Jokhu vs State of U.P. and Others

Anjani Kumar Mishra, J.—Heard Sri Sharad Chandra Srivastava, learned Counsel for the petitioner and Sri Harish Chandra Dwivedi for respondents 4 to 6. This writ petition has been filed challenging an order dated 26.11.2014 passed by the Deputy Director of Consolidation, Varanasi and the order dated 17.10.2014 passed by the Settlement Officer, Consolidation, Varanasi.

It appears that on an application filed under section 5-C of the U.P. Consolidation of Holdings Act, the respondent No. 1, the Settlement Officer, Consolidation granted permission to the contesting respondents to raise constructions over a plot, which is admittedly chak out and is in the shape of an Abadi.

Aggrieved by this order, the petitioner preferred a revision on the ground that the order was vague, inasmuch as it did not specify the actual location, where the constructions had been permitted. The other ground taken was that the order was ex parte.

This revision has been dismissed by the Deputy Director of Consolidation on the ground that permission is required, only where the consolidation scheme is liable to be effected. He has further recorded that since the permission has been granted for raising constructions over an area, which was not part of the provisional consolidation scheme and, therefore, consolidation operations could not be effected thereby. He has lastly observed that the dispute appears to be one of the respective shares of the parties in this chak out plot, which dispute cannot be determined by the consolidation Courts.

Learned Counsel for the petitioner has relied upon the judgment of this Court Devendra Mohan and Others Vs. Deputy Director of Consolidation and Others, . In this case, the Settlement Officer, Consolidation had granted an interim injunction and the same was challenged on the ground that constructions which existed were not disputed and, therefore, the same could not be subject-matter of proceedings under the U.P. Consolidation of Holdings Act, as the constructions existed prior to the notification under section 5-C. It was also alleged in the writ petition that respondents were trying to dispossess the petitioner on the strength of the interim injunction granted by the Settlement Officer, Consolidation. It also appears that actual dispute in the said writ petition was with regard to the possession of the constructions over the plot in question and regarding which the Settlement Officer, Consolidation had granted an interim order. In the aforesaid facts and circumstances, this Court held that the proceedings before the Settlement Officer, Consolidation were without jurisdiction as the consolidation Courts had assumed jurisdiction, which lay with the civil Courts and, therefore, set aside the orders.

It is not an issue in the instant case that any interim injunction was granted by the Settlement Officer, Consolidation. The Settlement Officer, Consolidation in fact on an application filed by the contesting respondents had permitted constructions to be raised by them over a plot, which is admittedly chak out.

It has also come on record and is not disputed by the learned Counsel for the petitioner that not only have constructions being raised in pursuance of the permission granted by the Settlement Officer, Consolidation, in fact constructions are going on even on date.

In, Ramzan Ali v. DDC, 1997 RD 418, it has been held that the grant of permission under section 5(1)(i)(c), has the effect of bringing the land, on which constructions have been permitted, outside the purview of the Consolidation Scheme.

In the instant case, the land on which permission to raise constructions has been granted was admittedly Abadi land and, therefore, outside the consolidation scheme and therefore no permission was required for raising constructions.

Under the circumstances, the permission granted is of no consequence and will in no way effect the rights of the parties. It has been observed by the Deputy Director of Consolidation that the dispute between the parties appears to be one of their shares in the chak out plot, over which constructions are being raised. Therefore, the remedy, if any, available to the parties is before the Civil Court.

The writ petition therefore is disposed of directing the parties to approach the competent Civil Court for redressal of their grievances, if any. In case, the parties approach the Civil Court, the dispute so raised may be decided without being influenced by the judgments impugned in this writ petition or by any observations therein. This writ petition is therefore disposed of accordingly.