Sheo Chand and Others vs Deputy Director of Consolidation, Azamgarh and Others

Ram Surat Ram (Maurya), J.—Heard Sri Ram Niwas Singh, for the petitioners and Standing Counsel for respondents. The writ petition has been filed for quashing and modifying the order of Deputy Director of Consolidation (respondent-1) dated 10.1.2013, passed in Revision No. 715/925, Sheo Chand v. Kedar and Revision No. 835, Ramesh v. State, arising out of chak allotment proceedings under the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

In consolidation Khurmulli (now represented by the petitioners) was allotted chak 76, Garib, (father of respondent-2) was allotted chak 82, Sharib (now represented by respondents-3 to 5) was allotted chak 83 and Nankhu (respondent-6) was allotted chak 167. Some area of plot No. 726 was reserved for extension of abadi at the time of preparation of statement of principles u/s 8A of the Act while remaining area of plot No. 726 was allotted in the chaks of Garib, Khurmulli and Nankhu. The old abadi is situated in plot No. 725, where houses of the petitioners and the respondents are situated. The petitioners filed a revision (registered as Revision No. 715/925) stating therein that their chak as allotted on plot No. 726 was in L shape and be carved in rectangular shape. Ramesh Chand and others (respondents-3 to 5) filed a revision (registered as Revision No. 835) claiming that an area of 0.030 hectare from his second chak, allotted on plot Nos. 702, be reduced and that area be allotted to him in plot No. 726 by the side of chak 82. Both the revisions were consolidated and heard together.

Deputy Director of Consolidation made spot inspection and by the order dated 10.1.2013 found that plot No. 726 was not the original holding of any of the parties; in the western side of plot No. 726, land was reserved for extension of abadi, which was the root cause of dispute between the parties; Kedar (respondent-2) was allotted chak in front of the abadi; the chak of the petitioners, as allotted on plot No. 726, was in L. shape; plot Nos. 721 and 722 were suitable for extension of abadi. On these findings he allowed both the revisions and by taking an area of 0.005 hectare from plot 726 (reserved for abadi) and an area of 0.003 hectare of plot No. 726 from the chak of Nankhu (respondent-6), the chak of the petitioners on plot No. 726 has been made in rectangular shape. The remaining area of plot No. 726, which was reserved for abadi was allotted in the chaks of Garib, Sharib and Nankhu (respondents-2 to 6) and on a small area of this plot chak road was made. The land for extension of abadi was reserved on plot Nos. 721 and 722, i.e. on the other side of the old abadi. The order of respondent-1 has been challenged in this writ petition.

The Counsel for the petitioners submitted that an area of 0.058 hectare of plot No. 726 was reserved for extension of abadi at the time of preparation of Statement of Principles u/s 8A of the Act. No objection was filed against the Statement of Principle, reserving land for extension of abadi in plot No. 726 u/s 9(2) of the Act as such Statement of Principle has become final u/s 9B(3) of the Act and it was not open for respondent-1 to disturb the Statement of Principle, in chak allotment proceedings. He further submitted that by the order of respondent-1, chak Nos. 82 and 83 have been carved out in front of the house of the petitioners. The frontage of the house of the petitioners has been illegally allotted to the respondents.

A perusal of the impugned order shows that an area of 0.005 hectare of plot No. 726, reserved for extension of abadi and an area of 0.003 hectare from the chak of Nankhu (respondent-6) has been allotted to the petitioners, for making their chak in rectangular shape. In paragraph-14 of the writ petition, the petitioners have stated that they are only aggrieved by allotment of the land reserved for abadi, in the chaks of respondents-2 to 6 as such they have prayed for modification of the order in the relief clause of the writ petition. Thus on the one hand the petitioners support allotment of the land reserved for abadi in his chak but at the same time they oppose allotment of it, to respondents-2 to 6 on the ground that no objection has been filed against the Statement of Principle u/s 9(2) of the Act as such respondent-1 has no jurisdiction to disturb the land reserved for extension of abadi in chak allotment proceeding. The petitioners cannot be permitted to blow hot and cool in the same breath.

So far as the first point raised by the Counsel for the petitioners that as no objection was filed against the Statement of Principle, reserving land for extension of abadi in plot No. 726 u/s 9(2) of the Act, as such Statement of Principle has become final u/s 9B(3) of the Act and it was not open for respondent-1 to disturb the Statement of Principle in chak allotment proceedings is concerned, in order to appreciate the controversy, the relevant provisions of the Act are quoted below:--

Section 8A. Preparation of Statement of Principles.--(1) The Assistant Consolidation Officer shall, in consultation with the Consolidation Committee, prepare, in respect of each unit under consolidation operations, a statement in the prescribed form (hereinafter called the Statement of Principles) setting forth the principles to be followed in carrying out the consolidation operations in the unit.

(2) The Statement of Principle shall also contain-

(a) details of areas, as far as they can be determined at this stage, to be earmarked for extension of abadi including areas for abadi site for Harijans and landless persons in the unit and for other public purposes as may be prescribed;

(b) the basis on which the tenure-holders will contribute land for extension of abadi and for other public purposes; and

(c) details of land to be earmarked for public purposes out of land vested in a Gaon Sabha or a Local Authority u/s 117 or section 117A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950

(d) the standard plot for each unit.

Section 9B(3):--Any person aggrieved by an order of the Consolidation Officer under sub-section (1), or sub-section (2), may, within 21 days of the date of order, file an appeal before the Settlement Officer Consolidation, whose decision except as otherwise provided by or under this Act, shall be final.

Section 9(2) provides for filing of the objection within 21 days of the publication under sub-section (1), against Statement of Principles etc. Section 9B(1) provides for disposal of objections against the Statement of Principles. Section 9B(2) provides that where no objection has been filed against the Statement of Principles, the Consolidation Officer shall with a view of examining it''s correctness shall himself make local inspection of the unit and may make alteration and modification in the Statement of Principles. Section 9B(3) provides for appeal from the orders passed u/s 9B(1) and (2) and attaches the finality of the orders passed in appeal by the Settlement Officer Consolidation. Thus section 9B(3) provides the remedy of the appeal and attaches the finality of the order passed in the appeal, except as otherwise provided by or under this Act.

Section 9B(3) attaches the finality of Statement of Principles subject to other provisions of the Act. A Full Bench of this Court in R.K. Singh v. DDC and others 1974 All LJ 834, has held that powers u/s 48 of the Act can be exercised suo moto, in order to satisfying himself with regards to the correctness, legality and propriety of any order passed by the sub ordinate authority. This Court in Budhi Ram (D) through L. Rs. and Another Vs. Deputy Director of Consolidation and Others, , held that even the sub ordinate authorities can make reference u/s 48(3) of the Act, for change of Statement of Principles at the later stage of the consolidation. Thus the finality attached to the Statement of Principles u/s 9B(3) does not affect the jurisdiction of Deputy Director of Consolidation to change it.

Section 8A(2)(a) opens with the words "details of areas as far as they can be determined at this stage to be earmarked for extension of abadi etc." Use of the words ''as far as they can be determined at this stage'', makes no doubt that the land reserved for extension of abadi and for other public purposes was not final. It is always open to the consolidation authorities to re-examine it''s utility at the time of allotment of the chak. The sub-ordinate authority can make a reference u/s 48(3) for change its location while Deputy Director of Consolidation can change it sou motu u/s 48(1) of the Act. This Court held that the provisions contained u/s 9B(3) of the Act does not restrict the jurisdiction of Deputy Director of Consolidation u/s 48 of the Act, in which he has ample powers to examine the regularity, correctness, legality or propriety of any case decided or proceedings taken by any subordinate authority.

Section 11A bars objections in respect of some matters, at the subsequent stages of the consolidation proceedings. Now it has to be examined as to whether the bar created u/s 11A of the Act is applicable to the Statement of Principles also. Section 11A is quoted below:

Section 11A.--Bar on objection.--No question in respect of--

(i) claims to land,

(ii) partition of joint holdings, and

(iii) valuation of plots, trees, wells, and other improvements, where the question is sought to be raised by a tenure holder of the plot or the owner of the tree, well or other improvements recorded in the annual register u/s 10,

relating to the consolidation area, which has been raised u/s 9 or which might or ought to have been raised under that section but has not been so raised, shall be raised or heard at any subsequent stage of the consolidation proceedings.

Bare reading of the aforesaid provisions, makes it clear that section 11A bars objection at the subsequent stage of the consolidation proceedings in respect of claim to the land, partition of the joint holdings and valuation of plots, trees, wells, and others improvements. In Ram Samuj (Dead) through L.R. Vs. Deputy Director of Consolidation and Others , this Court held that bar created u/s 11A of the Act applies only to the claim of the land, partition of the joint holdings and valuation of plots, trees, wells, and others improvements. There is no bar u/s 11A of the Act for Statement of the Principles. The arguments of the Counsel for the petitioners that Statement of Principles cannot be changed at the subsequent stage of the consolidation proceedings is not liable to be accepted.

The other arguments raised by the Counsel for the petitioners that respondents-2 to 6 have been illegally allotted chak in front of the house of the petitioners by impugned order of respondent-1. Section 19 of the Act prescribed the norms to be adopted for the allotment of the chak. Section 19(1)(f) which is relevant is quoted below:--

Conditions to be fulfilled by a Consolidation Scheme.--(1) .......

(f) every tenure holder 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;

In none of the clauses of section 19, it has been provided that a tenure holder is entitled for allotment of chak in front of his house or no other person can be allotted a chak in front of his house. Take a situation where a person although owned a house in the village but is a landless. In such a situation what procedure will be followed by the consolidation authorities. Due to these circumstances no provision has been made for allotment of chak in front of the house of the tenure holders. In case a chak has been allotted in front of the house of other person then there is no illegality.

In this case, the Deputy Director of Consolidation himself inspected the spot and found the utility of reservation of land on plot No. 726 was not better than it''s allotment in the chak of the parties which will satisfy the demand of all the parties while the land reserved for extension of can be shifted on the other plots 721 and 722 which are also adjacent to the old abadi. The petitioner could not show that decision of respondent-1 in this respect is arbitrary or will not serve the public purpose. In view of the aforesaid discussion, I do not find any illegality in the order of respondent-1. The writ petition has no merit and is dismissed.