Allahabad High Court
Radhey Shyam And 2 Others vs State Of U.P. And 4 Others on 24 February, 2023
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 5 Case :- WRIT - B No. - 715 of 2023 Petitioner :- Radhey Shyam And 2 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rajesh Kumar Counsel for Respondent :- C.S.C,Tripathi B.G. Bhai Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for petitioners, learned Standing Counsel representing respondents No. 1 to 4 and learned counsel for private respondent No.5.
2. Grievance of the petitioners is that Deputy Director of Consolidation has illegally allowed the restoration application filed on behalf of contesting respondents, vide order dated 13.9.2022, against the previous order dated 13.12.2005. Petitioners are aggrieved as well with the order dated 4.1.2023 passed by the Deputy Director of Consolidation by which restoration application filed by them against the order dated 13.9.2022 has been rejected.
3. Facts culled out from the averments made in the writ petition are that the present writ petition is arising out of restoration application filed in the reference proceeding. Settlement Officer of Consolidation has passed order dated 24.8.1985 in appeal, arising out of proceeding under Section 21(1) of U.P.C.H. Act, filed on behalf of respondent No.5 proposing the entire area of his original holding i.e. plot No.216 in his chak. Said order became final up to the stage of Deputy Director of Consolidation on revision being filed on behalf of the petitioners. It appears that at subsequent stage, petitioners have filed one another revision to adjust the valuation of Rs.2.11 paise which was left to be adjusted in their chak during the provisional consolidation scheme. Aforesaid revision was allowed by order dated 18.11.2002 passed by Deputy Director of Consolidation proposing the valuation of Rs.2.11 paise over plot No.729 M having measuring area 0.070 hectare. In pursuance of order dated 24.8.1995 and order dated 18.1.2002, a reference proceedings had been finalized by order dated 25.4.2005. Amendment chart appended to the reference order dated 25.4.2005 reveals that contesting respondent No.5 (chak holder No.324) has been proposed chak over plot No.216 and 193. Petitioners (chak holder No.269) have been given area over plot No.216 in place of plot No.729/7M measuring area 0.070 hectare, having valuation of Rs.2.11 paise. Having been aggrieved against the reference order dated 25.4.2005 respondent No.5 has filed the restoration application alleging therein that after the order dated 24.8.1995 no area remained over plot No.216, which has finally been adjudicated upon in his favour, therefore, by the reference order dated 25.4.2005 petitioners have illegally been allotted chak over plot no.216. It is further averred in the restoration application that the order dated 25.4.2005 has been passed ex-parte without affording him any opportunity of hearing. Deputy Director of Consolidation, vide its impugned order dated 13.09.2022, has allowed the restoration application dated 13.12.2005 and, simultaneously, slightly modified the reference order dated 25.4.2005 by which area in question having valuation of Rs.2.11 paise belongs to petitioners has been adjusted over plot No.193 towards the south side adjoining the chak road and the respondent No.5 has been shifted over his original holding i.e. plot No.216, meaning thereby area of both the parties have been interchanged between them. Deputy Director of Consolidation, on restoration application being filed on behalf of the petitioners against the order dated 13.9.2022, has dismissed the restoration application, vide order dated 4.1.2023, with categorical finding that previous order dated 13.9.2022 was passed after hearing both the parties on merits, therefore, there is no occasion to entertain the restoration application against the order dated 13.9.2022 passed on merits.
4. Learned counsel for petitioners submits that the Deputy Director of Consolidation has illegally passed the order dated 13.9.2022 sans opportunity of hearing accorded to the petitioners. Reference order dated 25.4.2005 was validly passed in favour of the parties by which petitioners have been given the area having valuation of Rs.2.11 paise over the plot no.216. It is further submitted that the restoration application moved by petitioners against the order dated 13.9.2022 has illegally been rejected by the Deputy Director of Consolidation by order impugned dated 4.1.2023. It is next contended that the order dated 13.9.2022 and 4.1.2023 passed by Deputy Director of Consolidation are liable to be quashed being illegal, unwarranted under the law and tainted with irregularities.
5. Per contra learned counsel for respondent No.5 has contended that the plot No.216 area 0.492 hectare is original holding of the respondent No.5. It is next contended that in pursuance of the order dated 24.8.1995 entire area of original holding of the respondent No.5 i.e. plot No.216 has been given to him and no surplus area was left over there as a bachat land, therefore, petitioners have illegally been allotted area over plot No.216 in pursuance of the reference order dated 25.4.2005. It is next contended that when the petitioners have lost the matter with respect to the plot No.216 they have played mischief to get the area over the plot No.216 through reference order dated 25.4.2005. It is next contended that instant writ petition is liable to be dismissed in limine being misconceived and devoid of merits.
6. Having considered the rival submissions advanced by learned counsel for respective parties and perusal of record, it reveals that plot No.216 area 0.492 hectare belongs to respondent No.5. During the provisional consolidation scheme respondent No.5 has been allotted lessor area over the plot No.216 and the present petitioners were given Udan chak over there. Arising out of proceeding under Section 21(1) of U.P.C.H. Act, Settlement Officer of Consolidation, vide order dated 24.8.1995 passed in appeal filed on behalf of respondent No.5, has completed the area of plot No.216 and proposed it in the chak of the respondent No.5. Order dated 24.8.1995 passed by Settlement Officer of Consolidation has attained finality up to the stage of Deputy Director of Consolidation between the parties. In this view of the matter respondent No.5 is claiming maximum area over plot No.216. So far as the petitioners are concerned, they have lost the matter up to the stage of Deputy Director of Consolidation. At later stage Deputy Director of Consolidation, vide order dated 18.11.2002, has adjusted the valuation of Rs.2.11 paise over plot No.729M, which was left to be adjusted in their chak No.269 during the provisional consolidation scheme. While preparation of reference the valuation of plot No.729M was exchanged with the area of plot No.216. In this backdrop of the fact petitioners are also claiming their right over Plot No.216.
7. Considering all these aspects of the matter Deputy Director of Consolidation, in its order dated 13.9.2022, has given a categorical finding that in reference proceeding petitioners have illegally been given chak over plot No.216 which was finally adjudicated upon in favour of the respondent No.5. It is further observed that the plot No.216, which is original holding of respondent No.5, is commercial land having high valuation. Deputy Director of Consolidation has returned the finding of fact that there was no reserved land (Bachat land) over the plot No.216. The area which has been shown as reserved land over plot No.216 is, in fact, imaginary which was rectified by the Settlement Officer of Consolidation. Therefore, the area which has been shown as a reserved land in the reference proceeding should have been allotted in the chak of Sukhdev (respondent No.5). It is further observed that proposing chak to the petitioners over the plot No.216 cannot be said to be justified in any manner. An observation as made by Deputy Director of Consolidation, prima facie, appears to be correct. Petitioners have lost the dispute with respect to the plot No.216 up to the stage of Deputy Director of Consolidation. Even by order dated 18.11.2002 they have been allotted area over the plot No.729M, however, in the reference proceeding they became successful while exchanging the valuation of plot No.729M with the equal valuation over the Plot No.216. There is no justification of exchange of valuation between the valuation of plot No.729M with the equal valuation over the plot No.216. Petitioners utmost are entitled for valuation of Rs.2.11 paise, in pursuance of the order dated 18.11.2002 passed by Deputy Director of Consolidation, over the plot No.729M. Deputy Director of Consolidation, vide order dated 13.9.2022, has rightly rectified the aforesaid mistake and given area of plot No.216 to the respondent No.5, who is validly entitled thereto in pursuance of the order dated 24.8.1995 passed by Settlement Officer of Consolidation. While modifying the order dated 25.4.2005 petitioners have been proposed area having valuation of Rs.2.11 paise over the plot No.193 towards the south side abutting chak road, which is also valuable and potential for the development.
8. Next submission raised by learned counsel for petitioners with respect to the order dated 13.9.2022 being ex-parte passed against the petitioners is unfounded on the facts and circumstances of the present case. Order dated 13.9.2022 evence the filing of objection dated 19.7.2006 on behalf of Ramdas (predecessor in the interest of the petitioners). In deciding the restoration application dated 13.12.2005, Deputy Director of Consolidation has carefully considered the objection dated 19.7.2006 filed at the behest of the Ramdas. Deputy Director of Consolidation has not committed any manifest error in rejecting the restoration application dated 26.9.2022 filed on behalf of the petitioners, vide order impugned dated 04.1.2023, against the order dated 13.9.2022.
9. In this conspectus as above, I am of the considered view, that the Deputy Director of Consolidation has rightly modified the reference order dated 25.4.2005 by its subsequent order dated 13.9.2022 after affording opportunity of hearing to the parties concerned. Therefore, there is no occasion to recall the order dated 13.9.2022 treating it as an ex-parte passed against the petitioners. There is nothing on record to demonstrate as to how petitioners are prejudiced, or if there is any likelihood of causing miscarriage of justice to them, owing to the orders impugned passed by Deputy Director of Consolidation. Learned counsel for petitioners has failed to substantiate his submissions as advanced by him in assailing the orders impugned. I do not find any justifiable ground to interfere in the orders under challenge. There is no illegality, perversity and the ambiguity in the orders under challenge so as to warrant the indulgence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.
10. Resultantly instant writ petition, being misconceived and devoid on merits, is dismissed with no order as to the costs.
Order Date :- 24.2.2023 Md Faisal