Om Pal Versus Deputy Director of Consolidation, Muzaffar Nagar and Others [WRIT – B No. – 47744 of 2016]
Judgment
Heard Mr. S K Mishra & Mr. S.K. Pandey, learned counsel for the petitioner and Mr. Rahul Kumar Tyagi, Advocate for contesting respondent No. 2.
1. The instant writ petition has been filed by the petitioner for quashing the impugned revisional order dated 9.9.2016 passed by respondent no. 1 in Revision No. 558, under Section 48 of U.P. C.H. Act (Annexure No-2 to the writ petition).
2. The brief fact of the case are as follows:
Petitioner is chak holder no. 131 and respondent no.2 is chak holder nos. 12 & 180. Petitioner is original tenure holder of plot no. 217, area 0.0460 hectare and plot no. 218, area 0.0460 hectare as well as of plot no. 560, 543 & 560, total area 0.2693 hectare and the Assistant Consolidation officer has proposed chak in the year 2013, comprising of plot No. 214/1, area 0.2152, plot no. 215, area 0.0050, plot no. 216 area 0·0350, plot no. 217, area 0.0050, total area 0.2602 hectare. CH. 23 part 1 relating to petitioner has been annexed as Annexure No – 1 to the writ petition. Petitioner has annexed the village map as Annexure No-6 to the writ petition to demonstrate that original plot No-217 & 218 are road side plot and road was numbered as plot No- 713 & 714 in the village map. Petitioner has also annexed C.H. form 2-Ka as Annexure R.A.1 to the rejoinder affidavit in which plot No. 713 & 714 are mentioned as sarak, this clearly demonstrate that plot No. 217 & 218 are road side original plots of petitioner. It is material to state that respondent No. 2 is not original tenure holder of plot No – 217 & 218 nor had any share in the same in any manner.
3. Against the proposal of Assistant Consolidation Officer, respondent no. 2 filled objection under section 20 of U.P. C.H. Act to the effect that he should be given plot No. 528 in his chak, as well as purchased chak No. 390 be also given in his earlier chak, the Consolidation Officer by order dated 30.4.2014, partly allowed the objection of respondent No. 2 by which petitioner was not effected in any manner. Against the order of Consolidation Officer dated 30-4-2014, respondent no. 2 filed an appeal under Section 21 (2) of U.P. C.H. Act with the changed demand that his chak in eastern side of sector be abolished and he should be accommodated in the western side with his chak No-12, 180 & 390. It was further prayed that chak of opposite parties be given either in northern side or in the eastern side. The appeal was initially decided on 29-11-2014 but on the application of respondent no. 2 himself, the appeal was restored & the same was again heard and decided by order dated 29.6.2015 by which the claim of respondent no. 2 was partly accepted, affecting the chak holder no. 100 but petitioner was not affected in any manner.
4. Respondent No-2 challenged the order dated 29.6.2015 through revision under section- 48 of UPCH Act before respondent no. 1. The revision was numbered as Revision No- 558 under Section 48(1) of the U.P.C.H. Act. In revision respondent No 2 further increased his demand to the effect that he should be given chak of petitioner. The respondent no. 1 in cursory manner allowed the revision filed by petitioner only considering the demand of petitioner & there was no consideration that what damage will be caused to petitioner who will be deprived of his roadside original holding. The revisional order was passed by respondent no-1 on 9.9.2016. Petitioner challenged the revisional impugned order dated 9.9.2016 through present writ portion in which following interim – order was passed on 03.10.2016:
“Notice on behalf of respondent-1 has been accepted by Chief Standing Counsel.
Issue notice to respondents-2 to 4.
The counsel for the petitioner submits that plot nos. 217 and 218 were original holdings of the petitioner. The petitioner was allotted chak from the stage of ACO on these plots, which are road side lands, but the DDC has illegally disturbed the chak of the petitioner and allotted him chak in the back side.
The matter requires consideration.
Till the next date of listing, operation of the order dated 9.9.2016 shall remain stayed. “
5. Learned Counsel for the petitioner contended that petitioner is original tenure holder of plot No 217 & 218 which are roadside plot. Respondent No-2 has no concern with plot Nos. 217 & 218. Petitioner’s road side plot has not been disturbed till the S.O.C. stage but at the revisional stage respondent No. 1 without considering the hardship of the petitioner, allowed the revision of the petitioner and roadside plot of the petitioner has been taken away at the revisional stage, as such, impugned revisional order is liable to be set aside.
6. On the other hand, learned Counsel for respondent no. 2 argued that respondent no. 2 has rightly allowed the revision in order to make the holding of both parties compact as provided under Section 19(1)(e) of the U.P. C.H. Act. Learned counsel placed reliance upon the judgment of this Court reported in 2018 (138) R.D. 558 (Baid Urrahman @ Obedurrahman Vs. Deputy Director of Consolidation) and prayed that writ petition filed by petitioner is liable to be dismissed as equity has been adjusted between the parties.
7. Considered the submission made by the learned counsel for the parties.
8. There is no dispute about the fact that petitioner is original tenure holder of plot Nos. 217 & 218. On the point whether plot Nos. 217 & 218 are roadside plot or not, petitioner has annexed the C.H. form 2 Ka in which plot Nos- 713 & 714 are mentioned as Sarak and in the village map, plot nos. 217 & 218 are shown as adjacent to plot nos. 713 & 714 which demonstrate that plot nos. 217 & 218 are roadside plot. On the other hand, counsel for the respondent no. 2 is arguing that “sarak” is “Kachhi Sarak” but there is no document for that in the counter affidavit. Accordingly plot nos. 217 & 218 will be treated as road side plot. Respondent No. 2 was changing / increasing his demand from stage to stage. The Consolidation Officer and S.O.C. have partly satisfied the demand of the respondent no. 2 but respondent No-1 arbitrarily and in cursory manner, allowed the revision of the petitioner, without considering the comparative hardship of the petitioner. Under the revisional order, petitioner has been deprived of his original holding which in roadside also in the name of making the chak of respondent No 2 compact which is not permissible under Section 48 of the U.P. C.H. Act. Section -19(1)(e) of UP. CH Act is as follows:
“19. Conditions to be fulfilled by a Consolidation Scheme.-(1) A consolidation scheme shall fulfill the following conditions, namely,
(a)……
(b)……
(c)……
(d)……
(e) every tenure-holder is, as far as possible, allotted a compact area at the place where he holds the largest part of his holding :
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”
9. From reading of Section 19(1)(e) and considering the case of the parties, it is clear that consolidation authorities can not pass arbitrary order in order to make the chak compact without any rhyme or reasons. Good and strong reasons in support of the order will have to be assigned by the concerned authorities so that tenure holder may not be deprived from his original road side plot in the name of compactness of the chak. It is no doubt correct that during chak allotment proceedings, the allotment cannot be made in such a manner which may satisfy every tenure holder but the consolidation authorities are required to make adjustment in a manner that mandate of the Act / Rules is not flouted.
10. This Court in a case reported in 2005 (99) RD 65 (Mahabeer vs. Deputy Director of Consolidation, Jaunpur and Others) has held that comparative hardship of both parties are to be considered specially when the chak of the tenure holder is going to be disturbed. The Court has also held that revisional court is the last court of fact as such it is expected from the revisional court to exercise the jurisdiction with utmost care and caution.
11. This Court in a case reported in 2006 (100) RD 212, Ram Chandar vs. Deputy Director of Consolidation, Varanasi and Others, has held that original holding situated adjacent to public road should not be allotted to any one except the original tenure holder or to be excluded from consolidation operation.
12. This Court in another recent decision reported in 2020 (147) R.D. 219, Ram Badan vs. Deputy Director of Consolidation, Azamgarh & Others, has held that roadside land either to be excluded from consolidation operation or to be included in the chak of that chak holder who held it as original.
13. The Consolidation Commissioner, U.P. by the notification dated 26.5.1981 issued under the U.P. C.H. Act has laid down principle for exclusion of the land situated on the main road, national, provincial or any other main road in all villages from the chak allotment proceedings.
14. The case law cited by learned counsel for the respondent no. 2 is not applicable in the present facts of the case where petitioner has been deprived from his original roadside plot at the revisional stage.
15. Considering the provisions of the act and law laid down by this court as well as the reasons mentioned above, the impugned revisional order dated 9.9.2016 passed by respondent no. 1 in Revision No. 558 of U.P.C.H. Act cannot be sustained and is liable to be set aside. There is no need to remand the matter back for fresh consideration as by the order of Settlement Officer Consolidation, respondent no. 2 – Abdul Gaffar and chak holder no. 100 – Mohd. Ikbal were effected and chak holder no. 100 has not challenged the appellate order in revision, as such order dated 20.6.2015 is liable to be maintained so that petitioner’s original roadside plot may not be effected.
16. The writ petition succeeds and is allowed. The revisional order dated 9.9.2016 passed by respondent No-1 in Revision No. 558 is quashed and appellate order dated 29.6.2015 passed in Appeal No.442 is maintained. No orders as to costs.
