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Ram Dhan v. Dy. Director Of Consolidation, Allahabad & Others - WRIT - B No. 10155 of 2007  RD-AH 10961 (2 July 2007)
Court No. 40.
Civil Misc. Writ Petition No. 10155 of 2007.
Deputy Director of Consolidation, Allahabad and others.
Hon'ble Vikram Nath, J.
This writ petition is directed against the judgement and order dated 26-12-2006 passed by the Deputy Director of Consolidation, Allahabad in Reference No. 48, State Versus Bachni and others, under Section 48(3) of the U.P. Consolidation of Holdings Act, 1961 (hereinafter referred to as the Act) whereby the Deputy Director of Consolidation accepted the reference.
The dispute relates to the Khata No.229 which originally consisted of three plots, namely, 624, 733/309 and 682. Plot No. 682 is not in controversy in the present case. The dispute relates to other two plots only, namely, 624 and 733/309. While deciding the objections under Section 9A(2) of the Act filed by Ramdhan (petitioner), the Consolidation Officer held that the share of Ramdhan (petitioner) was 1/2, the share of Lalji was 1/4 and share of Banshi Lal (respondent no.2) was also 1/4. The Consolidation Officer further recorded that Lalji had executed a valid sale-deed with regard to his entire share in favour of Banshi Lal ( respondent no.2). According to the Consolidation Officer, both the petitioner and respondent no.2 became co-sharers of equal areas. The Consolidation Officer further recorded that even though the actual area on record of plot no. 624 was 14405 sq. mts. but on the spot it was found that the actual land available was 13421 sq. mts.. It, accordingly, held that both the petitioner and respondent no.2 were entitled to 6710 sq. mts. each. Further as Banshi Lal had a separate Khata, being Khata no. 124, in which 3101 sq. mts. of plot no. 624 was recorded as sub-plot no. 624/2, therefore, the respondent no.2 would get 3410 sq. mts. from the remaining area of plot no. 624 recorded in Khata no. 229 and the petitioner would get 6710 sq. mts. of the said plot being its remaining area equivalent to 1/2 of the total area.
Similarly with regard to the plot no. 733/309 the Consolidation Officer found that on the spot the area available was 1192 sq. mts. out of which 296 sq. mts. was recorded in Khata no. 124 being exclusive Khata of Banshi Lal and therefore, after adjusting the said area from Khata no. 229, the petitioner would get 592 sq. mts and the respondent no. 2 will get 292 sq. mts.
Appeal was preferred by Ramdhan (petitioner) before the Settlement Officer of Consolidation which was registered as Appeal no.210, Ramdhan Versus Banshi Lal. The Settlement Officer of Consolidation admitted the share of the parties but disagreed with the finding of the Consolidation Officer only to the extent that as with regard to the sale made by Lalji in favour of Banshi Lal (respondent no.2) a separate Khata no. 124 had been carved out earlier and therefore, from the remaining area of the plots in Khata no. 229 ( the disputed khata), Ramdhan would be entitled to 2/3rd share and Banshi Lal would be entitled to 1/3rd share. The Settlement Officer of Consolidation instead of dividing the plots as per their share, proceeded to divide the Khatas as per the shares. This order of the Settlement Officer of Consolidation dated 24.4.2005 became final. No party challenged this order.
In view of the change in the share in the Khatas as determined by the Settlement Officer of Consolidation, a reference was drawn up by the Consolidation Officer under Section 48 of the U.P. Consolidation of Holdings Act, proposing to give equal area in the plots on the basis of the share rather than dividing the Khata no. 229 as per the share determined by the Settlement Officer of Consolidation. The Consolidation Officer while preparing the reference also took into consideration the fact that some part of the area of plot No.624 had been made chakout as there was tubewell of Banshi Lal and secondly that on the spot Ram Dhan was occupying more area of plot No. 624 as compared to Banshi Lal. Against the reference made by the Consolidation Officer the petitioner filed objections.
The Deputy Director of Consolidation accepted the reference by order dated 26.12.2006 holding that the reference has been made in accordance with the order of the Settlement Officer Consolidation dated 24.04.2005. It is this order of the Deputy Director of Consolidation which is impugned in the present Writ Petition.
Pleadings have been exchanged between the parties.
I have heard Sri A.K. Singh, learned counsel for the petitioner and Sri D.V. Jaiswal representing the respondent nos. 2 & 3 and have also perused the record.
The submission of the learned counsel for the petitioner is that as the order of the Settlement Officer of Consolidation dated 24.4.2005 became final and was binding between the parties as also the Consolidation Authorities, the reference ought to have been prepared strictly in accordance with the same. The area of pot no. 624 as recorded in Khata no. 229, after deducting area recorded in Khata no. 124 and after taking into consideration the area actually found on the spot the area which remained for allotment was 10320 sq. mts. According to the decision of the Settlement Officer of Consolidation holding 2/3rd share of the petitioner in Khata no.229, the area to which the petitioner was entitled in plot no. 624 would come to 6880 sq. mts. being 2/3rd of 10320 sq.mts. Further in plot no.733/309 the petitioner would be entitled to 2/3rd of the actual area available in Khata no. 229, which comes to 1192 sq. mts. minus 296 sq. mts. recorded in Khata no. 124. This would come to 896 sq. mts. and the petitioner being entitled to 2/3rd share it will come to 598 sq. mts.. According to him, despite the said determination of shares by the Settlement Officer of Consolidation by the order dated 24.4.2005, the Consolidation Officer as also the Deputy Director of Consolidation committed illegality in not allotting the correct area.
On the other hand, learned counsel for the respondents has submitted that the share of respondent no. 2 being 1/2 and equal to that of the petitioner, the allotment of area should be strictly by division of plots in the same share and not by division of Khata with respective shares.
From the pleadings filed by the respondents what has been sought to be established is that the respondent no. 2 would be entitled to equal share in plots and not according to the shares as determined by the Settlement Officer of Consolidation by the order dated 24.4.2005.
Having considered the submissions raised by the learned counsel for the parties and in view of the admitted position that the order dated 24.4.2005 has become final, which is also admitted by the respondent no.2 in the second Supplementary Affidavit in paragraph nos. 7 & 8, the khata is to be divided according to the shares in the khata No.229 determined by the Settlement Officer of Consolidation and not the plots.
As already noticed above it is Khata No. 229 which is to be divided according to the determined shares. In that event the petitioner would be entitled to a little additional area and if the total area of the two plots were to be divided according to the shares as they existed prior to the order of the Settlement Officer of Consolidation, then what the Deputy Director of Consolidation had done while passing the order on the reference may be said to be correct.
In this view of the matter order of reference passed by the Deputy Director of Consolidation on 26.12.2006 cannot be sustained and is to be set aside and the matter deserves to be remanded to the Deputy Director of Consolidation.
Since the order of the Deputy Director of Consolidation is being set aside and the matter is being remanded back it would be open to the parties to file their detailed objections before the Deputy Director of Consolidation and they are also permitted to raise any point not raised earlier, with regard to the nature of the land, any advantage being claimed by them or otherwise which they can raise under law.
In view of the discussions made above this writ petition succeeds and is allowed, the order of Deputy Director of Consolidation dated 26.12.2006 is quashed and the matter is remanded to the Deputy Director of Consolidation for afresh decision in accordance with law and in the light of the observations made above.
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