Allahabad High Court
Ram Autar And 9 Others vs State Of U.P. And 3 Others on 20 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 52 Case :- WRIT - B No. - 3270 of 2022 Petitioner :- Ram Autar And 9 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Manish Dev,Kripa Shanker Yadav Counsel for Respondent :- C.S.C,Arun Kumar Pandey,Brajesh Shukla Hon'ble Chandra Kumar Rai,J.
Re: Impleadment Application dated 7.12.2022.
Heard learned counsel for the parties.
In view of the averments made in the affidavit, the impleadment application is allowed. Learned counsel for the petitioners is permitted to implead Smt. Shakuntala, Rajpal and Brijpal be impleaded as respondent nos. 5 to 7 in the writ petition during the course of the day.
Re: Order on Writ Petition
1. Heard Sri Manish Dev, counsel for the petitioners, Sri Anil Kumar Aditya, holding brief of Sri Brajesh Shukla, counsel for respondent no.3, Sri Arun Kumar Pandey, counsel for respondent no.4 and the respondent nos. 1 & 2.
2. With the consent of the learned counsel for the parties, the writ petition is being heard and disposed of without inviting counter affidavit.
3. Brief facts of the case are that petitioner's father Chetram was Chak holder No 111 and plot No. 257 is the largest original of the petitioner's father and source of irrigation is situated in plot no.- 257. Petitioner's father Chetram died on 28-12-2015 and petitioner no. 1 is the legal heir of the deceased Chetram accordingly inherited his right and title. Petitioner No. 2 is Chakholder no. 35, Petitioner no. 3 is Chak holder No.- 226, Petitioner No. 4 is Chakholder no. 285, father of petitioner no. 5 and 6 was Chak holder no. 179, Petitioner no. 7 is Chak holder no. 242, Petitioner no. 8 is Chak holder no.-8, Petitioner No. 9 is Chak holder no.-125, Petitioner no. 10 is Chak holder no. 127. Respondent no. 3 is Chak holder no.114 and the original holding of respondent no. 3 are 259, 255/1 and 255/2. Against the proposal of Assistant Consolidation Officer objections were filed by petitioner No. 4, father of petitioner nos. 5 and 6, Petitioner no. 7, Petitioner no. 10 as well as respondent no. 3. Consolidation officer vide order dated 31-12-2015 decided 11 objections and allowed the objection of respondent no. 3. Against the order dated 31-12-2015 two appeals were filed before settlement officer consolidation who allowed the same by common order dated 28-03-2016 excluding plot nos. 252 and 257 from the Chak of respondent no. 3 and allotted her original plot nos. 255/1 and 255/2. Against the appellate order dated 28-03-2016 respondent no. 3 filed Revision under Section 48 of U.P.C.H. Act in which dead person Jaipal was impleaded as opposite party no. 1 and one Babu Ram Sharma was impleaded as opposite party and revisional Court allowed the revision vide order dated 17-10-2016 by which petitioner's chak has been disturbed without notice and opportunity of hearing to the petitioner. Restoration/recall application filed by petitioners have been also rejected vide order dated 09-09-2020 and 29-09-2021 hence this writ petition.
4. Counsel for the petitioners submitted that the chak of the petitioners has been disturbed, without impleading them in revision, even otherwise the opposite party No.1, who was impleaded in the revision, was already dead but the revision has been allowed against dead person as well as without notice to the petitioners. It is also submitted that against the revisional order, a restoration application was filed by the petitioners but the claim of the petitioners has not been examined as prayed in their restoration application. He further submitted that the impugned revisional order be set aside and the matter be remitted back before the authority concerned to decide the revision afresh on merits, after considering the comparative hardship of the petitioners.
5. On the other hand, Sri Anil Kumar Aditya, counsel for contesting respondent no.3 submitted that although the petitioners were not impleaded in the revision but at the time of deciding the restoration application twice by the Deputy Director of Consolidation, claim of the petitioners has been examined and the chak adjustment has been made to the tenure holders, considering the provisions of Section 19 of U.P. C.H. Act.
6. I have considered the arguments advanced by counsel for the parties and perused the records.
7. There is no dispute about the fact that in chak revision under Section 48 of the U.P. C.H. Act has been decided, without impleading the petitioners and the chak of the petitioners has been disturbed under the revisional order. Perusal of Section 48 of the U.P. C.H. Act will be relevant which reads as under:-
"48. Revision and reference. - (1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order other than an interlocutory order passed by such authority in the case or proceedings, and may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.
(2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3).
(3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1)"
8. Perusal of Section 48 of the Act reflects that opportunity of hearing must be afforded to the parties, before passing order under Section-48 of U.P.C.H. Act.
9. This Court in Dharamdeo and others versus Deputy Director of Consolidation and others reported in 2003 (95) R.D 701 has held that while allowing the revision, the Deputy Director of Consolidation should consider the comparative hardship of both the parties, but in the present case, revisional court has considered the case of the contesting respondent and disturbed the chak of the petitioners.
10. Considering the entire facts and circumstances of the case, the impugned revisional orders passed by the Deputy Director of Consolidation dated 2.9.2021 / 9.9.2020 / 17.10.2016 are liable to be set aside and the same are hereby set aside and the matter is remitted back before the Deputy Director of Consolidation/respondent no.2 to restore the revision to its original number and decide the same afresh, after passing necessary order for substitution / impleadment of the tenure holders who are necessary party in the matter. The revisional court shall decide the revision, after notice and opportunity of hearing to the parties, expeditiously, preferably within a period of 3 months from the date of production of the certified copy of the order, in accordance with law.
11. Respondent nos. 5 to 7 has not been heard by this court, as such, revisional court shall issue notices to them before passing final order in Revision. The main contesting party is respondent no.3 who is presented by counsel through caveat application. Respondent no.3 has filed revision only under Section 48 of the U.P. C.H. Act in which the impugned order has been passed.
12.The present writ petition stands allowed to the extent indicated above.
Order Date :- 20.12.2022 C.Prakash/Divya