Narain vs Deputy Director of Consolidation (Admn.),Gorakhpur and Others

Shitla Pd. Srivastava, J.—Heard learned Counsel for the parties.

This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the order dated 971993 (Annexure6 to the writ petition) and order dated 2621993 (Annexure4 to the writ petition) passed by respondent Nos. 1 and 2 respectively and also for issuance of a writ of mandamus directing the respondents not to interfere in the peaceful possession of the petitioner.

Sri S.N. Singh, learned Counsel appearing on behalf of the respondent Nos. 3 and 4, Jangali and Har Nath and the learned Counsel for the petitioner agreed that the writ petition may be finally heard as such, the writ petition hasbeen heard finally at the stage of admission itself.

Brief facts giving rise to the present writ petition are that the petitioner and respondent are cosharers and the petitioner''s share is 1/2. The petitioner originally held plot Nos. 213/1, 145/1, 212/2, 214, 215/(...sic), 658/2, 658/3 and 658/1. The grievance of the petitioner is that originally the plot No. 658 belongs to t he petitioner and respondent Nos. 3 and 4 wherein the share of the petitioner is 1/2. As per the statement made in para 4 of the writ petition that the Assistant Consolidation Officer proposed chak No. 187 to the petitioner at two places first at plot No. 145/2, second at plot No. 659/1, 600/1, 600/2,658/2,658/4,658/1,658/2 and 658/3. The grievance of the petitioner is that the Assistant Consolidation Officer proposed chak in such a manner that the petitioner''s tubewell was included in the chak of the respondent No. 4 and the petitioner was completely deprived of his private source of irrigation and that chak was in LShape containing six aimers which was uncultivatable. This point was raised before the consolidation authorities but the Settlement Officer Consolidation and Deputy Director of Consolidation did not consider this point and as such, he has been put to great loss. It is urged by the learned Counsel for the petitioner that the chak which has been allotted to the petitioner is LShaped, which is unfit for cultivation.

In paragraph 5 of the writ petition it is stated that the Assistant Consolidation Officer proposed chak in such a manner that petitioner''s tubewell was included in the chak of respondent No. 4 and the petitioner was completely deprived of private source of irrigation and that chak was in LShaped containing six corners which was uncultivatable. This paragraph has been answered in the counteraffidavit by the contesting respondents in para 6 of the counteraffidavit, wherein ii is stated that there was no tubewell in operation merely the place of boring was there and including the original number in the plots, the Assistant Consolidation Officer proposed the chaks to the parties and as such, it is incorrect to say that the petitioner was completely deprived of private source of irrigation. In para 4 of t he counteraffidavit it is stated that the answering respondents are Cosharers and the answering respondents were satisfied, with the chak proposed by the Assistant Consolidation Officer. It is also stated therein that in plot No. 658/3 there was tubewell but for the last more than seven years, no tubewell is working.

In rejoinderaffidavit, these paragraphs have been answered and the plea taken earlier in the writ petition and reiterated. There is no dispute that plot No. 658/3 came in the share of the petitioner in partition. Thus, from the narration of the facts in the writ petition, counteraffidavit and rejoinderaffidavit, it is admitted to the parties that plot No, 658/3 belong to the petitioner. It is admitted that there was a boring in this plot. The dispute is I as to whether it was functioning or was in operation. Learned Counsel for the respondent has stated that it was not in functioning order.

Heard the learned Counsel for the parties and perused the records. Learned Counsel for the petitioner urged that the plea of deprivation of the private source of irrigation was taken by the petilioner from the very beginning but neither the Settlement Officer Consolidation nor the Deputy Director of Consolidation considered this aspect of the case and as such, the judgments oil the both the authorities suffer from illegality on the face of record and the same are not in accordance with the provisions of Section 19 of the U.P. Consolidation of! Land Holdings Act. His second submission is that the shape of the chak proposed to the petitioner was Lshape and it was not proper andit was unlit for cultivation. Learned Counsel for the petitioner read the judgments of the Settlement Officer Consolidation and Deputy Director of Consolidation and also the grounds of revision and showed the siteplan prepared of the village filed as Annexure8 to the writ petition in order to show that the chak has been caned out to the petitioner is Lshape. However, no certified copy of site plan prepared at the stage of Settlement Officer Consolidation or Deputy Director of Consolidation has been filed by the petitioner to show as to whether actually the chak allotted to the petitioner is LShape or not. There is no finding with regard to the boring on the original chak of the petitioner and with regard to the Lshape chak, therefore, it was urged by the Learned Counsel for the petitioner that the impugned judgments may be quashed.

Sri S.N. Singh, learned Counsel for the respondents vehemently opposed the writ petition and urged that the finding of fact has been recorded by the Settlement Officer Consolidation to the effect that the parties will not suffer on account of this allotment, therefore, the finding recorded by the Settlement Officer Consolidation is finding of fact, which should not be interfered with under Article 226 of the Constitution of India. His further submission is that the Settlement Officer Consolidation as well as Deputy Director of Consolidation have given finding that the chak of the petitioner was not in rectangular shape, therefore, the modification will create more complication and it will not cause prejudice to the petitioner. His further submission is that it the ground of boring , was taken that was not considered by the Deputy Director of Consolidation and his judgment is silent on the point that there is no error in the judgment. His further submission is that the parties are cosharers and after partition plot No. 658/3 fell in the share of the petitioner and no substantial loss has been done to the petitioner.

After hearing the learned Counsel for the parties, I am of the view that �be judgment of the Deputy Director of Consolidation must be quashed in view of the admitted fact that plot No. 568/3 fell in the share of the petitioner. Had there been a boring in his plot then it was incumbent upon the Deputy Director Consolidation (sic) Officer to have considered this aspect of the matter as to whether the said plot should be given to him or not. The omission to record the finding in spite of the plea taken means not consideration of the same, therefore, the judgment suffers from this error apparent from the record. From the perusal of the memo of revision it is apparent that such point was raised but it was not considered. Section 19 of the U.P. Consolidation of Land ''Holdings Act lays down conditions, which is to be filled up by the consolidation scheme. The entire Section 10 of the U.P. Consolidation of Land Holdings Act is quoted below:

�19, Conditions to be fulfilled by a Consolidation Scheme.(1) A Consolidation Scheme shall fulfil the following conditions, namely

(a:) the right and liabilities of a tenureholder, as recorded in the annual register prepared under Section 10, are, subject to the deductions, if any, made on account of contributions to public purposes under this Act, secured in the lands allotted to him;

(b) the valuation of plots allotted to a tenureholder; subject to deductions, if made on account of contributions to public purposes under this Act is equal to the valuation of plots originally held by him:

Providedthat, except, with the permission Of the Director of Consolidation, the area of the holding or holdings allotted to a tenureholder shall not differ from the area of his original holding or holdings by more than twenty five per cent of the latter;

(c) the compensation determined under the provisions of this Act, or the rules framed thereunder, is awarded

(1) to the tenureholder

(i) for trees, wells and other improvements, originally held by him and allotted to another tenureholder, and

(ii) for land contributed by him for public purposes;

(2) to the Gaon Sabha, or any other local authority, us the case may be, for development, if any effected by it in or over land belonging to it and allotted to a tenureholder;

(d) the principles laid down in the Statement of Principles are followed;

(e) every tenureholder is, as far as possible, allotted a compact area at the place where he holds the largest part of his holding:

Provided that no tenureholder may be allotted more chaks than three, except with the approval in writing of the Deputy Director of Consolidation:

Provided further that no consolidation made shaft be invalid for the reason merely that the number of chaks allotted to a tenureholder exceeds three;

(f) every tenureholder is, as far as possible, allotted the plot on which exists his private source of irrigation or any other improvement, together with an area in the vicinity equal to the valuation of the plots originally held by him, there; and

(g) every tenureholder is, as far as possible, allotted chaks in conformity with the process of rectangulation in rectangulation units.

(2) A consolidation Scheme before it is made final under Section 23, shall be provisionally drawn up in accordance with the provisions of Section 19A.�

A bare perusal of the Section 19 specially subsection (1)(c)(i) will made it clear that trees, wells and other improvements originally held by the tenure holder shall be taken into consideration. Subsection (f) thereof says that every tenureholder is, as far as possible, allotted the plot on which exists his private source of irrigation or any other improvement, together with an area in the vicinity equal to the valuation of the plots originally held by him there.

A bare perusal of the judgments of the Settlement Officer Consolidation and Deputy Director of Consolidation will make it clear that this provisions has not been considered by the two consolidation authorities. The argument of the learned Counsel for the respondent that the boring was there but it was not in operation for the last seven years. There is no inspection report that the private source of irrigation was functioning or not. There is no finding to this effect of the consolidation authorises, therefore, the judgment suffers from error apparent on the face of record. So far as the shape of the Chak allotted to the petitioner is concerned, the petitioner has not been able to specify to the Court that it is LShape but nevertheless it was incumbent on the part of the Deputy Director of Consolidation to have considered the point raised in the memo of revision exercising powers under Section 48of the U.P. Consolidation of Land Holdings Act, therefore, the judgment suffers from illegality. The Deputy Director of Consolidation should have considered this question in true prospective.

I quash the judgment of the Deputy Director of Consolidation and remand the case back to him with the direction that revision be restored to its original number and he will make a local inspection on two points, firstly, whether the provisions of Section 19 of the U.P. Consolidation of Land Holdings Act has been complied with and secondly, there was a well on the relevant date or whether any allotment in conformity of Section 19 of the Act was made or not and then he will decide the case afresh, after giving opportunity to the parties of hearing and no further evidence shall be adduced.

With the consent of the parties, I fix 20th December 1999, for the parties to appear before the Deputy Director of Consolidation and the Deputy Director of Consolidation stall try his best to dispose of the matter at an early date, preferably within a period o f six months.

The writ petition is allowed and the judgment of the Deputy Director of Consolidation is quashed and matter is being sent hack to the Deputy Director of Consolidation to restore the revision on its original number and decide it afresh keeping in view the observations made in the body of the judgment and after giving opportunity to the parties and decide the matter at an early date preferably within a period of six months. There will be no order as to costs. Petition allowed.