Highway and he has not demanded the chak adjacent to the road.

In the light of the aforesaid, this Court considered the concurrent findings of the facts recorded by the Consolidation Authorities under the Act of 1953 namely, Consolidation Officer, Settlement Officer Consolidation and Deputy Direction Consolidation, in particular, findings recorded by the opposite party No.1/Deputy Direction Consolidation, Sultanpur.

The findings recorded are justified as according to the same three chaks have been allotted to the petitioner over his mool gata(s) i.e. Gata No.1065, 768 & 1148 and if the chak(s) is/are provided to the petitioner as demanded, then, the number of chak(s) would increase, which would be against the principles embodied under Section 19 of the Act of 1953 and the chak(s) would not be in proper shape (rectangular).

For the reasons aforesaid, this Court finds that no interference is required in the matter. The petition is accordingly dismissed. Costs made easy.

Order Date :- 4.8.2023

Raj