Adharey vs Deputy Director of Consolidation, Basti and others

S.K. Singh, J.—Heard Sri K.S. Pandey, learned Advocate in support of this application and Sri Tripathi B.G. Bhai, learned Advocate who appears for the petitioner.

This is an application to recall the order passed by this Court by which writ petition was decided on merits and that was allowed. The ground is that earlier Counsel could not mark the case, and therefore, he could not argue the matter.

Be as it may, Sri Tripathi B.C. Bhai, learned Advocate who appears for the petitioner being very fair submits that in the interest of justice if matter is reheard then he possibly can have no objection to it. In view of the aforesaid, this Court heard the matter on merits again.

Writ petition was allowed on two grounds:

(i) None of the original plot of the petitioner is given in his chak and thus the chak became complete Udan and thus mandate of section 19 of U.P.C.H. Act that chak is to be given on the largest part of holding has been violated.

(ii) Presumption of the Deputy Director of Consolidation about some irrigation facility of the revisionist near the plot is not found to be correct As there was no such ground/pleading by the revisionist before the Revisional Court.

Sri Pandey, learned Advocate who argued the matter of this application submits that although this is correct that not a single inch of the original holding is in the chak of the petitioner but cosharers were not impleaded and to make the chak of the applicant rectangular changes were made by the Deputy Director of Consolidation.

So far impleadment of cosharer is concerned suffice it to say that so far respondent is concerned he has no concern with the plot in question. Petitioner claimed and was given his own share in those plots besides the share in the plots having been given to the cosharers. Respondent possibly cannot object to it. If contention of the applicant about the claim of making the chak rectangular is considered to be correct then some changes may be permitted but on the facts neither from the judgment of the Deputy Director of Consolidation from the facts so noted nor from the ground of revision this Court can find any such whisper and thus it is clear that only to attract the Court to have a lenient approach towards the applicant side this impressive factual argument without any foundation was thrown for the first time at the time of hearing of writ which cannot be entertained.

Thus, so far the fact goes presumption on which Deputy Director of Consolidation disturbed the petitioner not being correct presumption on facts and by the impugned adjustment petitioner having been given complete Udan chak, having being excluded largest part of holding, if the judgment of Deputy Director of Consolidation which was in clear violation of section 19 of U.P.C.H. was set aside with the result that order of the Settlement Officer Consolidation stood restored, then this Court cannot pass a different order.

Thus respondent side having been heard on the merits this Court proposes to allow the application for recall and at the same time proposes to maintain the earlier order, for the reasons so given in that order and for the additional reason so mentioned in this order.

Writ petition thus stands allowed.