Allahabad High Court
Sultan Ahmad And Another 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. - 4576 of 2018
Petitioner :- Sultan Ahmad And Another
Respondent :- Deputy Director Of Consolidation And 2 Others
Counsel for Petitioner :- Tawvab Ahmed Khan
Counsel for Respondent :- C.S.C.,Brajesh Shukla
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Tawvab Ahmed Khan, learned counsel for petitioners and Sri Brajesh Shukla, learned counsel for the respondents.
2. Petitioners have set up a case that they are Chakdar of Chak No.462 having his original holding over Gata Nos.619, 637 total area 0.230 Are, Gata No.606/1, area 0.009 Are, Gata No.652/1 area 0.119 Are, Gata No.589/1 area 0.045 Are, total Gata 05 total area 0.403 Are.
3. During Consolidation proceedings, Assistant Consolidation Officer has provided petitioners a compact Chak over Gata No.619 Min. total area 0.369 Are.
4. Petitioners being satisfied thereof have not filed any objection.
5. In above all Gatas six brothers of petitioners were co-sharers. Some of the co-sharers were satisfied and have not filed any objections.
6. One of the brother of petitioners 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 Are. His chak was also proposed over his original holding.
7. Petitioners have further set up their case that five co-sharers have given their consent before Assistant Consolidation Officer that petitioners who are sons of deceased brother of co-sharer may be provided a chak over Gata No.619.
8. Respondent no.2 filed an objection before Consolidation Officer that he may also be provided chak over Gata No.619 having irrigation facilities and being on roadside.
9. Petitioners 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 petitioners over Gata No.652 and 653 on the roadside vide order dated 10.3.2017 and the objection of petitioners was rejected. This led to filing of an appeal by petitioners.
11. Settlement Officer of Consolidation, vide order dated 23.5.2017 provided Chak to petitioners 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. Petitioners also filed a revision petition.
12. Revisional authority vide order dated 24.3.2018 allowed the revision petition filed by respondent no.2 in its entirety and allowed the entire Gata No.619 to the respondent no.2 and petitioners were deprived of their original holding and were allotted a 'Udaan Chak'.
13. Learned counsel for petitioners submits that a restoration application filed by them was also rejected vide impugned order dated 24.5.2018.
14. Learned counsel for petitioners 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 petitioners further submits that petitioners have a right of 6/7 share on their original holding over Gata No.619 whereas contesting respondent has right over 1/7 share, but he has been allotted entire share. He further submits that prayer of the revisionists was allowed beyond the prayer sought. All the six co-sharers including petitioners are entitled to have their share on roadside.
16. Learned counsel for petitioners 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 petitioners being Chakdar of Chak No.462 were allotted a chak more than to their shares 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 them 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, petitioners got chak which is still on the roadside, therefore, their grievance that they were not allotted land on the roadside is contrary to records and the map available.
21. Grievance of petitioners which requires consideration is that outcome of impugned orders passed by Deputy Director of Consolidation has materially affected their entire chak and they have been deprived from their original Chak from Gata No.619 which is also on roadside and it was erroneously given to respondent no.2.
22. There is a substance in the above argument of counsel for petitioners 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
