Allahabad High Court
Chandrashekhar And 3 Others vs State Of U.P. And 4 Others on 5 May, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved on 25.4.2023 Delivered on 5.5.2023 Court No. - 18 Case :- WRIT - B No. - 805 of 2023 Petitioner :- Chandrashekhar And 3 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Dharmendra Kumar Pandey,Murli Dhar Mishra Counsel for Respondent :- CSC,Desh Ratan Chaudhary Hon'ble Chandra Kumar Rai,J.
Heard Mr. Murli Dhar Mishra assisted by Mr. Dharmendra Kumar Pandey, learned Counsel for the petitioners, learned Standing Counsel for the State-respondents and Mr. Desh Ratan Chaudhary, learned Counsel appearing for respondent nos. 4 and 5.
Brief facts of the case are that petitioner No.1 is chak holder No. 65. Petitioner No.2 is chak holder No. 130. Petitioner No.3 is chak holder No. 230 and petitioner No.4 is chak holder No. 227. Respondent No.4 is chak holder No.110, Respondent No.5 is chak holder No.114. Original holdings of petitioner no.1 are Plot No.734M, 792/1M, 796M along with several other plots. Petitioner No.1 was proposed two chaks at the Assistant Consolidation Officer stage first chak was proposed on Plot No.247/2M and 250M. Second chak was proposed on Plot No.605/2M, 730M, 731M and 732M. Petitioner No.2 was proposed two chaks, first chak on Plot No.247/2M, 250M, 251M, 252M and second chak on Plot No.540/1, 244/1M, 560M, 561M. Petitioner No.3 was also proposed two chaks, first chak on Plot No.247/2M and 250M and second chak on Plot No.455M, 456M, 558M, 559M, 560M. Petitioner No.4 was also proposed two chaks, first chak on Plot No.528/1M, 529M, 530, 532M and second chak on Plot No.148M along with other plots. Respondent No.4 is original tenure holder of Plot No. 380 along with several other plots and he was proposed two chaks at the stage of Assistant Consolidation Officer. First chak was proposed on Plot No.356M, 357M, 358M and 384M. Second chak was proposed on Plot No.605/7M, 796M, 797M. Respondent No.5 is original tenure holder of Plot No.533 along with other plots and she was proposed two chaks by Assistant Consolidation Officer. First chak was proposed on 532M, 533M, 546/2M, 547/3M. Second chak was proposed on Plot No.904/1M. Copy of the CH-Form 23 of the respective parties are annexed as Annexure No.SA1 to the supplementary affidavit filed by petitioners. Against the proposal of the Assistant Consolidation Officer, chak objections were filed by the tenure holders including the petitioners under Section 21(1) of the U.P. Consolidation of Holdings Act hereinafter referred as a U.P.C.H. Act. The prayer made by the petitioners in the chak objection was that the Plot No.247 proposed to them be taken away and they should be given chak on original Plot No. 527, 551, 552, 553, 520 as well as on Plot No. 547 which is situated in front of the petitioners' house. The chak objections of the petitioners were registered as Case No.129, 130, 128 Consolidation Officer vide order dated 13.07.2021 allowed the petitioners' objection and allotted Plot No.547 to the petitioners. Respondent Nos. 4&5 filed appeal against the order of the Consolidation Officer dated 13.07.2021 under Section 21(2) of the U.P. C.H. Act which were registered as Appeal No.214 of 2021 Daya Shankar vs. Chandrashekhar & others and Appeal No.213 of 2021, Smt. Dev Kali vs Roop Chand & others. The Settlement Officer Consolidation heard both the appeals together and made the spot inspection also. The Settlement Officer Consolidation vide order dated 22.09.2021 allowed the appeal in part filed by respondent Nos. 4&5 considering the original holding of the tenure holders, share of the tenure holders in the original plots as well as the shape of the plots allotted to the tenure holders was also taken into consideration. Against the appellate order dated 22.09.2021, petitioners filed revision before Deputy Director of Consolidation under Section 48 of the U.P. C.H. Act which were numbered as revision no. 522/2022 ( Chandrashekhar and Others Vs. Dev Kali) revision No. 523/22 Chandrashekhar and Others Vs. Daya Shankar). The aforementioned revisions were consolidated and heard together. Deputy Director of Consolidation has also made the spot inspection in presence of the parties and vide order dated 30.11.2022 dismissed the aforementioned revision filed by the petitioners. Hence this writ petition.
Counsel for the petitioners submitted that chak objection filed by petitioners was allowed by Consolidation Officer considering the provisions of Section 19 of the U.P.C.H. Act but Appellate Court has arbitrarily interfered with the order of the Consolidation Officer without considering the case of the petitioners. He further submitted that original holdings situated adjacent to the petitioners' house has been given to respondent nos. 4 and 5 without any justification. He further submitted that revision filed by the petitioners has also been dismissed arbitrarily. He further submitted that Deputy Director of Consolidation has not made the spot inspection and passed the impugned revisional order mentioning that he has made the spot inspection. He submitted that the order which was passed by the Consolidation Officer for making allotment of chak to petitioners as well as the contesting respondents was in accordance with law and no interference was required against the order of the Consolidation Officer while exercising appellate jurisdiction. He submitted that impugned appellate order and the revisional orders are liable to be set aside and the order passed by the Consolidation Officer be affirmed.
On the other hand, Mr. Desh Ratan Chaudhary appearing for respondent nos. 4 and 5 submitted that petitioners as well as respondent no.4 belongs to same family and are co-sharer. He further submitted that respondent no.4 is having half share in each plot while petitioner nos. 1,2 and 3 are having 1/24 share and petitioner no.4 is having 1/8 share. He further submitted that during consolidation operation, the petitioners have got their share divided and claimed separate chaks. Counsel for the respondent nos. 4 and 5 placed the sketch map of the different stages of consolidation operation in order to demonstrate that the chak which has been allotted by the Settlement Officer Consolidation is in accordance with the provisions contained under Section 19 of the U.P.C.H. Act. Copy of the chak map has been annexed as Annexure No. SCA1 to the short counter-affidavit filed on behalf of the respondent nos. 4 and 5. He further submitted that answering respondent no.4 has been allotted chak towards the Northern side of the canal (nahar) while petitioners have been allotted chak at final sides of the canal (nahar). He further submitted that in the Southern side of the village, pitch road is situated parallel to canal (nahar) which goes to Eastern side of the village where commercial area and village market is situated. He further submitted that petitioners have been allotted their chak on pitch road, as such, the petitioners' interest are not affected in any manner by the allotment made by Appellate Court. He further submitted that original holding of respondent no.5 are plot No. 533, 545/1, 546/2 and respondent no. 5 is also co-sharer in plot Nos. 49, 63/2, 71, 77, 80, 81 and 82 where her abadi is situated. He further submitted that petitioner nos. 1,2 and 3 have been allotted three small chaks by the Consolidation Officer over plot No. 447 accordingly in appeal, the Settlement Officer Consolidation after considering every aspect of the case has allowed the appeal filed by contesting respondents considering the interest of both parties which requires no interference. He submitted that writ petition filed by petitioners is liable to be dismissed.
I have considered the arguments advanced by learned Counsel for the parties and perused the records.
There is no dispute about the fact that chak objection filed by the petitioners was allowed and chak as proposed by the Assistant Consolidation Officer has been altered. There is also no dispute about the fact that chak appeal filed by respondent nos. 4 and 5 has been allowed and the chak revision under Section 48 filed by the petitioners has been dismissed.
I have perused the CH Form 23 of the respective parties as well as the sketch map annexed as SCA1 by the respondent nos. 4 and 5.
The perusal of the CH Form 23 of the respective parties as well as the sketch map annexed along with the supplementary counter affidavit reveals that petitioners and contesting respondents are co-sharer as well as both of them are big tenure holders. The sketch map of the Settlement Officer Consolidation stage appears to be just and proper and petitioners as well as the contesting respondents are connected with the pitch road and the canal (nahar) . The shape of the chak of Settlement Officer Consolidation stage is also fit for cultivation. So far as the, Consolidation Officer stage is concerned, the sketch map reveals that petitioners have been given chak in the mid of the chak of the respondent no.5 which cannot be cultivated in any manner by the respondent no.5 and the same shall be constant source of trouble for both parties.
It is also material that in the allotment of chak matter, it is not possible that every tenure holder should be given their original plots as well as plot near the abadi or near the house but as far as possible the claim should be considered by the consolidation authorities. Deputy Director of Consolidation has also recorded finding of fact that alleged Gomti situated near plot No. 547 has been set up during consolidation operation, as such, no reliance can be placed upon the same for allotment of chak to the parties. The finding recorded by revisional while deciding the revision will be relevant for perusal which is as under:-
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30/XI/2022 ( ???? ?????? ????) ??? ?????????? (??-??????)/ ?? ?????? ???????, ?????????"
In the instant matter, the perusal of the chak map as well as the order passed by the Settlement Officer Consolidation and Deputy Director of Consolidation reveals that Appellate Court/ Revisional Court have considered the comparative hardship of both parties and passed the order taking into consideration the provisions of Section 19 of the U.P.C.H. Act. There cannot be better consideration of the dispute relating to allotment of chak matter as done under the impugned orders.
Considering the entire facts and circumstances, no interference is required against the impugned order. Writ petition has no merit and the same is accordingly dismissed.
Order Date :- 5.5.2023 Vandana Y.