Jamaluddin and Others vs D.D.C. and Others

Amreshwar Pratap Sahi, J.—Vakalatnama of Sri Gayur in favour of Smt. Farida Jamal and Sri S.S. Shah is taken on record.

The respondent No. 5 is reported to be dead and so has the learned counsel for the Caveator Sri S. Ali Shah. The petitioner''s counsel does not dispute this position. Since the death of respondent No. 5 has admittedly taken place on 20.1.2012, this undisputed information tendered by the learned counsel for either side is taken on record and the name of Respondent No. 5 is permitted to be deleted and be substituted by the name of Gayur, son and heir of respondent No. 5. Let the aforesaid correction be, accordingly, carried out.

Heard Sri Onkar Singh learned counsel for the petitioners and Smt. Farida Jamal and Sri S.K. Tyagi for the substituted heirs of the respondent No. 5.

After the matter was heard at length learned counsel for the parties are agreed that the matter may be decided finally at this stage itself without awaiting further any counter affidavit. Learned standing counsel for the respondent nos. 1,2 and 3 and the learned counsel for the Gaon Sabha have given consent to dispose of this petition finally.

The grievance of the petitioner is that under the garb of the reference being implemented in proceedings under Rule 109 the valuable land of the petitioners over plot No. 632 has been taken away and they have been allotted chaks elsewhere after valuation which could not have been opened in this proceeding.

The background in which the present dispute arises is that plot No. 632 had been entirely kept out from consolidation operations and endorsed in Column No. 18 of C.H. Form No. 5. It appears that an appeal was filed against the order of the Consolidation Officer for keeping the land out of the consolidation proceedings, which was allowed and the matter was remanded back to the Consolidation Officer for fixing the valuation of the land including the tenements and improvements thereon. The Consolidation Officer by his order dated 29.1.93 valued the existence of a Tube Well and the trees of the petitioners and consigned the file. The shares were indicated on the basis of some family settlement which is referred to in the order.

An application appears to have been filed under Rule 109 and the Consolidation Officer passed an order on the said application after six years on 7.7.1999. Aggrieved by the said order which brought about the alteration in the allotment of holdings, the petitioners filed an appeal which was dismissed on 30.12.2003. A restoration application was filed by the petitioners which was dismissed on 23.1.2008. Aggrieved by these two orders, the petitioners preferred two revisions which have now been dismissed by the impugned order dated 16.11.2011.

The petitioners have assailed the order dated 7.7.1999 and the consequential order referred to herein above on the ground that the order dated 29.1.93 has to be implemented only to the extent of the directions contained therein and it does not allow the authorities to proceed to make a fresh allotment of chaks as now has been attempted by the order dated 7.7.99.

Sri Singh submits that the Deputy Director of Consolidation as well as the Settlement Officer Consolidation have both over looked this aspect of the matter on the ground that the Settlement Officer Consolidation had passed an order on 4.6.1997 in two appeals filed against the said order dated 29.1.93 and therefore the compliance was to be made accordingly. He submits that the order dated 4.6.97 was not brought to the notice of the authorities and it was surreptitiously placed before the Deputy Director of Consolidation without any opportunity to the petitioner to contest the alteration or correction of the said order.

An alternative argument has been raised that the order dated 4.6.97 dismisses the appeals alleged to have been filed by both the parties and as such the said dismissal only affirms the order dated 29.1.93.

On the other hand the learned counsel for the respondent contends that the judgment dated 4.6.97 of the Settlement Officer Consolidation brings about the alteration in the allotment of chaks. It is also urged that the said order was placed along with the application under Rule 109 and it is wrong to allege that it was filed before the Deputy Director of Consolidation without notice to the petitioners.

In the opinion of the Court, the Settlement Officer Consolidation had no jurisdiction in a matter of valuation to proceed to alter any allotment beyond that was subject matter of the order dated 29.1.93. If any observation or any order has been made with regard to the allotment of chaks the same was beyond the competence of the Settlement Officer Consolidation. It is therefore clarified that any observation made in the order of the Settlement Officer Consolidation dated 4.6.97 against the order dated 29.1.93 in relation to allotment shall not be taken into consideration while proceeding to decide the matter.

In view of this the orders dated 7.7.99, 30.12.2003 and 16.11.2011 cannot be sustained. The orders impugned aforesaid are hereby quashed. The Consolidation Officer under Rule 109 shall now proceed to strictly comply with the order dated 29.1.93 and pass an appropriate order in accordance with law in the light of the observations made herein above within a period of 3 months from the date of production of certified copy of this order before him.

The writ petition is allowed. No order as to costs.