Badrun Neshan and Others vs Deputy Director of Consolidation and Others

Krishna Murari, J.—Heard Sri S.M. Mishra, learned Counsel for the Petitioners and Sri R.N. Singh, Senior Advocate assisted by Sri Vishnu Kumar Singh for contesting Respondent No. 3.

With the consent of the learned Counsel for the parties, the writ petition is being finally disposed of at this stage without calling for a counter affidavit.

Undisputed facts are that against the order dated 29.8.1979 passed by the Deputy Director of Consolidation in a revision arising out of chak allotment proceedings, the predecessorininterest of the present Petitioners filed writ petition No. 9471 of 1979. The said writ petition was disposed of by this Court vide order dated 23.2.2010 by making following observations:

Shri R.N. Singh, learned Senior Counsel has filed an affidavit and submitted that during the pendency of the writ petition before this Court the heir of the sole Petitioner Mohd. Suleman had executed some sale deeds and disposed of the entire agricultural land to other persons, details of all these sale deeds have been given in paras 3 and 4 of the affidavit filed by Ajaz Ahmad Khan (Respondent No. 2/1). According to him the Petitioners now have left no interest in the land in dispute and as such the petition has become infructuous and the same may be dismissed.

There is substance in this submission of the learned Counsel appearing for Respondent No. 2 that if most part of the land has been sold, there appears to be no justification in carrying on with the litigation.

Shri Ashok Pandey, learned Counsel for the Petitioner has responded to this and submitted that the Petitioner is still having 610 kari land in plot No. 1041. However, Shri R.N. Singh, learned Senior Counsel has denied this fact and submitted that the entire plot was sold. This can be ascertained from the revenue records. However, it is possible that he is having some small piece of land in his possession and this possession may not be disturbed. Sri Ashok Kumar Pandey, learned Counsel for the Petitioner has drawn attention of the Court to various paragraphs of the pleadings to demonstrate that the Petitioner is still having some small piece of land in his possession, which may not be disturbed. They are also having possession over the other respective agricultural land. The order passed by the Deputy Director of Consolidation is speaking order. There is now nothing left to adjudicate the order passed by the Deputy Director of Consolidation as the chaks of the other land holders have already been carved out. All the parties are almost now satisfied with the present arrangement.

Considering the facts and circumstances of the case, however, in the interest of justice it is provided that the Consolidation and Revenue Authorities are directed to allow Petitioner to continue on his Chaks and land holdings which were allotted to him and were in his possession. The contesting-Respondent is already occupying his Chaks.

The writ petition stands disposed of accordingly. Interim order, if any, is discharged.

However, before the writ petition could be finally disposed of by the aforesaid order, it was dismissed in default on 11.7.2007 and was subsequently restored vide order dated 11.3.2008. From the record it appears that after dismissal of the writ petition in default, an application was filed by the contesting Respondent No. 3 under Rule 109A for implementation of the order of the Deputy Director of Consolidation on which a report was called for and the Consolidation Officer vide order dated 29.10.2007 directed implementation of the order and carved chaks of the parties accordingly. The Petitioner appears to have moved recall application which remained pending.

After the writ petition was finally disposed of vide order dated 23.2.2010 the present Petitioners moved another application under Rule 109A on the allegations that the order of the Deputy Director of Consolidation has been set aside and as such the chaks of the parties should be carved out as allotted to them by the Settlement Officer Consolidation vide order dated 20.6.1974. Consolidation Officer consolidated the recall application and the other application filed by the Petitioners under Rule 109A and vide order dated 16.6.2010 dismissed both the applications and maintained the order dated 29.10.2007. The result of the order was that the chaks of the parties carved out at the stage of Deputy Director of Consolidation was maintained. The Petitioners went up in revision which has also been dismissed vide order dated 6.1.2011.

It has been contended by learned Counsel for the Petitioners that writ petition No. 9471 of 1979 was not dismissed as such the parties are entitled to be placed on the chaks allotted to them at the stage of Settlement Officer Consolidation.

In reply, it has been submitted by learned Counsel for the Respondent No. 3 that a perusal of the impugned order clearly goes to show that this Court held that there is nothing left to be adjudicated in the order passed by the Deputy Director of Consolidation and all the parties are satisfied with the present arrangement and as such, the order of the Deputy Director of Consolidation is maintained and the parties are to be placed on the chaks accordingly.

I have considered the submission advanced on behalf of both the parties and perused the records.

The entire controversy revolves around the interpretation of the order dated 23.2.2010 passed by this Court in the earlier writ petition. From the perusal of the judgment, it is clear that the Court refused to interfere in the order of the Deputy Director of Consolidation mainly on the ground that the agricultural land subject matter of the dispute has already been sold by the Petitioners. However, in respect of 610 Kari land of plot No. 1041 there was a dispute between the parties as to whether the said area has been retained by the Petitioners or has been sold. The Court observed that if they were continuing in possession over the disputed area, the same was liable to be retained with the Petitioners and this could be ascertained from the revenue records. Though it was not specifically stated in the judgment whether the writ petition has been allowed or dismissed but the tenor of the judgment makes it clear that the chaks allotted to the parties at the stage of Deputy Director of consolidation was directed to be maintained except for an area 610 Kari of plot No. 1041, in case it was not subject matter of transfer deed executed by the Petitioners and was still in their possession.

Both the Consolidation Officer and Deputy Director of Consolidation though has maintained the chaks of the parties allotted at the stage of Deputy Director of Consolidation but have failed to record any finding with respect to 610 Kari land of plot No. 1041. In view of judgment of this Court, a specific finding ought to have been recorded as to whether the said area was subject matter of transfer or not and in case it was not transferred the Petitioners were entitled to retain the same. The orders passed by the Consolidation Officer as well as Deputy Director of Consolidation being silent on this aspect of the matter are not liable to be sustained.

In view of above, the orders dated 6.1.2011 and 16.6.2010 passed by the Respondents No. 1 & 2 respectively are quashed. The writ petition stands allowed.

The matter stands remitted back to the Consolidation Officer, Phoolpur, district Azamgarh to readjudicate the proceedings under Rule 109A with the observations that after verifying from the record a specific finding would be returned with respect to the fact as to whether area 610 Kari of plot No. 1041 was subject matter of transfer deed executed by the Petitioners or not. If the said area was subject matter of transfer deed in that event the order of the Deputy Director of Consolidation would be implemented as it is. However, in case the said area is not subject matter of transfer deed the Petitioners shall be entitled for inclusion of the same in their chaks carved out at the stage of Deputy Director of Consolidation.