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Akbar v. Deputy Director,Consolidation And Another - WRIT - B No. 2116 of 1999  RD-AH 6113 (21 March 2006)
COURT NO. 40
CIVIL MISC. WRIT PETITION NO. 2116 OF 1999
Deputy Director Consolidation, Ghaziabad and another.........................................................Respondents.
Hon. S.N.Srivastava, J.
Impugned herein are the orders dated 25.11.1998, 7.11.1997, 17.10.1997 and 31.12.1997 passed by the Deputy Director Consolidation, Ghaziabad, the Consolidation officer, and the Asstt. Settlement officer Consolidation respectively.
The dispute arose in the matter with the moving of application by respondent no.2 on 13.10.1997 before the Consolidation officer praying therein to cancel the order dated 27.10.1984 by which the petitioner was allotted a chak having an area of 3 Bigha, 8 Biswas, and 1 Dhur as against the area of 12 Biswa and 13 Dhur of his original chak. It would transpire from the record that by means of order dated 17.10.1997; the allotment made by means of order-dated 27.10.1984 was rescinded. Thereafter, it would further appear from the record, the matter was taken up in appeal, which culminated in being dismissed vide order dated 17.10.1997. The petitioner, thereafter, went up in revision which was also dismissed vide order dated 25.11.1998. It is in the above perspective that the present petition was instituted in the year 1999.
I have heard learned counsel for the parties and also perused the materials on record.
Learned counsel for the petitioner canvassed that the allotment of chaks attained finality in the year 1984 and thereafter parties got hold of possession of their respective chak in the year 1986. It is further canvassed that the Opp. party no.2 resurrected the matter after an efflux of 14 years i.e. in the year 1997 by moving an application on 13.10.1997. It is further canvassed that the Consolidation officer consequent upon the application aforesaid erroneously recalled the order dated 27.10.1984 by means of order dated 17.10.1997 without taking recourse to serving statutory notice and subsequently, by order dated 7.11.1997, the chaks were redistributed involving reduction in area of petitioner's chak behind his back. He also assailed the revisional order stating that it was dismissed without any valid justification. He also challenged the competence of consolidation authorities to entertain any recall application after such a long time and on the basis of above arguments, he prayed for quashing of the impugned orders. Per contra, learned counsel for the Opp. party no.2 contended that petitioner whose original holding consisted of an area 12 Biswa, 13 Dhur only, was illegally allotted chak having an excess area i.e. 3 Bigha 8 Biswa and 1 Dhur which, proceeds the submission, surpassed the maximum limit of 25% as postulated by the proviso to Section 19 (1) (b) of the U.P. Consolidation of Holdings Act while on the other hand, the contesting Opp. party no. 2 whose original holding consisted of 13 Bigha and 2 Biswas was allotted a chak having only 10 Bigha, 4 Biswa and 10 Dhur only attended with further arguments that area of his chak was illegally reduced in breach of the principles of allotment. It was also contended that one Aftar, who happened to be petitioner's brother was also allotted a chak having enhanced area against his original holding exceeding the limit of 25%. The learned counsel next argued that it was after gaining knowledge about these orders that the respondent no. 2 had filed a recall application which was rightly allowed and thereafter, allotments were made strictly in accordance with the provisions of the law.
In the light of the facts on record and regard being had to the rival submissions, it is clearly eloquent from the record that the petitioner was allotted a chak having an area of 3 Bigha 2 Biswa and 16 Dhur as against his original holding consisting of12 Biswa 13 Dhur only attended with the fact that his brother Aftar with identical area was also allotted a chak having an area of 2 Bigha, 16 Biswa and 13 Dhur. There is nothing on record to justify the allotment of a chak in their favour having excess area beyond 25% against their original holdings in utter disregard of proviso to Section 19 (1) (b) of the U.P. Consolidation of Holdings Act. The proviso to section 19 (1) (b) of the Act postulates that except with the permission of the Director of Consolidation, the area of the holding or holdings allotted to a tenure holder shall not differ from the area of his original holding or holdings by more than 25% of the latter. From a further close scrutiny of record it would transpire that inspite of orders impugned herein whereby the areas of chaks allotted by means of order dated 27.10.1984 were rectified, and sized up and still, quite obviously the petitioner has an area of 1 Bigha, 3 Biswa and 6 Dhur in lieu of his original holding consisting of an area of 12 Biswa and 13 Dhur only. Similarly, the land allotted to Aftar too has area, that is, more than 25% as against his original holding inspite of exercise undertaken pursuant to impugned orders.
Coming to the tenability of the impugned orders, in the above perspective, I am of the view that the impugned orders do not suffer from any infirmity warranting interference by this Court and hence I feel disinclined to interfere with the impugned orders in so far as allotment to Opp. party is concerned. However, in view of the fact that petitioner and his brother Aftar are not entitled to get allotment of areas in their chaks exceeding 25% as against the areas in their original holdings and also considering that there is no person for allotment as contained in proviso to Section 19 (1) (b) of the Act, I am of the view that the interest of justice would be best attained if the matter is relegated to the Deputy Director Consolidation to delve into this facet of controversy whether the petitioner and his brother Aftar are entitled to allotment to the extent exceeding 25% as embodied in proviso to Section 19 (1) (b) of the U.P. Consolidation of Holdings Act.
As stated supra, it is settled principle as indicated above that the area of the holding or holdings allotted to a tenure holder would not differ from the area of his original holding by more than 25% except with the permission of the Director Consolidation who is competent to pass appropriate in this regard. It is nobody's case that the Director of Consolidation passed any order permitting allotment of an area exceeding 25% in favour of petitioner or his brother vis-à-vis their original holding, and therefore, the matter is relegated to the end of Deputy Director Consolidation attended with the direction that he shall look into the matter afresh and pass appropriate order in accordance with the provisions contained in proviso to section 19 (1) (b) of the Act after providing opportunity to the parties.
In the result, the writ petition is disposed of accordingly in terms of above directions.
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