Arun Deo Dhar And 3 Others vs Deputy Director Of Consolidation ...
2023 Latest Caselaw 3937 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 5
 
Case :- WRIT - B No. - 165 of 2023
 
Petitioner :- Arun Deo Dhar And 3 Others
 
Respondent :- Deputy Director Of Consolidation And 3 Others
 
Counsel for Petitioner :- B.S. Pandey
 
Counsel for Respondent :- C.S.C.,Ganesh Datt Mishra
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the petitioners, learned Standing Counsel representing respondent nos. 1 and 4 and learned counsel for the private respondent nos. 3 on admission stage of the instant writ petition and perused the record on board.

2. The petitioners have invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India by way of filing the instant writ petition assailing the order dated 30.12.2022 passed by the Deputy Director of Consolidation in Revision No. 515 of 2022 (Smt. Vindhyavasini Devi vs. State of U.P. and others).

3. Facts culled out from the averment made in the writ petition are that during provisional consolidation scheme Uma Shanker Dhar Dwivedi (predecessor in the interest of the petitioners) had been proposed chak no. 35 at three places. Likewise, Smt. Vindhyavasini Devi (respondent no. 3) has been proposed chak no. 344 at three places. Having been dissatisfied with the chak proposed to her, respondent no. 3 has filed objection under Section 21(1) of the U.P. Consolidation of Holdings Act (in brevity "U.P.C.H. Act") claiming carvation of chak over her original holding i.e. plot no. 142/4 in place of her third chak. Objection filed on behalf of respondent no. 3 was rejected by the Consolidation Officer. The Settlement Officer of Consolidation, on appeal being filed on behalf of respondent no. 3, has dismissed the appeal. However, the Deputy Director of Consolidation has allowed the revision filed on behalf of the petitioners proposing her chak over her original holdings i.e. plot no. 142/4. Having been aggrieved against the order passed by the Deputy Director of Consolidation, petitioners have preferred the instant writ petition.

4. It is submitted by the counsel for the petitioners that the Deputy Director of Consolidation has illegally allotted fourth chak to respondent no. 3 without assigning any cogent reason, which is against the conditions as enunciated under section 19 of U.P.C.H. Act. In support of his case counsel for the petitioners has relied upon the case of Ram Singh and others vs. Chief Revenue Officer/ Deputy Director of Consolidation, Basti and others, reported in 2016 (130) R.D. 166. It is further submitted that respondent no. 3 had already been granted her original holdings in her chak, therefore, there is no justification to interfere with the orders passed by the Consolidation Officer and the Settlement Officer of Consolidation and allotting fourth chak to the petitioners over plot no. 142/4. In support of his submission learned counsel for the petitioners has relied upon the case of Girja Shankar and others vs. Deputy Director of Consolidation, reported in 2002 Rajasva Nirnaya Sangrah 217 and case of Yadu Nath vs. Deputy Director of Consolidation, reported in 2002 Rajasva Nirnaya Sangrah 375. Lastly, counsel for the petitioners has submitted that the order passed by the Deputy Director of Consolidation amounts to review of its earlier order dated 15.07.2021 by which he has refused to grant permission for creation of fourth chak in favour of respondent no. 3. In support of his submission, counsel for the petitioner has relied upon the Full Bench judgment of this Court in the case of Shivraji vs. Deputy Director of Consolidation Allahabad, reported in 1997 0 R.D. 562.

5. Per contra, learned counsel for the respondent no. 3 has contended that the Deputy Director of Consolidation has rightly allotted chak to the respondent no. 3 over her original holdings i.e. plot no. 142/4 by assigning cogent reasons. It is further contended that plot no. 142/4 is the original holding of respondent no. 3 situated near canal, therefore, depriving the respondent no. 3 from his original holding situated near the irrigation facility is not justifiable in the eye of law. It is next contended that the order impugned dated 30.12.2022 cannot be treated as a review of earlier order dated 15.07.2021 inasmuch as earlier order cannot be said to be passed in a regular proceeding and the entire record was not placed before the Deputy Director of Consolidation for taking a decision on the reference letter dated 30.06.2021 sent by the Settlement Officer of Consolidation for grant of permission. It is next contended that the instant writ petition is liable to be dismissed in limine, being devoid on merits and misconceived.

6. Having considered the rival submissions advanced by the counsel for the parties and perusal of record, it reveals that plot no. 142/4 is the original holding of respondent no. 3, which is situated near the canal. As per finding returned by the consolidation courts, canal runs through plot no. 142/4, which is a valuable land, and important for the purposes of irrigation. Considering it being original holding of respondent no. 3 and its potentiality, the Deputy Director of Consolidation has proposed fourth chak to respondent no. 3 over plot no. 142/4. It is not the case of the petitioners that plot no. 142/4 is their original holding. It appears that they were proposed Udan chak over plot no. 142/4, which has been taken out from their chak and in its place they have been proposed chak over plot no. 304M and 306M by the order impugned dated 30.12.2022.

7. So far as the submission made by the learned counsel for the petitioners with respect to carvation of fourth chak is concerned, the Deputy Director of Consolidation has assigned cogent reasons for allotment of fourth chak. Under Section 19(1)(e) of the U.P.C.H. Act it is specifically provided that every tenure-holder is, as far as possible, allotted a compact area at the place where he holds the largest part of his holding. The Deputy Director of Consolidation has considered the case of respondent no. 3 that plot no. 142/4 is her largest holding, therefore, she has been proposed chak over plot no. 142/4. First proviso to the Section 19(1)(e) of U.P.C.H. Act provides that no tenure-holder may be allotted more chaks than three, except with the approval in writing of the Deputy Director of Consolidation. In the given circumstances of the present case the Deputy Director of Consolidation himself has considered the case of the parties on merits and came to a conclusion that respondent no. 3 is entitled for the fourth chak over her original holdings i.e. plot no. 142/4. Second proviso to Section 19(1)(e) of U.P.C.H. Act, in fact, comes in the rescue of first proviso by enabling provision that tenure holder if allotted more chaks than three, in that condition such allotment shall not be invalid. Case of Ram Singh (supra), in fact, supports the case of respondent no. 3. The relevant paragraph nos. 13, 14 and 15, as relied upon by the counsel for the petitioners, are quoted herein below:-

"13. The aforesaid two provisos are extracted below:

"Provided that no tenure-holder may be allotted more chaks than three, except with the approval in writing of the Deputy Director of Consolidation:

Provided further that no consolidation made shall be invalid for the reason merely that the number of chaks allotted to a tenure-holder exceeds three;

14. The two provisos have to be read harmoniously. The first proviso provides that no tenure holder may be allotted more than three chaks. In case a tenure holder is to be allotted more than three chaks, this can be done only with the previous approval of the Deputy Director of Consolidation in writing. The second proviso, in my considered opinion must necessarily be held to mean that in case a tenure holder is allotted more than three chaks with the approval of the Deputy Director of Consolidation, the same would not be invalid. Providing any other explanation to the second proviso would make the first proviso redundant.

15. This interpretation may be further exemplified by hypothetical situation. It is possible that there might be a very large tenure holder in the unit and it might therefore, on account of his very large holding, be impossible to allot him only three chaks. The second proviso, in my considered opinion, deals with such a contingency. It therefore necessarily follows that normally a tenure holder is not to be allotted more than three chaks. This is the basic object of the Act itself. Cogent reasons are to be given, if the same is impossible. In case reasons are given, the allotment proceedings would not be rendered invalid on the ground that more than three chaks have been allotted."

8. The ratio decided by the coordinate Bench of this Court in the matter of Ram Singh (supra) is fully applicable in the matter, in support of respondent no. 3. The order passed by the Deputy Director of Consolidation cannot be said to be passed in violation of the provisions as enunciated under Section 19(1)(e) of U.P.C.H. Act. Deputy Director of Consolidation has given cogent reason in allotting fourth chak to respondent no. 3 over plot no. 142/4, whereas petitioner has been proposed Udan chak over plot no. 142/4.

9. Learned counsel for the petitioners in his next submission has vehemently argued that the order impugned passed by the Deputy Director of Consolidation is a review of the previous order dated 15.07.2021 passed by the Deputy Director of Consolidation. Record reveals that assailing the order dated 25.03.2021 passed by the Consolidation Officer, respondent no. 3 has preferred an appeal before the Settlement Officer of Consolidation. During pendency of the appeal, the Settlement Officer of Consolidation has made a communication to the Deputy Director of Consolidation for permission to allot fourth chak to respondent no. 3 over plot no. 142/4. The Deputy Director of Consolidation, vide order dated 15.07.2021, has refused to grant permission for allotment of fourth chak recording the reason that under the Consolidation Manual fourth chak is not permissible. Perusal of order dated 15.07.2021 reveals that the Deputy Director of Consolidation has not discussed the merit of the case and has not assigned any cogent reason for rejecting the proposal as made by the Settlement Officer of Consolidation for allotment of fourth chak except the provision of Consolidation Manual.

10. In my considered opinion, order dated 15.07.2021 cannot be said to be passed in the judicial proceeding, at most it could be treated as administrative order which has been passed on the communication made by the Settlement Officer of Consolidation for getting permission for allotment of fourth chak in favour of respondent no. 3. While dealing with the merits of the revision in regular side, arising out of proceeding under Section 21(1) of U.P. C.H. Act, the Deputy Director of Consolidation has carefully scrutinized all the documents available on record and assigned cogent reason for allotment of fourth chak in favour of respondent no. 3. Thus, the order dated 03.02.2022 passed by the Deputy Director of Consolidation cannot be said to be an order of review of the previous order dated 15.07.2021. In this eventuality, ratio decided by this Court in the matter of Shivraji (supra) is not applicable in the given circumstances of the present case. Lastly learned counsel for the petitioners has submitted that maximum area of plot no. 142/4 has been allotted to respondent no. 3 and substantial justice was done with her. Therefore, there was no occasion for allotment of fourth chak over remaining area of plot no. 142/4. This submission is also not convincing. Settlement Officer of Consolidation, considering the facts of the case and record on board, was intended to allot fourth chak to respondent no. 3 over plot no. 142/4, however, he could not pass order accordingly owing to absence of permission in writing from Deputy Director of Consolidation. On revision being filed on behalf of respondent no.3, Deputy Director of Consolidation has granted fourth chak over her original holding i.e. plot no. 142/4 considering its utility and value. Therefore, proposing maximum area, as submitted the learned counsel for the petitioners, cannot be considered a good ground to interfere in orders under challenge.

11. Considering the facts and circumstances of the present case and the reasoning given by the Deputy Director of Consolidation in proposing the fourth chak over plot no. 142/4, the submissions made by the learned counsel for the petitioners is unfounded on the facts and law. Learned counsel for the petitioners has failed to demonstrate as to how petitioners are prejudiced, or is there any likelihood of causing miscarriage of justice to them, owing to the impugned order under challenge. There is no illegality, perversity or ambiguity in the impugned order which may warrant indulgence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.

12. As such, instant writ petition, being devoid on merits and misconceived, is dismissed with no order as to costs.

Order Date :- 8.2.2023/Pkb/