Awadhesh Kumar and Others vs Dy. Director of Consolidation and Others

Ram Surat Ram (Maurya), J.—Heard Sri R.C. Singh and Sri P.N. Tripathi, for the petitioners and Sri M.N. Singh, for the contesting respondents. The writ petition has been filed against the orders of Settlement Officer Consolidation (respondent-2) dated 4.5.2013 and Deputy Director of Consolidation (respondent-1) dated 1.11.2013, passed in chak allotment proceedings, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

Admitted facts are that village Asadh, Pargana Kaswar Raja, district Varanasi, where land in dispute is situated, was placed under consolidation operation by notification dated 6.9.1978, u/s 4 of the Act. The village was notified u/s 9 on 31.7.1979, u/s 20 on 10.8.1981. Possession over the confirmed chaks in the village was delivered on 2.5.1984. The provisional Consolidation Scheme was confirmed on 17.7.1984. Notification u/s 52 of the Act took place on 27.8.1987. Sant Ram (now represented by the petitioners) and Ram Chander (now represented by respondents-3 to 6) (hereinafter referred to as the respondents) were real brothers. Sant Ram died in 1986 and Ram Chander died in 1997.

Sant Ram and Ram Chander were co-tenure holders in basic consolidation year khatas 40, 65, 167, 178 and 315 of village Asadh. Apart from khata 178, there was no dispute, in respect of the share of the co-sharers in other khatas. Total valuation of khatas 40, 65, 167 and 315 came in the shares of two brothers of Rs. 19.38 each. Separate chaks i.e. chak 315 was carved out in the name of Ram Chander and Chak 452 was carved out in the name of Sant Ram. As there was dispute in respect of the land of khata 178 as such a separate chak No. 453 was carved out of the land of this khata.

The Consolidation Officer, by order dated 7.2.1983, passed in Case No. 321, u/s 9A(2) of the Act, in respect of the land of khata 178, held that Sant Ram had 1/3 share, Ram Chander had 1/3 share and Shambhu Nath, Rama Shankar and Raj Ram together had 1/3 share in this khata. The order of Consolidation Officer was not challenged by any party and became final. Thereafter, by order dated 1.8.1985 passed in Case No. 4293, u/s 42A of the Act, 1/3 share of Sant Ram and 1/3 share of Ram Chander, in chak No. 453, were partitioned and valuation of their share were adjusted in their chaks. It may be mentioned that chak No. 453 was adjacent to chaks No. 315 and 452 in its north. According to the petitioners, by the order dated 1.8.1985, the portion of chak 453 falling by the side of chaks 315 and 452 were allotted in these chaks while according to the respondents direction of the chaks 315 and 452, which were earlier east-west, having frontage on the road were changed in north-south due to which chak 452 was carved out on the roadside and chak 315 was carved out behind it.

The respondents filed an appeal on 5.7.2012 (registered as Appeal No. 166/302) u/s 21(2) of the Act, from the order dated 1.8.1985, along with delay condonation application. It has been stated in the appeal that Sant Ram and Ram Chander formed a joint Hindu family. Sant Ram, being elder, was karta of the family and used to do pairavee in litigation on behalf of his brother Ram Chander also, who was in service at that time. During consolidation, although separate chaks were carved out in the names of two brothers giving equal frontage on PWD road but as the family was joint as such the chaks were throughout jointly cultivated. Other co-sharers of Sant Ram and Ram Chander were also allotted chaks giving frontage on the roadside. After the order of Consolidation Officer dated 7.2.1983, when the area of khata 178 had been adjusted in the chaks of Sant Ram and Ram Chander, by order dated 1.8.1985, Sant Ram committed a fraud and got direction of the chaks 315 and 452, which were earlier east-west giving frontage on the road, changed in north-south allotting chak of 452 on the roadside and chak 315 behind it. The respondents were deprived of the land of commercial value in a fraudulent manner, although on the spot demarcation and boundary of chaks 315 and 452 in east-west was existing. The partition in the family took place on 29.5.2012, then at that time the petitioners told that their chak was behind the chak of the petitioners. Then for the first time they came to know about the fraud committed by Sant Ram. On these allegations, the appeal was filed and prayer was made for allotting the chak of Ram Chander on roadside.

The petitioners contested the appeal as well as delay condonation application. They denied the allegation that partition in the family took place on 29.5.2012. They stated that during consolidation, entire joint family property (except abadi) were partitioned between Sant Ram and Ram Chander, They were allotted separate chaks and their family began to live separately. Ram Chander (chak 315) was allotted chak on original plots 1389, 1390, 1391, 1392, 1399, 1400, 1401, 1402, 1403, 1404 and 1405 and Sant Ram (chak 452) was allotted chak on plots 1392, 1397, 1398, 1399, 1403, 1404, 1405, 1406, 1407, 1408, 1409, 1410, 1412, 1415, 1416, 1417, 1418, 1419, 1424 and 1425. Demarcation and delivery of possession of the chaks took place on 2.5.1984. Ram Chander during his life time did not file any objection against his proposed chak. On the basis of order of Consolidation Officer dated 7.2.1983, Case No. 4293 u/s 42A was registered and by order dated 1.8.1985, plots 1379, 1382, 1383, 1384, 1385, 1386, 1387, 1388, 1389, 1390 and 1391 (area 1.40 acre) were allotted in the chak of Ram Chander (chak 315) from chak 453 and plots 1378, 1379, 1380, 1381, 1382, 1392, 1393, 1394, 1395, 1397 and 1398 were allotted to Sant Ram (chak 452) from chak 453. The chak of Ram Chander, as originally allotted to him, was not disturbed, by order dated 1.8.1985. In this appeal, the chaks which was originally allotted to Ram Chander, is being challenged for the first time after notification u/s 52 of the Act, although Ram Chander never filed any objection. The appeal was not maintainable, False reasons have been given for condonation of inordinate delay in filing the appeal. In the eastern side of chak 452, there was chak road, which was made pitch road in the year 1999-2000, while notification u/s 52 of the Act took place on 27.8.1987. Due conversion of the chak road, in pitch road, the appeal has been mala fide filed, on false allegation.

The appeal was heard by Settlement Officer Consolidation, who by order dated 4.5.2013 held that the chak of Ram Chander was carved out behind the chak of Sant Ram although both were real brothers and chaks of them were liable to be carved out giving frontage on the roadside. On these findings the appeal was allowed and direction of the chaks 315 and 452, were changed in east-west, giving frontage on the roadside to them. The petitioners filed a revision (registered as Revision No. 444) from the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 1.11.2013 held that Sant Ram and Ram Chander were real brothers and both of them were entitled to frontage of their chaks on the roadside but chak of Ram Chander was allotted behind the back of the chak of Sant Ram, depriving frontage on the roadside. From the certificate of Executive Engineer, it was not proved that this road was not pitch road earlier. Even otherwise also, every chak was liable to be provided access of sector/chak road. Settlement Officer has done substantial justice between the parties by the impugned order as such no interference is required. On these findings the revision was dismissed. Hence this writ petition has been filed.

The Counsel for the petitioners submitted that Ram Chander was proposed plots 1389,1390,1391,1392,1399, 1400, 1401, 1402, 1403, 1404, 1410, 1411, 1412,1413, 1414,1415, 1426 and 1427 in his chak and Sant Ram was proposed on plots 1392, 1397, 1398, 1399, 1403, 1404, 1405, 1406, 1407, 1408, 1409, 1410, 1411, 1412, 1415, 1416, 1417, 1428, 1419 and 1424, in his chak. Ram Chander did not file any objection against his proposed chak, although the village was notified on 10-8.1981, u/s 20 of the Act. In order to give effect to the order of Consolidation Officer dated 7.2.1983, Case No. 4293, u/s 42A was registered and by order dated 1.8.1985, plots 1379, 1382, 1383, 1384, 1385, 1386, 1387, 13.88, 1389, 1390 and 1391 (area 1.40 acre) were allotted in the chak of Ram Chander from chak 453 and plots 1378, 1379, 1380, 1381, 1382, 1392, 1393, 1394, 1395, 1397 and 1398 were allotted in the chak of Sant Ram from chak 453. Thus the chak of Ram Chander, as originally allotted to him, was not disturbed by order dated 1.8.1985. Provisional Consolidation Scheme of the village was confirmed on 17.7.1984. Notification u/s 52 of the Act took place on 27.8.1987. There was no objection against proposed chak of Ram Chander as such any appeal in this respect was not maintainable. Theory of partition between the family on 29.5.2012 is false. From the evidence on record, it is proved that both the brothers were allotted separate chaks in the year 1984 and their families were living separately since then. Chak road in east of the chak of the petitioners was converted into pitch road in 1999-2000. Now the respondents are trying to come on the chak road. There was no reason for condonation of inordinate delay of about 28 years, in filing the appeal. Respondents-1 and 2 did not consider the objection of the petitioners and condoned the delay. When the statute provide a particular procedure for filing objection against the proposed chak, the proposed chak can be challenged according to the procedure as provided in the statute and in no other way. The appeal without filing any objection u/s 20 of the Act, after close of consolidation operation, was not maintainable. Orders of Settlement Officer Consolidation and Deputy Director of Consolidation are illegal and liable to be set aside. He relied upon the judgment Privy Council in AIR 1936 253 (Privy Council) judgment of Supreme Court in State of Gujarat Vs. Shantilal Mangaldas and Others, in which it has been held that when power is given under a statute to do certain thing in a certain way then the thing must be done in that way or not at all. Judgment of this Court in Sita Ram and Another Vs. Deputy Director of consolidation and Others, in which it has been held that order passed in a objection filed without authority of Gaon Sabha in respect of the land covered with water, order passed in favour of Gaon Sabha, is without jurisdiction and judgment in Writ-B No. 50686 of 2013, Dev Raj v. DDC and others, decided on 18.9.2013, in which it was held that claim for allotment of chak on a roadside land was not made at the initial stage but made for the first time before Deputy Director of Consolidation is not maintainable.

I have considered the arguments of Counsel for the parties and examined the record. In order to appreciate the arguments of the Counsel for the parties, the relevant provisions of the Act are quoted below:--

Section 19A. Preparation of provisional Consolidation Scheme by Assistant Consolidation Officer.--(1) The Assistant Consolidation Officer shall in consultation with the Consolidation Committee, prepare in the form prescribed a provisional Consolidation Scheme for the Unit.

Section 20. Publication of provisional Consolidation Scheme and receipt of objections thereon.--(1) Upon the preparation of provisional Consolidation Scheme, the Assistant Consolidation Officer shall send, or cause to be sent, to the tenure holder concerned and persons interested, notices containing relevant extracts therefrom. The provisional Consolidation Scheme shall thereafter be published in the unit.

(2) Subjection to the provisions contained u/s 11A, any person to whom notice has been sent under sub-section (1) and any other person affected by the provisional Consolidation Scheme, disputing the propriety or correctness of the entries in the provisional Consolidation Scheme, or in the extracts furnished therefrom may, within fifteen days of the receipt of the notice, or of the date of publication of the provisional Consolidation Scheme, as the case may be, file an objection before the Assistant Consolidation Officer or the Consolidation Officer.

Section 21. Disposal of objection on the statement.--(1)...........

(2) Any person aggrieved by the order of Consolidation Officer under sub-section (1) may within fifteen days of the date of order, file an appeal before Settlement Officer Consolidation, whose decision shall except as otherwise provided by or under this Act be final.

Section 23. Confirmation of provisional Consolidation Scheme and issue of allotment orders.--(1) The Settlement Officer Consolidation shall confirm the provisional Consolidation Scheme--

(a) if no objections are filed within time specified in section 20, or

(b) where such objections are filed, after such modifications or alterations as may be necessary in view of the orders passed under Sub-section (1) to (4) of section 21.

Section 44A. Powers of subordinate authorities to be exercised by a superior authority.--Where powers to be exercised or duties to be performed by any authority under this Act or the rules made thereunder, such powers or duties may also be exercised or performed by any authority superior to it.

From the aforesaid provisions it is clear that provisional Consolidation Scheme is required to be confirmed by Settlement Officer Consolidation u/s 23 of the Act. By virtue of section 44A of the Act, all the powers u/s 21(1) and (2) can be exercised by Settlement Officer Consolidation. If any grievance is made against the provisional Consolidation Scheme by way of appeal before the Settlement Officer Consolidation, although no objection u/s 20 of the Act, was filed then also the grievance can be entertained and examined by Settlement Officer Consolidation by virtue of powers u/s 44A of the Act. Thus exerciser the powers was well within the frame of the statutory provisions. The arguments that as no objection was filed as such appeal was not maintainable is not liable to be accepted. A Division Bench of this Court in Mustafa Ali v. DDC and others, 1967 RD 149 (DB) and Single Judge in Moh. Kallu Vs. Dy. Director of Consolidation, Moradabad and Another, have held that confirmation of provisional consolidation scheme does not affect the jurisdiction of Deputy Director of Consolidation to re-carve/re-allocate the chaks.

Next argument of the Counsel for the petitioners that after notification u/s 52 of the Act, the appeal could not be filed. Section 5 of the General Clauses Act, authorizes for filing of the appeal after repeal of the Act. Supreme Court in Glaxo Smith Kline PLC and Others Vs. Controller of Patents and Designs and Others, held as this Court in Hoosein Kasam Dada (India) ltd. v. State of M.P. AIR 1951 SC 221 that when a preexisting right of appeal continues to exist, by necessary implication the old law which created the right of appeal also exists to support the continuation of that right and hence the old right must govern the exercise and enforcement of that right. In the absence of contrary intention in repealing the enactment, rights under the old statute are not destroyed. In M/s. Gurcharan Singh Baldev Singh Vs. Yashwant Singh and others, it was observed that right to proper consideration of an application by statutory authority remains alive even after repeal of the enactment under which the consideration had been sought.

Same principle also apply after notification u/s 52 of the Act. The controversy has been decided by Division Bench of this Court in Gopi Singh and Others Vs. Deputy Director of Consolidation and Others, Ram Bahadur Vs. Deputy Director of Consolidation and Others, and Siddh Narayan Vs. The Deputy Director of Consolidation and Others, .

The other arguments raised by the Counsel for the petitioners that inordinate delay in filing the appeal was not liable to be condoned. In this case, allegations were made that Sant Ram was karta of the family and used to do pairavee while Ram Chander was in service and actively relied upon his elder brother, who committed fraud and got his chak allotted on the roadside and chak of Ram Chander behind it. Although the petitioner denied the allegation that the family remained joint but it is admitted that even long after close of consolidation, both the branches jointly purchased the land. Thus respondents-1 and 2 rightly believed the allegation of the respondents that at the time of carvation of the chak, family was joint and Sant Ram was karta and doing pairavee on behalf of his brother also. Whenever the allegation of fraud is made then limitation runs from the date, when fraud was detected for the first time. In this case, it is alleged that when after partition on 29.5.2012, the respondents went on the spot then the petitioners objected and informed that the chak of the respondents was behind the back of their chak then for the first time they came to know that their chak was not allotted on the roadside. Believing the allegations, the delay was condoned. Settlement Officer Consolidation has not committed any illegality in condoning the delay.

Under consolidation scheme, every chak has to be carved out giving access to chak road. In this case, chak of the respondents is in the backside of the chak of the petitioners, having no access on the chak road. All the other co-sharers were allotted chak on the roadside. Sant Ram and Ram Chander were brothers. Both of them were entitled to allotment of the chak on the roadside. Denial of the roadside chak to Ram Chander was illegal. By changing the direction of the chaks both of them were rightly allotted chaks on roadside. Since both of them were co-sharers as such no prejudice is caused to the petitioners, in also on roadside.

Although, the appeal was filed from the order dated 1.8.1984 but prayer was made for allotment of the chak on the roadside. Thus there had been demand for allotment of the chak on the roadside. Respondents-1 and 2 have not committed any illegality in allotting the chak to the respondents giving frontage on roadside. The consolidation is the final settlement. In case, the respondents are not allotted chak on the roadside then material prejudice will be caused to them. On the other hand, the petitioners being co-sharers are entitled to the frontage on the roadside equal to the respondents as their shares were equal in original holdings and by allotting chaks to them giving equal frontage on the roadside, no prejudice has been caused. The Consolidation Commissioner U.P. issued Circular for allotment of the chak on the roadside land. This Court in various cases have held for allotment of the chak to the original tenure holder on the roadside land as the roadside land has commercial value and determination of its valuation on the basis of exchange ratio of the standard agricultural plot would be unequal. Equity has been adjusted by the consolidation authorities between the parties.

Supreme Court in Mohammad Swalleh and Others Vs. Third Addl. District Judge, Meerut and Another, and Ramesh Chandra Sankla Etc. Vs. Vikram Cement Etc., held that writ jurisdiction cannot be exercised for restoring illegal order. In State of U.P. Vs. District Judge, Unnao and Others, and Roshan Deen Vs. Preeti Lal, held the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it. The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by-product of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law. In view of the law laid down by the Supreme Court no interference is required by this Court in the impugned order. In view of the aforesaid discussion, no interference is required by this Court. The writ petition has no merit and is dismissed.