Allahabad High Court

Ganesh vs State Of Up And 2 Others on 15 May, 2024





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


			 Neutral Citation No:-  2024:AHC:87287
 
					         Court No. 48
 
						Reserved on: 23.4.2024
 
						Delivered on: 15.5.2024
 
				         WRIT - B No. - 1254 of 2024
 

 
Petitioner :- 			Ganesh
 
Respondent :- 			State of U.P. & Others
 
Counsel for Petitioner:- 	Mr. Ramesh Rai, Advocate
 
Counsel for Respondent :- 	Mr. Anjani Kumar Chaurasia, Addl. 					C.S.C. and Mr. Murli Dhar Mishra, 					Advocate
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Ramesh Rai, learned counsel for the petitioner, Mr. Murli Dhar Mishra, learned counsel for respondent no.3 and Mr. Anjani Kumar Chaurasia, learned Additional Chief Standing Counsel for the State-respondents.

2. Brief facts of the case are that petitioner is chak holder no.69. The original plots of the petitioner is plot no.88, 520/1, 500/2, 660/1 and 633, having 1/3rd share. Petitioner was proposed two chaks by the assistant consolidation officer, 1st chak on plot no.520M, 519M and 2nd chak on plot nos. 76/2M and 88M. Respondent no.3 is chak holder no.28. Smt. Sheetala Devi, wife of Radhey Shyam is chak holder no.404 and Radhey Shyam (father of respondent No.3) is chak holder no.299. Respondent no.3 was allotted single chak on plot no.88. Against the proposal of the assistant consolidation officer, several set of chak objections under Section 20 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as the "U.P. C.H. Act") were filed by the tenure holders, which were decided by a common order dated 9.4.1991, passed by the consolidation officer. Against the order of the consolidation officer dated 9.4.1991, appeals under Section 21(2) of the U.P.C.H. Act, were filed including the petitioners' appeal which was numbered as Appeal No.343/287 (Ganesh vs. Uday Bhan) and the appeal of father of respondent no.3 was numbered as Appeal No.364/286 (Radhey Shyam vs. Vashisth). The aforementioned appeals were consolidated and heard together. The assistant settlement officer of consolidation by a common order dated 25.5.1993 decided all the chak appeals including the petitioner's appeal. The appeal of the father of respondent no.3 has also been allowed under the aforementioned appellate order. Against the aforementioned appellate order, two revisions under Section 48 of the U.P. C.H. Act were filed before the deputy director of consolidation. The revision filed by respondent no.3 was numbered as Revision No.856 and Revision No.854 was filed by the father of respondent no.3 for providing chak over plot no.189. The deputy director of consolidation vide order dated 23.3.1994, allowed both the revisions and made adjustment of the chak of the chak holders according to their demand. Against the revisional order dated 23.3.1994 passed in Revision No.856 as well as against the appellate order dated 25.5.1993 and 9.4.1991, order of the Consolidation Officer, Writ B No.23295 of 1994 was filed by respondent no.3/Udai Bhan before this Court. This Court after exchange of pleadings between the parties, heard the aforementioned writ petition and vide judgment dated 21.8.2019, allowed the aforementioned writ petition, setting aside the revisional order dated 23.3.1994 passed in Revision No.854 as well as Revision No.756 and remanded the matter back before the deputy director of consolidation, Gorakhpur to decide the revision afresh in view of the observations made in the body of the judgment. In pursuance of the order dated 21.8.2019, passed by this Court, the Deputy Director of Consolidation has obtained spot inspection report which was submitted by consolidator on 25.11.2022. The Deputy Direcotr of Consolidation allowed the revision filed by respondent no.3 vide order dated 8.12.2022. Against the order dated 8.12.2022, petitioner filed Writ B No.327/2023, challenging the revisional order dated 8.12.2022. This Court vide order dated 19.9.2023 allowed the Writ B No.327/2023 in part, setting aside the order dated 8.12.2022 and remanded the matter back before the revisional authority to decide the revision afresh. Against the order dated 19.9.2023, passed by this Court, Civil Misc. Review Application No.485 of 2023 was filed on behalf of respondent no.3 which was disposed of vide order dated 26.10.2023 with observation that the revisional authority shall also take note of the contents of the sale deed in regard to share as well as boundary mentioned therein on the basis of possession existing on the date of the execution of the sale deed, after making spot inspection if it is found necessary. Another Civil Misc. Review Application No.544/2023 was filed on behalf of respondent no.3 which was disposed of vide order dated 23.11.2023 with observation that revision be decided within a period of 4 weeks. The deputy director of consolidation in pursuance of the remand order, passed by this Court, heard the revision afresh and vide order dated 20.2.2024, allowed the revision, setting aside the order of the Consolidation Officer dated 28.8.1991 and Settlement Officer of Consolidation dated 23.8.1993, allotting chak to petitioner as well as respondent no.3, taking into consideration the sale deed, road side plot and other evidence on record, hence this writ petition on behalf of the petitioner, challenging the impugned revisional order dated 20.2.2024, passed by the deputy director of consolidation.

3. The parties have exchanged their pleadings in the matter.

4. Learned counsel for the petitioner submitted that under the impugned order, there is no fresh consideration of the matter in compliance of the order of this Court dated 19.9.2023, as such, the impugned revisional order cannot be sustained in the eye of law. He further submitted that respondent no.2/deputy director of consolidation has ignored the fact that at the time of the execution of sale deed of plot no.88, there was no pitch-road rather a kacha road, was in existence, therefore, the petitioner was given possession, facing kacha road in view of the sale deed dated 25.11.1970. He further submitted that other vendees through the same sale deed including respondent no.3 and his mother, have taken possession behind the petitioner and considering this aspect of the matter, the petitioner has been allotted chak, facing kacha road and allotment proceeding was finalized by the Assistant Settlement Officer of Consolidation vide order dated 25.5.1993 but the Deputy Director of Consolidation under the impugned order, has illegally set aside the orders passed by the Consolidation Officer dated 9.4.1991 and Assistant Settlement Officer of Consolidation dated 25.5.1993. He further submitted that plot no.88 has been purchased by the petitioner, therefore, the petitioner is entitled to entire area purchased by him but under the impugned order, the petitioner's area in plot no.88, has been reduced and the same has been allotted to respondent no.3 as well as in chak of his mother and father who has already sold out in the entire share of plot no.88. He further submitted that respondent no.2/deputy director of consolidation has failed to consider that plot no.88 was not facing to any pitch-road at the stage of section 8 of the U.P. C.H. Act and, therefore, respondent no.3 or his father and mother had not made any objection either for allotting the plot in their chak or the same may be kept out of consolidation, as such, finding recorded by respondent no.2 to the effect that plot no.88 is a valuable and commercial land, is wholly misconceived. He also submitted that the deputy director of consolidation under the impugned order has allotted chak to the father and mother of respondent no.3 in front side of the road, although there was no demand to that affect. He further submitted that plot no.88 was purchased by the petitioner from father of respondent no.3 in the year 1970 and at that time, the kacha road was in existence but without considering that aspect of the matter, impugned order has been passed in arbitrary manner by the deputy director of consolidation. He further submitted that pakka road facing plot no.88, has been constructed after consolidation operation, as such, the same cannot be taken into consideration by consolidation authorities in making alteration of chak after such a long period. He further submitted that the impugned revisional order passed by respondent no.2 is liable to be set aside and the order of the Consolidation Officer and the Assistant Settlement Officer of Consolidation be maintained.

5. On the other hand, learned counsel appearing for respondent no.3 submitted that plot no.88, area 4.110 acre was recorded in the basic year in the name of Radhey Shyam and Parwati, having ½ share each. He further submitted that Smt. Parwati had executed a will deed in favour of respondent no.3 in respect of her ½ share of plot no.88 and Radhey Shyam had executed a sale deed on 25.11.1970 in favour of his son Uday Bhan who is respondent no.3, Sheetala Devi, wife of Radhey Shyam as well as petitioner Ganesh. He further submitted that Uday Bhan, respondent no.3, became owner of 5/6th share in plot no.88 and petitioner will became owner of remaining 1/6th share of plot no.88. He further submitted that plot no.189 is the major original holding of contesting respondent no.3. He further submitted that in pursuance of the remand order passed by this Court, the deputy director of consolidation has decided the revision, adjusting the plot in accordance with law which requires no interference by this Court under Article 226 of the Constitution of India. He further submitted that under the impugned revisional order, the chaks have been allotted to petitioner and and contesting respondent no.3 in accordance with their share in plot no.88, adjusting both the parties to the writ petition. He further submitted that the deputy director of consolidation has rightly exercised the revisional jurisdiction, taking into consideration the provisions of Section 19 of the U.P. C.H. Act, as such, no further interference is required in the matter and the writ petition is liable to be dismissed. He further submitted that in the sale deed dated 25.11.1970, there is no disclosure regarding possession of the petitioner either towards road-side or otherwise, as such, under the impugned order, the chak has been allotted to the parties, considering the road situated adjacent to plot in question. He submitted that no interference is required and the writ petition is liable to be dismissed.

6. I have considered the arguments advanced by learned counsel for the parties and perused the records.

7. There is no dispute about the fact that chak objection filed by the petitioner, has been dismissed by the consolidation officer and the order has been maintained in appeal in the year 1993. There is also no dispute about the fact that initially revision filed by respondent no.3 was dismissed but in writ petitions filed by respondent no.3 as well as petitioner, the earlier revisional orders were set aside and the matter was remanded back to the revisional court to decide the revision afresh, accordingly, under the impugned revisional order, the revision filed by the respondent no.3 has been allowed and the chak has been adjusted between the petitioner and respondent no.3.

8. In order to appreciate the controversy involved in the matter, the perusal of the finding of fact recorded by the revisional court while deciding the revision under Section 48 of the U.P. C.H. Act will be necessary which is as under:-

आदेश पत्रक

न्यायालयः उप संचालक चकबन्दी

मण्डलः गोरखपुर, जनपदः गोरखपुर, तहसीलःसदर

वाद संख्याः- RST/0032/2019

कंप्यूटरकृत वाद संख्याः-2019530531000032

उदयभान बनाम गनेश आदि

अंतर्गत धाराः- 48(1), अधिनियमः-उ०प्र० जोत चकबन्दी अधिनियम,1953

मैनें उभय पक्षों के विद्वान अधिवक्ताओं के तर्को को सुना तथा पत्रावली पर उपलब्ध साक्ष्यों का परीक्षण एवं परिशीलन भलीभांति किया। राजस्व अभिलेखागार से आवश्यक अभिलेख तलब करके उसका सम्यक परीक्षण किया गया। अभिलेखीय परीक्षण से यह प्रमाणित है कि गाटा सं० 88 के पूरब तरफ पक्की सड़क है इस बात की पुष्टि चकबन्दीकर्ता द्वारा प्रस्तुत आख्या दिनांक 25-11-2022 से होती है जो उसके द्वारा इस न्यायालय को प्रेषित की गई है। बैनामा दिनांक 25-11-1970 की छायाप्रतिलिपि प्रस्तुत की गई है जिसके अवलोकन से यह स्पष्ट है कि गाटा सं० 88 का पंजीकृत बैनामा गनेश सिंह, उदयभान सिंह व श्रीमती शीतल देवी के पक्ष में किया गया है जिसमें तीनों क्रेतागण का हिस्सा बराबर-बराबर बकदर 1/3 है। निर्विवाद रूप से यह गाटा सड़क के किनारे स्थित होने के कारण मूल्यवान एवं वाणिज्यिक उपयोग की भूमि है। इस आधार पर तीनों क्रेतागण सड़क के किनारे की भूमि पर अपने-अपने हिस्से के अनुसार चक पाने के अधिकारी है। निगरानीकर्ता की तरफ से अपने कथन के समर्थन में 2022(156)आर.डी.385, 2013(121) आर.डी.561, 2006(100) आर.डी. 212, 2012(2) आर.यल.टी63, व 2012(2) आर.यल.टी.384 का उद्धरण प्रस्तुत किया गया है। इन व्यवस्थाओं में माननीय उच्च न्यायालय ने यह अवधारित किया है कि यदि कोई भूमि जो लोक सड़क से सटी हुई है एवं वाणिज्यिक मूल्य की है तो उसे या तो चक बाहर रखा जाय या उसे खाता धारकों के चक में उनके अंश के अनुसार आवंटित कर दिया जाय। माननीय उच्च न्यायालय ने भी अपने संशोधित आदेश दिनांक 26-10-2023 में यह निर्देशित किया है कि निगरानी का निस्तारण बैनामे और उसमें उल्लिखित चौहद्दी तथा सड़क का लिहाज करते हुए किया जाय। मेरे विचार से उक्त तथ्यों एवं साक्ष्यों के आधार पर तीनों क्रेतागण को सड़क के किनारे स्थित गाटा सं०88 पर सड़क को स्पर्श करते हुए उनके हिस्से के अनुसार चक प्रदान किया जाना न्यायोचित एवं विधि सम्मत है तद्नुसार निगरानी स्वीकार होने योग्य है और इस संबंध में पारित आदेश च०अ० दिनांक 28-08-1991 व आदेश अपीलीय न्यायालय दिनांक 23-05-1993 खण्डित होनो योग्य है।

आदेश

उक्त तथ्यों, तर्को एवं विधि व्यवस्थाओं को संज्ञान में लेते हुए तथा माननीय उच्च न्यायालय द्वारा पारित आदेश का समादर करते हुए निगरानी स्वीकार की जाती है तथा इस संबंध में पारित च०अ० का आदेश दिनांक 28-08-191 व अपीलीय न्यायालय द्वारा पारित आदेश दिनांक 23-8-1993 अपास्त किया जाता है। आदेश के साथ संलग्न संशोधन तालिका द्वारा चक सं० 28,404,299,69 व चक मार्ग प्रभावित होगें। संशोधन तालिका आदेश का अंग होगी जिसके अनुसार अभिलेखों में संशोधन किया जायेगा। वाद आवश्यक कार्यवाही निगरानी पत्रावली राजस्व अभिलेखागार में संचित हो और पक्ष तद्नुसार सूचित हो।

दिनांक						(राज नारायण त्रिपाठी)
 
                                          उप संचालक चकबन्दी, गोरखपुर।

9. The spot inspection report dated 25.11.2022 prepared by the consolidator after remand order dated 21.8.2019, passed by this Court in Writ B No.23295/1994 will be also relevant for perusal in order to peruse the spot position of the plot in question which is quoted hereunder:-

स्थलीय आख्या

श्रीमान

सं०च०अ०

श्रीमान उपसंचालक चकबन्दी गोरखपुर के निर्देश दिनांक 15.11.2022 के क्रम में स्थलीय आख्या ग्राम-अगया तथा पतरा त० सदर जिला-गोरखपुर का मौके पर गाटा सं० नई 134 गनेश पुत्र- कन्हई तथा गाटा संख्या 133,136,138 राधेश्याम, श्रीमती शितला, उदयभान जोत रहे है। गाटा 134 के पूरब पक्की सड़क है तथा नई गाटा 139 कच्चा रास्ता है नई गाटा 135 चक मार्ग चकदारो द्वारा जोता गया मौके पर कायम नही है। नजरी नक्शा निम्न है।

10. It is material to mention that old plots of the tenure holders were renumbered at the time of preparation of C.H. Form 41 & 45, accordingly, chak of the petitioner, consisting of plot no.88, has been renumbered as plot no.134 and chak of the respondent no.3 as well as his father and mother, consisting of plot no.88, was renumbered as plot nos. 133, 137, 138. This fact will be helpful to examine the report and map dated 25.11.2002 prepared by consolidator as mentioned above.

11. The above map prepared by consolidator at the bottom of the schedule, prepared in support of the order of Deputy Director of Consolidation dated 20.2.2024, is also relevant for perusal in order to understand the present spot position according to the order of Deputy Director of Consolidation.

12. The perusal of spot memo report dated 25.11.2022 as well as the finding of fact recorded by the revisional court fully demonstrates that in the eastern side of plot no.88 (new no.134), pitch-road is situated. The Deputy Director of Consolidation while passing the impugned revisional order dated 20.2.2024, has allotted the chak to the petitioner as well as contesting respondent no.3, adjacent to the pitch-road situated in the eastern side of their chak. The sketch map prepared at the bottom of the schedule prepared in support of order of the Deputy Director of Consolidation fully demonstrates that both the parties have been adjusted, facing pitch-road. The Deputy Director of Consolidation has also considered the sale deed dated 25.11.1970 executed in favour of the petitioner and the contesting respondent. It is also material that this Court in Writ B No.23295/1994 filed by respondent no.3 has also taken note about the fact that plot no.88 is adjacent to the road.

13. Considering the spot inspection report of the consolidator dated 25.11.2022 as well as the finding of fact recorded by the Deputy Director of Consolidation under the impugned revisional order, there is no illegality in the impugned order dated 20.2.2024 by which the chak of the petitioner and respondent no.3 has been adjusted, facing pitch-road according to their share in the plot no.88. The exercise of revisional jurisdiction under Section 48 of the U.P. C.H. Act by the Deputy Director of Consolidation in pursuance of the remand order passed by this Court, is in accordance with the provisions of U.P. C.H. Act.