Allahabad High Court
Hasrat Ali vs Deputy Director Of Consolidation ... on 25 July, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:148289
Court No. - 48
Case :- WRIT - B No. - 4583 of 2018
Petitioner :- Hasrat Ali
Respondent :- Deputy Director Of Consolidation Amroha And 3 Others
Counsel for Petitioner :- Ayub Khan,Tawvab Ahmed Khan
Counsel for Respondent :- C.S.C.,Mohd Mohiuddin Siddiqui,Om Prakash Rai
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Tawvab Ahmed Khan, learned counsel for the petitioners and Sri Mohd Mohiuddin Siddiqui, learned counsel for the respondents.
2. Petitioner has set up a case that he is Chakdar of Chak No.1676 having his original holding over Gata Nos.619, 637 total area 0.229 Are, Gata No.606 Min. area 0.058 Are, Gata No.652 area 0.120 Are, Gata No.589 Min, area 0.045 Are, Gata No.606 Area 0.033 Are, Gata No.589 Min. Area 0.005 Are, total Gata 07 total area 0.490 Are.
3. During Consolidation proceedings, Assistant Consolidation Officer has provided petitioner a compact Chak over Gata No.638 Min. and Gata No.637 being total area 0.514 Are.
4. Petitioner being satisfied thereof has not filed any objection thereof.
5. In above all Gatas six brothers of petitioners were co-sharer. Some of the co-sharers were satisfied and have not filed any objection.
6. One of the brother of petitioner Sageer Ahmad, Chakdar of Chak No.1564 having his original holding over Gata Nos.619, 637, 606 Min.,652, 589 Min,589 Min, total Gata 06 area 0.594 Are was proposed a chak over his original holding of Gata No.652, including minor share of Gata No.653 area 0.595 Area. His chak was also proposed over his original holding.
7. Petitioner has further set up his case that five co-sharers have given their consent before Assistant Consolidation Officer that respondent nos.3 and 4 (sons of deceased brother of petitioner) may be provided a chak over Gata No.619.
8.Respondent nos.5 filed an objection before the Consolidation Officer that he may also be provided chak over Gata No.619 having irrigation facilities and being on roadside.
9.Respondent nos.3 and 4 also filed a consolidated reply to the objection with the consent and signature/thumb impression of the other five co-sharers of Chakdar of chak No.500 and 503, 104, 1676 and 1677.
10. Consolidation Officer, Hasanpur has provided a compact Chak to the respondent no.2 over Gata No.1564 on the roadside vide order dated 10.3.2017 and the objection of respondent no.5 was rejected. This led to filing of an appeal by respondent nos.3 and 4.
11. Settlement Officer of Consolidation, vide order dated 23.5.2017 provided Chak to respondent nos. 3 and 4 over Gata No.619 and also provided Chak to Sageer Ahmad (respondent no.2) over Gata No.619 and provided half of Chak to respondent no.2 which was more than his share, but still he has filed a revision petition stating that he was entitled for entire share over Gata No.619. Respondent Nos.3 and 4 also filed a revision petition.
12. Revisional authority vide order dated 24.3.2018 allowed the revision petition in part and allotted the entire Gata No.619 to the respondent no.2 and the petitioner was deprived of his original holding and was allotted a 'Udaan Chak'.
13. Learned counsel for the petitioner submits that a restoration application was also rejected vide impugned order dated 24.5.2018.
14. Learned counsel for petitioner further submits that revisional authority has committed legal error and has not decided the case on the basis of factors given in Section 48 of Uttar Pardesh Consolidation of Holdings Act, 1953 (hereinafter referred as the 'Act of 1953').
15. Learned counsel for petitioner further submits that petitioner has a right of 1/7 share on his original holding over Gata No.619 whereas contesting respondent has also right over 1/7 share only, but he has been allotted entire share. He further submits that prayer of the revisionist was allowed beyond the prayer sought. All the six co-sharers including respondent no.2 are entitled to have their share on the roadside.
16. Learned counsel for petitioner has relied upon judgments of this Court in Ram Badan Vs. Deputy Director of Consolidation, Azamgarh & Ors, 2020 (147) RD 219 and Om Pal Vs. Deputy Director of Consolidation, Muzaffar Nagar & Ors, 2022 (154) RD 482, that valuable roadside land that is the original holding of a tenure holder, is to be declared chak out or allotted to him as part of his Chak, unless it be imperative on account of some compelling circumstances that may require some marginal departure from the Rule and that comparative hardship of both parties are to be considered specially when the chak of the tenure holder is going to be disturbed.
17. Per contra, learned counsel for respondents has supported the impugned orders and submitted that petitioner being Chakdar of Chak No.1676 was allotted a chak more than to his share and valuation of land over Gata No.637, therefore, Deputy Director of Consolidation, has rightly considered that Gata No.637 was more valuable from Gata No.619 of the revisionist and held that it would be appropriate to allot a chak to him on Gata No.637 and all the share holders shall get chak on the roadside land.
18. Heard learned counsel for parties and perused the records.
19. Case in hand appears to be a matter in respect of allotment of Chak between real brothers.
20. Even after the impugned orders were passed, petitioner got chak which is still on the roadside, therefore, his grievance that he was not allotted land on the roadside is contrary to records and the map available.
21. Grievance of the petitioner which requires consideration is that outcome of impugned orders passed by Deputy Director of Consolidation has materially affected his entire chak and he has been deprived from his original Chak from Gata No.619 which is also on the roadside and it was erroneously given to respondent no.2.
22. There is a substance in the above argument of counsel for petitioner which is supported by aforesaid judgments of co-ordinate Bench in Ram Badan and Om Pal (supra).
23. Accordingly, impugned orders dated 24.3.2018 and 24.5.2018 are set-aside and matter is remanded to Deputy Director of Consolidation, Meerut Camp, Amroha to consider the matter afresh in light of the judgments referred above as well as considering the factors mentioned in Section 48 of the Act of 1953 and pass a fresh order after hearing the parties expeditiously preferably within a period of six months from today.
24. With the aforesaid direction, this writ petition is disposed of.
Order Date :- 25.7.2023
SB
