Allahabad High Court
Ram Badan vs D.D.C. And Others on 6 November, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 18 Case :- WRIT - B No. - 1445 of 1997 Petitioner :- Ram Badan Respondent :- D.D.C. And Others Counsel for Petitioner :- R.N. Singh,Karuna Srivastava,Mayank Krishna S Chandel,Santosh Kumar Srivastava,V.K. Chandel Counsel for Respondent :- S.C.,D.K.Pandey,Devesh Kumar Verma,P.K.S. Paliwal,R.B.Pal,Suresh Chandra Verma Hon'ble J.J. Munir,J.
1. Heard Sri R.C. Singh, learned Senior Advocate assisted by Sri Santosh Kumar Srivastava, learned counsel for the petitioner, learned Standing Counsel appearing on behalf of respondent nos. 1 and 2 and Sri Suresh Chandra Verma, learned counsel appearing for respondent no. 3.
2. This writ petition is directed against an order dated 30.12.1996, passed by the Deputy Director of Consolidation, Azamgarh in Revision No. 251 arising out of proceedings under Section 20 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as 'the C.H. Act'). The case of petitioner is that he is Chak holder no. 5, whereas respondent no. 3 is Chak holder no. 210. It is claimed that the said Chak was originally recorded in the name of the petitioner's father which he has inherited being his son and sole heir. It is the petitioner's case that plot no. 60/3 ad-measuring 570 kari which is part of his original holding, abuts the Azamgarh Bilariyaganj Road and located at a distance of 3 kms from the city of Azamgarh. It is claimed to be a valuable piece of land carrying a high market value. The petitioner had been proposed three Chaks by the Assistant Consolidation Officer in the Provisional Consolidation Scheme. Lateron, the Consolidation Officer by his order dated 06.05.1986 allotted two Chaks to the petitioner, instead of three as proposed. One of those Chaks included plot no. 60/3 to the extent of an area of 149 links alone, as against his original holding where the said plot bore an area of 570 links. The other Chak allotted to the petitioner comprised his original holding in plot no. 19.
3. Aggrieved by the aforesaid orders passed by the Consolidation Officer, the petitioner carried an Appeal to the Settlement Officer of Consolidation who dismissed it by a judgment and order dated 5th April, 1990. It requires to be clarified here that another Appeal against the same determination was lodged by the petitioner's father, who was alive at that time, and both these Appeals came to be decided by different orders. The Appeal filed by the petitioner's father was decided vide order dated 15.03.1995. Both Appeals met the same fate and were dismissed by the Settlement Officer of Consolidation. The petitioner filed three Revisions to the Deputy Director of Consolidation, Azamgarh that were numbered as Revision Nos. 251, 238 and 240. These Revisions were consolidated, heard and decided by a common judgment and order dated 30th December, 1996. Revision Nos. 238 and 240 were partly allowed but so far as Revision No. 251 (Ram Badan Vs. Ram Murat & Others) was concerned, it is the petitioner's case that the same was dismissed, though the operative portion of the order shows it to be partly allowed. The success in Revision nos 238 and 240 led to restoration of some further area for the petitioner on his original holding in plot no. 60/3. This writ petition is confined in its challenge to the judgment and order passed by the Deputy Director of Consolidation, rendered in Revision No. 251 and not the other revisions decided by the said judgment.
4. The petitioner's grievance primarily appears to be about plot no. 60/3 where he has demonstrated before this Court from the entries in C.H. Form 23 that he had an original holding of 570 links. It is pointed out by Sri R.C. Singh learned Senior Advocate for the petitioner, that in the second chak that includes the petitioner's original holding, comprised of plot no. 60/3, renumbered as plot no. 378, he has been allotted a total area of 321 links alone as against the original holding indicated above.
5. Sri Suresh Chandra Verma, learned counsel for the contesting respondents has disputed this submission and has pointed out that another 134 links have been allotted to the petitioner in plot no. 60/3 (old) which is evident from the order passed in a reference dated 23.10.2003, a copy of which has been filed by the petitioner as part of Annexure No. SRA 2 appended to the supplementary rejoinder affidavit dated 18th July 2019. A perusal of the said order does show that an additional 134 links have been added to the petitioner's Chak by the Deputy Director of Consolidation, vide his order dated 23.10.2003 passed in reference no. 72 pending this writ petition.
6. Sri R.C. Singh has disputed this submission to say that the aforesaid additional area of land that was Bachat has been shown which does not add to the total area of his holding or restore his original holding in plot no. 60/3 (old) to the dimensions and location as it existed. What is important to note is the fact that it is the petitioner's case that the land in dispute, that is to say plot no. 60/3, ad-measuring 570 links is a valuable roadside land wherefrom 137 links have been taken away and given to the third respondent. Learned counsel for the petitioner submits that roadside land of commercial value which plot no. 60/3 certainly is, either ought to be excluded from consolidation operations altogether or the whole of it should be included in the petitioner's Chak. In this connection learned counsel for the petitioner has referred to a circular dated 26.05.1981, issued by the Consolidation Commissioner U.P, a copy of which is on record as Annexure 6 to the writ petition.
7. Learned counsel for the respondent on the other hand says that the 137 links of plot no. 570 that have been given to him are those that abut his Abadi and lie in front of it. It is land appurtenant to the third respondent's Abadi, where he has his dwelling unit. It is on those considerations that a relatively small area of 137 links was taken away from the petitioner's holding, and rightly so, by the Deputy Director of Consolidation, in the learned Counsel's submission.
8. Sri R.C. Singh, learned Senior Advocate in support of the petitioner's case has placed reliance upon a decision of this Court in Ram Prasad vs. Deputy Director of Consolidation, Allahabad and others, 2006 (100) RD 434,where it has been held:-
"5. In the present case, the consolidation authorities while preparing the consolidation record did not consider the principles laid down under the U.P.C.H. Act and illegally included the land in dispute and allotted the same in the Chak of Opposite Party No. 2 who has no concern with the original holding of the petitioner. The appeal preferred by the petitioner against the allotment of his original holding situated on the main road to contesting Opposite Party No. 2, illegally, the appellate authority passed an order dated 9th December, 1999 strictly in accordance with the principles governing consolidation scheme. The Deputy Director of Consolidation erred in law in holding that as no objection was filed by the petitioner, the land in dispute situated on the main road was rightly allotted to a stranger. It was duty of the consolidation authorities to exclude the land situated on the main road and of commercial value from the consolidation operation. Land in dispute was wrongly included in the consolidation scheme. In any case this should have been allotted to the original tenure-holder, but it was wrongly allotted in favour of contesting Opposite Party No. 2 who has no concern with the land in dispute and has evil eyes on the land of the petitioner. The Settlement Officer, Consolidation on appeal rightly excluded the land in dispute from the consolidation scheme as a result of which land in dispute was allowed to be continued With the petitioner who is original tenure-holder. The order passed by the Settlement Officer, Consolidation was strictly passed in accordance with the Government order dated 26th May, 1981 which is part of the consolidation scheme and was issued under the provision of the U.P.C.H. Act. Deputy Director of Consolidation erred in law in reversing the order of the Settlement Officer, Consolidation Without considering the Government Order dated 26th May, 1981."
9. Learned Senior Counsel appearing on behalf of the petitioner has also placed reliance upon a decision of this Court in Ramadhar Singh and Another vs. Deputy Director of Consolidation and others, 2009 (106) RD 772, where it has been held:
"7.......There cannot be any dispute that a tenure holder is entitled to have his chak on his plot, which is adjoining to the road. The Consolidation Officer allowed the objection of respondent No. 3 and allotted him plot No. 45, which was taken out by the Settlement Officer Consolidation without giving any reason. The Deputy Director of Consolidation has rightly taken the view that the respondent No. 3 could not have been removed from his chak at plot No. 45. There was sufficient justification for allowing the chak of respondents No. 3 and 4 adjoining to each other, they being husband and wife. The submission of the petitioner that the case of the petitioner was not considered by the Deputy Director of Consolidation, is not correct. It was the petitioners who were allotted plot No. 45 by the Settlement Officer Consolidation. The Deputy Director of Consolidation held that there was no reason for removing the chak of the respondent No. 3 from plot No. 45 which was adjoining the road. The above reason was the basis of the order of the Deputy Director of Consolidation. From the order of the Settlement Officer Consolidation, it is clear that the Settlement Officer Consolidation did not give any reason for removing the chak of the respondent No. 3 from plot No. 45. The Deputy Director of Consolidation emphasising on the above fact, has rightly allowed the revision. The respondents in their affidavit have also brought on record a site plan of different plots which were original holdings of the parties and their allotment which site plan matches: with the chak map filed by the petitioner as Annexure-4. A perusal of the chak map and site plan indicates that plots No. 1520, 45, 37, 38, 39, 45 were the plots on the chak-road. The plot No. 45 was the only plot which was given to the respondent No. 3 which was on the chakroad...."
10. To the same end, reliance has been placed on behalf of the petitioner on a more recent decision in Sanjay and Another vs. Deputy Director of Consolidation, 2013 (121) RD 561, where the question of priority in allotment of a roadside land has been dealt with by this Court thus:
10. So far as the arguments of the counsel for the petitioners that findings recorded by Consolidation Officer and Settlement Officer Consolidation have not been considered by Deputy Director of Consolidation, is concerned, the Consolidation Officer and Settlement of Consolidation have illegally failed to notice the grievances and arguments of Pankaj that he was deprived from the roadside land. His arguments has been meeted out by Settlement Officer, Consolidation, by holding that plot no. 323 is adjacent to the roadside and his chak on plot no. 324 is adjacent to plot no. 323. The Settlement Officer, Consolidation has illegally failed to notice that plot no. 323 was already allotted in the chaks of the other persons, as such, Pankaj will not get frontage on the roadside as his chak on plot no. 324 was in the back side. The Consolidation Commissioner, U.P. has issued a Circular to allot roadside land to the original tenure holder. This Court has also consistently held that roadside land has to be allotted to original the tenure holder. The order of Settlement Officer Consolidation and Consolidation Officer were contradictory to the law laid down by this Court as well as circular of Consolidation Commissioner U.P. The findings of the Consolidation Officer and Settlement Officer, Consolidation were not worth reliable by the Deputy Director of Consolidation.
11. Sri Suresh Chandra Verma, learned counsel appearing on behalf of respondent No. 3 has reposed faith in the decision of this Court in Smt. Uttama Devi @ Dayamati vs. Deputy Director of Consolidation, Basti and others, 2002 (93) RD 239, where it has been held:
6. So far as the demand of Smt. Uttama Devi is concerned, that is based on the Government Order, referred to above. The said Government Order is nothing but a guideline for allotment, which has got no statutory force nor the provisions of the Act, particularly Section 19, stand amended by the said order. Major portion of the plot No. 30, i.e., 3 bighas 18 biswas and 18 biswansis, has already been allotted to the petitioner, therefore, in my opinion the judgment and order passed by the Deputy Director of Consolidation does not suffer from any infirmity or illegality. He has recorded cogent reasons for the adjustment made by him in the chaks of the parties. He has done justice between the parties while making allotment/adjustment in the chaks of the parties.
12. Learned counsel for the respondent no. 3 has placed further reliance upon a decision of this Court in Jagdish Sharma and others vs. Addl. Collector (F&R)/D.D.C. and others, 2015 (128) RD 646. He has referred to paragraph 10 of the report, where it has been held:
10. I have considered the arguments of the counsel for the parties and examined the record. A perusal of objection of Sharejang shows that he was claiming for change in his second chak and for allotment of part of its valuation near his original holdings of plot 8950 and remaining valuation on his original holding of plot 1518. In the objection, the petitioner was not impleaded as party nor allotment made to him on plot 1517/3 was challenged. Consolidation Officer without considering possibility for allotment of chak to Sharejang on plot 1518, has disturbed the chak of the petitioner. By order of Consolidation Officer, Sharejang was allotted second chak on plots 1517/3 (area 1-2-5 bigha), 1635 (area 0-1-9 bigha), 1636 (area 0-13-4 bigha) and 1637/2 (area 0-5-10 bigha) (total area 1-12-8 bigha). Sharejang was satisfied and did not file any appeal. By the order of Deputy Director of Consolidation, area of chak of Sharejang on plot 1517/3 has been exceeded 2 bigha. Deputy Director of Consolidation has failed to examine original demand of Sharejang and entertained a totally new demand in revision although in chak carvation matter, a party should not allowed to change his original demand.
13. Further reliance has been placed by learned counsel for the third respondent on a decision of this Court in Ram Shanker vs. Deputy Director of Consolidation, Basti and others , 2006 (101) RD 247. He has emphasized what was held in Ram Shanker (supra) in paragraph 5 of the report which reads thus:
5. Consolidation proceeding settles dispute for generations to come and in case a person is allotted a chak in front of others residential house, it may cause great and irreparable injury and inconvenience to both the parties for decades to come. Therefore, Deputy Director of Consolidation being last Court of consolidation proceeding is bound to consider all grievances of the parties raised before him as well as to consider whether principle of allotment of chaks to the parties including private source of irrigation was followed or not..
14. This Court has keenly considered the submissions advanced on both sides. The Court has also been taken through the map, drawn up post consolidation, which shows that new khasra nos. 369, 370 and 378 that are carved out of old no. 60/3, including some part of Gaon Sabha land, do lie abutting the highway. It is indeed, valuable land. Some part of it does include that land which was Gaon Sabha land where the rights of the third respondent could be adjusted, without any objection from the petitioner. However, so far as land that was originally part of plot no. 60/3 is concerned, it is certainly valuable and roadside land.
15. The consensus of principle that emerges from the decisions in Ram Prasad (supra), Ramadhar Singh (supra) and Sanjay and another (supra) is 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. There is no finding recorded by the Deputy Director of Consolidation or the Settlement Officer that allotment of the entire area of Khasra No. 60/3 (old) to the petitioner, that is part of the petitioner's original holding lies in front of the third respondent's Abadi and would cause the third respondent some great inconvenience or irreparable injury as spoken of in the decision of this Court in Ram Shanker (supra). The remark of the Deputy Director of Consolidation that though it is not appropriate to include any part of this plot in the third respondent's chak as it is not part of his original holding, considering his Abadi, the same may not be disturbed as ordered by the Settlement Officer of Consolidation, is flawed. To this, is added a remark that, therefore, it would not be proper to remove the part of the plot in dispute included in the Chak of the third respondent. For one, it is not reason enough to deprive the petitioner of a substantial part of his valuable roadside land in favour of the third respondent. Moreover, a look at the confirmed consolidation map shows that between one part of old Khasra No. 60/3 (now renumbered as 369) and included in the third respondent's chak and the third respondent's Abadi, there is a sector road running through. This confirmed map is on record as part of Annexure No. SRA-1 to the supplementary rejoinder affidavit dated 18th July, 2019 filed on behalf of the petitioner. There is no dispute about this.
17. The added fact that a sector road now runs through between those plots where the third respondent claims his Abadi and old Khasra No. 60/3 that is the petitioner's original holding, occurrence of even a slight prejudice to the third respondents, let alone a compelling circumstance that may leave no option with the Authorities but to deprive the petitioner of some part of his valuable roadside land, part of Khasra No. 60/3 (old), is a conclusion that cannot be said to be a legitimate exercise of discretion by the Consolidation Authorities, one way. Here is a case where the Deputy Director of Consolidation affirming the Settlement Officer of Consolidation has deprived the petitioner of valuable roadside land in violation of settled legal principles that valuable roadside land is either to be excluded from consolidation operations or included in the Chak of that Chakholder, who held it as original holding. This principle is to be departed from for very compelling reasons that are not forthcoming in this case.
18. In the result this writ petition succeeds and is allowed. The impugned order dated 30.12.1996 passed by the Deputy Director of Consolidation, Azamgarh in Revision No. 251, Ram Badan vs. Ram Murat and others is hereby quashed. It is further ordered that the entire area of Khasra No. 60/3 (old) shall be included in the petitioner's chak which already carries the remainder area of the aforesaid plot. Necessary adjustment to parties Chaks shall be made by the Deputy Director of Consolidation. There there shall be no order as to costs.
Order Date :- 6.11.2019 Vikram