Allahabad High Court
Virendra Kumar vs Deputy Director Of Consolidation And 6 ... on 20 February, 2025
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:24603
Reserved on : 13.02.2025
Delivered on : 20.02.2025
Court No. - 10
Case :- CIVIL MISC REVIEW APPLICATION No. - 603 of 2023
Applicant :- Virendra Kumar
Opposite Party :- Deputy Director Of Consolidation And 6 Others
Counsel for Applicant :-Sunil Kumar Srivastava,Vibha Srivastava
Counsel for Opposite Party :- C.S.C.,Ram Jeet Mishra,Sunil Kumar Srivastava
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Ms. Vibha Srivastava, learned counsel for petitioner and Sri Ram Jeet Mishra, learned counsel for respondent.
2. This is an application on behalf of applicant/writ petitioner for review to review the judgment dated 10.10.2023 passed in a writ petition, whereby it was dismissed. For reference the judgment under review in its entirety is reproduced hereinafter :-
"1. This writ petition is pending since 2005 whereas issue involved in not a complex issue as it was arising out of carving out a chak marg during consolidation proceedings.
2. Few facts which are not under dispute are that petitioner and respondents no. 2 to 4 are brothers and are original tenure holders of two plots in dispute. During consolidation proceedings a new chak marg was proposed which would divide, above mentioned two plots and therefore, the petitioner has moved objections under Section 20 of U.P. Consolidation of Holdings Act, 1953 (for short "Act of 1953"). Objections were considered by the Consolidation Officer and it was directed that proposed chak marg be earmarked from South side of referred two plots.
3. An appeal was preferred by respondent no.6 that chak marg was re-aligned without any spot inspection and without consideration prejudice likely to be caused to villagers. The appeal was allowed by an order dated 30.04.2005 passed by Settlement Officer of Consolidation and proposed chak marg at the stage of Assistant Consolidation Officer was restored.
4. In aforesaid circumstances, the petitioner preferred a revision petition before Deputy Director of Consolidation that appeal was filed by a stranger and an error was committed by said Appellate Authority to restore the chak marg as proposed by Assistant Consolidation Officer.
5. The Revisional Authority has considered grievance of petitioner that proposed chak marg would divide plots in two parts, however, instead of putting at Southern side of plot, it was directed to be put on Eastern side on the ground that it would be beneficial for villagers being a straight chak marg from abadi. The relevant part of impugned order is quoted below -:
"मैंने पक्षों को सुना तथा अभिलेखों का अवलोकन किया। निगरानीकर्ता को दो चक प्रथम मूल गाटा सं० १०९/१ व १०९/११९ पर व दूसरा चक आबादी के उत्तर पूरब कोने पर ०-०२४ का चक प्रदिस्ट किया गया है। चकमैप के अवलोकन से स्पस्ट है कि गाटा सं० १०९/१ व १०९/११९ पर बने चक में चकमार्ग से उसके चक का रकबा दो भाग में कर दिया गया है, जो उसके चक के उत्तर से एक तरफ से दिया जाना उचित प्रतीत होता है, इस प्रकार निगरानी अंशतः स्वीकार हो जाती है, जहाँ तक इस चकमार्ग को चक के दक्षिण से किये जाने का प्रश्न है, यह उचित नहीं है क्योंकि चकमार्ग सुदूर पूरब से आबादी तक एक सीध में दिया गया है।"
(Emphasis Supplied)
6. Ms. Vibha Srivastava, learned counsel for petitioner has vehemently submitted that Deputy Director of Consolidation has, on one hand, accepted the grievance of petitioner, however, by putting proposed chak marg on Southern side has caused more prejudice to him as relief sought was to put chak marg of Eastern side of plots as proposed by the Consolidation Officer.
7. Above submissions were opposed by Sri Ram Jeet Mishra, learned counsel for respondent no.6 that chak marg has to be earmarked at a place which would be more beneficial to villagers and Deputy Director of Consolidation has considered the grievance of petitioner that initially proposed chak would have divided two plots, therefore, chak marg was proposed on one side of plot. The grievance of petitioner that chak marg was placed on other side of plot would not be sustainable since Deputy Director of Consolidation has given a sustainable reason that it would be more beneficial to villagers since abadi was directly connected.
8. Heard learned counsel for parties and perused the records.
9. As referred above, main grievance of the petitioner was considered by Deputy Director of Consolidation and proposed chak marg was directed to be shifted from middle of two plots to one of the plot. So far as further grievance of petitioner is concerned that it ought to be on other side of plots is not supported by any legal sustainable argument whereas as referred above, Revisional Authority has given a legally sustainable reason to earmark chak marg at a particular side of the plot that "सुदूर पूरब से आबादी तक एक सीध में दिया गया है" i.e. in benefit of public at large of village and since it is not a perverse finding, therefore, as held in Central Council for Research in Ayurvedic Sciences and another vs. Bikartan Das and others, 2023 SCC Online SC 996 that this Court may exercise extraordinary jurisdiction of Article 226 of the Constitution only when the findings returned by Authorities are perverse whereas as referred above, it is not the case in hand.
10. In view of above, this Court does not find any ground to interfere with impugned order, accordingly, petition stands dismissed. "
3. Learned counsel for review applicant/writ petitioner has submitted that chak road as earmarked by Revisional Authority has disturbed the existing position and has greatly prejudiced the review applicant. Learned counsel also referred the following grounds mentioned in the review application :-
"11. Because, under the consolidation scheme section 52 A have special provision for chak road and chak guls-made under the said provision specially sub Clause 4-A refer-
(a) That as for as practicable, provision of chak road and chak gul should be made primarily by utilizing land vested in the Gram Sabha secondary out of land held by those tenure holder whose chak are connected with the purposed chak road or Chak Guls and in last resort, out of any other land.
(b) That re around ment of chaks should be made only to extent it is really necessary for making provision of chak road and chak gul with minimum possible dislocation in consolidation scheme already confirm. However, petitioner has clearly mention paragraph no. 10 of rejoinder affidavit that neither villager, nor owner, of concerning plot filed objection before settlement Consolidation Officer because the owner of Plot No. 32, 98, 82, and 68 are the brother of petitioner but the same has no problem in path made in south side in the field, but one who Kailash/Respondent No.6 have no easementary as well as for claiming the path in the middle plot of petitioner when ever path is available.
It is also against the basic Principal of Consolidation scheme as well as rule & regulation of U.P.C.H. Act. This aspect is not consider by this Hon'ble Court have provided on III party right. Made by this Hon'ble is not justified in accordance with law as well as it is also against the view of Apex Court.
It relevant to mentioned here that petitioner has not made offer to made the chakmarg from the divide the plot and without contribution of the land could not acquire under the scheme of U.P.C.H. Act as the provisions of section 19 sub clause so order passed by the Court is liable to be set aside.
12. Because, petitioner have in possession on till today during the pendency of case illegally map is prepared and old no has been become new No. there is no any disturbance made an spot even though as form 41 & 45 in petitioner his brother plot as shown-
Khata NO.
Name
New Plot
Virendra S/o Munnar residential
----
024 Ayre
0.155 Ayre
-----
01.179
Mahendra S/o Munnar
0.179
Rajendra S/o Munnar
Area 179
Surendra S/o
Area 0.179
Area 263
13. Because, according to map plot No. 264 belongs to the petitioner has exist in Abadi side and north side have chak marg thereafter New Chak Marg No. 263, than 256 Plot of deponent Rajendra, thereafter Plot NO. 255 Plot No. 255 thereafter again east side Plot No. 251 area 0.24 Ayre alloted to the petitioner is clear from the map is against basic principal of U.P.C.H. act as well as scheme under Section 19A sub cluase U.P.C.H. Act. This aspect is not consider by this Hon'ble Court.
It is relevant to mentioned here that tubewell is exist the plots of his brother and after making the chakmarg petitioner has face trouble for flouting the water and petitioner land side have in Abadi so petitioner want to one side of Chakmarg in accordance with law as provided basic principal of U.P.C.H. Act as well as under Section 19-A sub Clause f and g that the order is liable passed by the settlement officer of consolidation illegal. It is liable to be set aside perverse by the revisional court has not perverse the illegal order, that liable to be perverse by this Hon'ble Court."
4. Per contra, learned counsel for respondent has supported the judgment under review that it is a reasoned order which does not fall within the ambit of law of review as that there is no error on face of it. In support of his submission, he placed reliance on a judgment passed by Supreme Court in Arun Dev Upadhyaya Vs. Integrated Sales Service Ltd. and Anr., 2023 (8) SCC 11.
5. I have considered the above submission and perused the record. So far as law of review is concerned, it has been summarized by the Supreme Court in Arun Dev Upadhyaya (supra) and its relevant paragraph 15 is reproduced hereinafter :-
"15. Respondent 1 before approaching the High Court moved an application under Section 47 of the Arbitration and Conciliation Act, 1996 (in short "the Act") seeking execution of the arbitral award before the Principal District Judge at Nagpur. However, the said application was found to be not maintainable as it was the High Court which would have jurisdiction. The application before the Nagpur Bench of the Bombay High Court, seeking enforcement of the award was registered as MCA No. 1319 of 2015. Review petitioner on 27-1-2016 filed objections under Section 47 of the Act to which Respondent 1 filed its reply on 6-2-2016. A second set of objections were filed by the review petitioner on 3-3-2016 under Sections 44 to 49 of the Act challenging the recognition of the award as a foreign award as it did not satisfy the requirements both under the Act and also under the provisions of the New York Convention. DMC and GBTL filed separate objections under Section 49 of the Act to which replies were filed by Respondent 1."
6. The judgment under review is being quoted in earlier paragraph, wherein reason assigned by Deputy Director of Consolidation/ Revisional Authority to earmark the chak marg at particular side is being referred and considered also.
7. The finding returned by the Revisional Authority and affirmed by this Court was that the chak marg ought to be proposed in benefit of public, whereas the crux of argument fo review applicant was that prior chak marg was more beneficiary to the review applicant and any disturbance at the instance of other contesting party was erroneous since he was not prejudice by earlier position of chak marg. However, all arguments and grounds in this review application are on merit of the case. So much as that finding returned by Revisional Authority which are beyond the review judgment.
8. In order to consider the argument and grounds of review, this Court has to require long drawn process of reasoning which is not the scope of review. This Court has considered the submissions raised during the hearing of writ petition and affirmed the finding returned by the Revisional Authority on basis of a judgment passed by this Court in case of Central Council for Research in Ayurvedic Sciences and another Vs Bikartan Das and others, 2023 SCC Online SC 996 that in absence of any perversity, the writ jurisdiction may not be exercised even during argument of this application, no such ground was shown. The only argument was that the earlier position of chak marg was more beneficial to petitioner/ review applicant which has been disturbed at the revisional stage.
9. The said ground cannot be considered as material ground for the purpose of consideration of review application. Accordingly, the Court is of considered opinion that the judgment under review does not require review since all grounds are beyond the scope of law of review.
10. Accordingly, present review application is rejected.
Order Date :- 20.02.2025
P. Pandey
[SAURABH SHYAM SHAMSHERY, J.]
