Allahabad High Court
Ram Abhilakh vs Deputy Director Of Consolidation ... on 8 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 66, (2020) 146 REVDEC 552
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 25 Case :- CONSOLIDATION No. - 35 of 2015 Petitioner :- Ram Abhilakh Respondent :- Deputy Director Of Consolidation Faizabad & Others Counsel for Petitioner :- Radhey Shyam Tiwari Counsel for Respondent :- C.S.C.,Karm Veer Yadav,Onkar Nath Tiwari Hon'ble Mrs. Sangeeta Chandra,J.
1. Heard learned counsel for the petitioner and learned counsel for the respondent.
2. This petition has been filed challenging the order dated 22.01.2015 passed by the Deputy Director of Consolidation, Faizabad in Revision No.862: Badri Prasad Vs. State and others, by which the Revisional Court has allowed the Revision of the respondent no.3 and has set aside the order passed by the Settlement Officer (Consolidation), Faizabad dated 11.07.2014 and confirmed the order dated 26.09.2013 passed by the Consolidation Officer Kuchera, Faizabad.
3. It has been submitted by learned counsel for the petitioner that plot nos.1087, 1179 and 1276 situated in Village Majnai, Tehsil Milkipur, District Faizabad, are recorded in the name of the petitioner and during the consolidation proceedings, plot no.1179 was divided into two plots by numbering them as plot no.1179/1 ad-measuring 0.045 hectares and plot no.1179/2 ad-measuring 0.453 hectares. During the preparation of the statement of principles under Section 8A of the Uttar Pradesh Consolidation of Holdings Act (hereinafter referred to as 'the Act'), the Assistant Consolidation Officer proposed the area of 0.022 hectares to be carved out of plot no.1179/2 and marked as land appurtenant to building (LAB) chak in favour of respondent no.3 Badri Prasad. The petitioner had his private source of irrigation and number of trees over plot number 1179/2 as well as his house and Sehan situated thereon. The petitioner filed objections under Section 9B of the Act before the Consolidation Officer, Kuchera, Faizabad, registered as Case No.53: Ram Abhilakh Vs. State of U.P. and others. The objections were rejected ex parte on 05.05.2011.
4. The petitioner thereafter filed a recall application along with the application for condonation of delay. The order dated 05.05.2011 was recalled. Later on the respondent no.2 decided the matter without conducting any on spot inspection, although it has been stated in the order impugned dated 26.09.2013 that he had visited the plots in question. The petitioner filed an Appeal against the order dated 26.09.2013 before the Settlement Officer (Consolidation) Faizabad which was registered as Appeal no.88: Ram Abhilakh Vs. State of U.P. and others. Learned Appellate Court was informed in the Appeal that in between plot no.1179/2 and plot no.737, on which the house of the respondent no.3 is situated, there is a great distance and the allotment of LAB chak over plot no.1179/2 to the respondent no.3 would prejudice the rights of the petitioner who has his house and private source of irrigation and number of trees standing thereon. The said Appeal was allowed on 11.07.2014 by the Settlement Officer (Consolidation).
5. The respondent no.3 thereafter filed a time barred Revision on 16.08.2014 which was contested by the petitioner by submitting his written arguments on 24.09.2014. The Revisional Court ignored the submission made by the petitioner in his written arguments and passed the order impugend dated 22.01.2015, allowing the Revision and setting aside the order of the Settlement Officer (Consolidation) dated 11.07.2004.
6. It has been further submitted by learned counsel for the petitioner on the basis of the pleadings mentioned in paragraph-9 of the writ petition that the respondent no.3 has his house existing over the plot no.737 recorded as abadi land and on the east side of the said plot, two plots, namely, plot no.1182 and 1184 exist, which are marked as Banjar and, thereafter, plot no.1180 and 1181 exist and then the plot of the petitioner i.e. plot no.1179 is situated. There is considerable distance between plot no.737 and plot no.1179 and the marking of LAB chak by the Assistant Consolidation Officer, affirmed by the Consolidation Officer has been wrongly done. A true copy of the extract of the village map showing the situation of plot no.1179 and 737 has been filed as annexure-8 to the petition.
7. It has also been submitted on the basis of the map so filed as annexure that it is evident that plot no.737 is situated on the left hand side, thereafter plot no.1181, 1182 and two narrow strips of land are also situated and thereafter the plot no.1179 is situated. There is no common boundary between plot no.737 and plot no.1179, therefore, there cannot be any question of LAB chak being alloted to the respondent no.3 over the plot of the petitioner.
8. Learned counsel for the respondent no.3 Sri Onkar Nath Tiwari has referred to the order passed by the Consolidation Officer which shows that at least two spot inspections were conducted by him before the order was passed on 26.09.2013 rejecting the objections of the petitioner. It has been submitted that, in case, in the Appeal there was a ground taken that the house of the respondent no.3 was situated at quite a clear distance from plot no.1179, then the Appellate Court should have summoned a fresh inspection report or it could have done local inspection of the area in question to ascertain whether observations made by the Consolidation Officer were correct.
9. Learned counsel for the respondent no.3 has also stated that in sub-Clause 4 of Section 9B of the Act, where objections have been filed against the statement of principles under Section 9 of the Act by the Assistant Consolidation Officer, the Consolidation Officer and the Settlement Officer (Consolidation) shall, before deciding the objection or the appeal, as the case may be, make a local inspection of the unit after giving due notice to the parties concerned and the Consolidation Committee.
10. It has been submitted that although the Consolidation Officer made a local inspection twice, the Settlement Officer (Consolidation) should have also made a local inspection after giving due notice to the parties concerned and the Consolidation Committee. He did no such thing. He straightway, even without issuing notice and hearing the respondent no.3, passed the order dated 11.07.2014. The respondent no.3 thereafter filed the Revision and the Revision has rightly been allowed.
11. This Court has perused the order passed by the Consolidation Officer, the order passed by the Appellate Authority, the Settlement Officer (Consolidation) and the order passed by the Revisional Court. In the pleadings in the writ petition, there is a specific reference in paragraph 9 that the house of the petitioner being situated on plot no.737 and in between the plot no.1179 and plot no.737 at least four plots were existing, namely, 1180, 1181, 1182 and 1184.
12. The respondent no.3 in his counter affidavit has made a bald denial of the paragraph-9. He has not stated as to on which plot of land his house was situated. In the order passed by the Consolidation Officer also there is no mention of the plot of land on which the house of the respondent no.3 was situated. It is apparent from the map of the village, which has not been disputed by the respondent no.3 that there are at least four plots of land in between plot no.737 and plot no.1179/2.
13. This Court is of the considered opinion that in case the Consolidation Officer had indeed made such local inspection, a local inspection report/ spot memo should have been prepared mentioning the situation of houses of both the parties to the lis. No spot memo was prepared. Had it been so, the Consolidation Officer would have mentioned this fact in his order saying that spot memo was prepared after local inspection being done giving notice to the parties and the Consolidation Committee. The spot memo could also have indicated the signatures of the parties concerned and the Consolidation Committee. If indeed local inspection was made by the Consolidation Officer, he would also have mentioned the plot of land on which the respondent no.3's house was situated.
14. The order of the Revisional Court having been passed without looking into the map of the village and only on the basis of the averment made in the Revision that at least two spot inspections were done before the objection of the petitioner was rejected, has passed an arbitrary order. The order dated 22.01.2015 of the Revisional Court is set aside. Consequently, the order passed by the Appellate Court is affirmed.
15. The writ petition stands allowed.
Order Date :- 8.1.2020 Rahul