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Smt. Chandra Jota & Others v. D.D.C., Azamgarh & Others - WRIT - B No. 7584 of 1989  RD-AH 14094 (16 August 2007)
(Judgment reserved on 11.5.2007)
(Judgment delivered on 16.8.2007)
Civil Misc. Writ Petition No.7584 of 1989
Smt. Chandra Jota and others vs. Deputy Director of Consolidation, Azamgarh and others
Heard learned counsel for the parties.
This writ petition was earlier allowed by me on 20.4.2006 without hearing any one on behalf of respondents as no one had appeared. Thereafter re-hearing application was filed on behalf of contesting respondents which was allowed on 9.2.2007 and judgment and order dated 20.4.2006 was set aside. Thereafter arguments of learned counsel for both the parties were heard on merit of the writ petition on 11.5.2007 and judgment was reserved.
Land, even though entered as agricultural land in the revenue record but having abadi/commercial potential belonging to different parties of this writ petition was disturbed and allotted to other persons (or interchanged between petitioners and respondents) by the consolidation authorities giving rise to this writ petition.
Valuation of land having abadi/commercial potential cannot be determined categorically in accordance with the formula provided therefore under U.P.Imposition of Ceiling on Land Holdings Act and the Rules framed thereunder hence it is always advisable/fairly essential that such type of land shall not be disturbed in consolidation proceedings and it shall be left with the person whose original holding it is and who has got a previous right of holding the same. The purpose of consolidation is to consolidate the agricultural lands and not abadi or commercial lands. If an agricultural land is used for abadi or commercial purposes, a certificate to that effect under Section 143 of U.P.Z.A.&L.R. Act may be obtained by the tenure holder concerned. However, it is not necessary to obtain such certificate. For using the agricultural land for abadi or commercial purposes no prior permission is necessary. Moreover even if a particular piece of land is not actually being used for abadi still it may have abadi potential due to its nearness to abadi. Even if agriculture is being actually done on such land still it will have abadi potential and is likely to fetch at least ten times consideration if sold than an equal area of land which has got only and only agricultural potential.
The main dispute in this writ petition is about plot nos. 193 and 193/361. This writ petition arises out of second consolidation proceedings. After the conclusion of first consolidation proceedings plot no. 193 was bifurcated into two plots i.e. 193 area 2.051 acres and 193/361 area 0.439 acres. Petitioner nos. 1 and 2 i.e. Smt. Chandra Jota and Smt. Kalawati purchased an area of 0.230 acres of plot no.193 which belonged to Banshu. Normally such a small area is purchased for abadi purposes and not for agricultural purposes. Moreover it is admitted to both the parties that said plot is situate just adjacent to the abadi and also near the road. This position is also clear from the map brought on record through supplementary counter affidavit filed on 14.3.2007, duplicate copy of which was supplied on the date on which arguments were heard.
This writ petition is directed against order passed by Deputy Director of Consolidation, Azamgarh on 28.2.1989. Through the said order several revisions were decided. Petitioners are aggrieved only by that part of the judgment which was given in respect of revision no.700 - Harish Chandra and others vs. Ramayan and others and revision no.701 - Banshu and others vs. Jhangatu and others. Banshu and Harish Chandra are respondent nos. 2 and 3 in this revision. The Consolidation officer and Settlement Officer Consolidation had allotted no part of plot no.193 to Banshu and Harish Chandra as it was not their original holding. Dy.Director of Consolidation allotted plot no.193 to Bansu and Harish Chandra.
The contention of learned counsel for Harish Chandra and Banshu is that plot no. 193/361 was their original holding which also had commercial/abadi potential.
In my opinion as an area of 0.230 acres of plot o.193 (total area 2.051 acres) had been purchased by petitioner nos. 1 and 2 before start of second consolidation proceedings hence the said area ought to have been allotted to (permitted to be retained by ) them from the said plot. However Deputy Director of Consolidation had no authority and jurisdiction to allot the remaining area of plot no.193 to other petitioners. Learned counsel for the petitioners has argued that petitioners nos. 3 to 7 are relations of petitioner nos. 1 and 2 hence they were allotted chak near petitioner nos. 1 and 2. Relationship is no ground for allotment of chak at a particular place under the scheme of consolidation. Moreover as observed earlier land having abadi/commercial potential shall be allotted to the person who holds the same since before start of consolidation. Learned counsel for the petitioner has further argued that petitioner nos. 3 to 7 had land adjacent to road bearing plot no.188 hence in lieu of that they were rightly allotted land from plot no.193. On the same principle petitioners nos. 3 to 7 should not have been displaced from plot no.188. Contesting respondents also deserved allotment on plot no.193/361 on the ground that it was their original holding and it was adjacent to road having abadi/commercial potential.
Accordingly writ petition is allowed. Judgment and order dated 28.2.1989 passed by Deputy Director of Consolidation (in revision nos. 700 and 701) is set aside. Matter is remanded to the Deputy Director of Consolidation who will decide the same in the light of the directions given above and with the further direction that parties concerned should be allotted land of their original holding in the plots having abadi/commercial potential and adjacent to the road from plot no.193, 193/361 and 188. All other plots adjacent to the road and having abadi/commercial potential belonging to the parties of this writ petition before start of second consolidation proceedings should also be allotted to them. The parties are directed to appear before Deputy Director of Consolidation concerned on 24.9.2007. If any party likely to be affected does not appear then notice must be issued to him before deciding the matter. Deputy Director of Consolidation shall make all efforts to decide the matter before the end of the year 2007.
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