Shambhu and Others vs Dy. Director of Consolidation and Others

Ram Surat Ram (Maurya), J.—Heard Sri Chandra Sen Pal, for the petitioners and Sri A.K. Singh, for respondents. There is no dispute in respect of the facts, stated in the writ petition as such with consent of the parties, the writ petition is decided finally at this stage. The writ petition has been filed against the order of Deputy Director of Consolidation (respondent-1) dated 30.8.2013, passed in chak allotment proceedings, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

Plots. 12/3, 16/2, 18, 19/1, 28, 29, 33, 34, 58, 59, 61, 63, 66,. 67 and 73 were the original holdings of Shambhu (petitioner-1), in which he had 1/4 share (total area of his share was 0.588 hectare). Shambhu was proposed two chaks, i.e. the first chak was proposed on plots 12/2, 29 and 34 of an area of 0.152 hectare and second chak was proposed on plots 29, 33, 34 and 103 of an area of 0.345 hectare. Potni Devi (now represented by petitioners-2 and 3) was co-sharer in plots 28, 29, 34, 58, 59, 63, 66 and 67 (total area of her share was 0.493 hectare). Potni Devi was allotted two chaks, first chak was allotted on plots 58, 60, 61, 62, 63 and 66 of an area of 0.396 hectare and second chak was on plots 29 and 34 of an area of 0.114 hectare. Plots 2, 3, 33, 65, 67, 69, 73 and 103 were the original holdings of Arvind, in which he had 1/3 share. Arvind (respondent-3) was proposed two chaks, i.e. first chak was proposed on plots 29, 30, 31, 32, 33, 34 and 103 of an area of 0.736 hectare and second chak was proposed on plot 67 of an area of 0.359 hectare. Arvind filed an objection (registered as Case Nos. 77 and 78) u/s 20 of the Act, against his proposed chak, claiming for allotment of plots 29 etc. and deleting his chak on plot 67. The Consolidation Officer, by order dated 24.09.2012 allowed the objection of Arvind, by which second chak of Shambhu was deleted and in lie of it, he was allotted chak on plots 58, 60, 62, 63 and 64 and both the chaks of Potni Devi were deleted and she was allotted single on plot 67 of an area of 0.359 hectare.

Shambhu and others (the petitioners) filed an appeal (registered as Appeal No. 33), Dhana filed an appeal (registered as Appeal No. 34) and Mulari Devi filed an appeal (registered as Appeal No. 35) from the aforesaid order. Settlement Officer Consolidation, consolidated the aforesaid appeals and heard together, who by order dated 14.2.2013, allowed the appeals, by which both the chaks of Shambhu were deleted and he was allotted single chak on plots 29, 33, 34 and 103 of an area of 0.459 hectare and chak of Potni Devi on plots 67 was deleted and she was allotted two chaks i.e. first chak on plots 12/2. 29 and 34 and second chak on plots 58, 60, 61, 62, 63 and 64 of total area 0.497 hectare and Arvind was allotted chak on plot 67 of the area 0.359 hectare.

Arvind filed a revision (registered as Revision No. 8/11) from the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 30.8.2013 allowed the revision and allotted plots 29, 33, 34 and 103 of an area of 0.459 hectare in the chak of Arvind (respondent-3), plots 12/2, 29 and 34 and 58, 60, 61, 62, 63 and 64 of total area 0.497 hectare, in the chak of Shambhu (petitioner-1) and plot 67 (area 0.359 hectare in the chak of Potni Devi. Hence, this writ petition has been filed.

The Counsel for the petitioners submitted that in plot 67, share of Shambhu was 1/4 only and an area of 0.0225 hectare comes in his share and an area of 0.089 hectare of plot 67 comes in the share of Potni Devi. Share of Arvind in plot No. 67 was 0.253 hectare. Two brothers of Arvind were also co-sharers of the same area in plot 67, Some portion of plot 67 was valued at the rate of 40 paisa while major portion of it was valued at the rate of 60 paisa. Deputy Director of Consolidation allotted single chak to Potni Devi on plot 67, in which an area of 0.319 hectare was allotted of the value of 60 paisa due to which her area of the allotted chak has been materially reduced. Total area of original holding of Potni Devi was 0.493 hectare and she is now allotted chak of the area of 0.359 hectare. Thus her area has been reduced more than 27%. Potni Devi is a small tenure holder, reduction of substantial area of 0.134 hectare as against 0.493 hectare is causing grave injustice to her. He further submitted that Shambhu had planted grove on plots 29, 33 and 34. Settlement Officer Consolidation rightly allotted chak to Shambhu on these plots. Demand of Arvind for allotment of chak on plots 29, 33 and 34 was illegal. Private source of irrigation of Arvind was existing in plot 103, on which, he was allotted a chak of the area 0.737 hectare although his share in this plot was only 0.430 hectare. Deputy Director of Consolidation although found that Arvind was entitled for allotment of Chak on plot 103 but he has illegally allotted plots 29, 33 and 34 in his chak. By the order of respondent-1 area of the chak of Arvind was increased to 1.395 hectare as against 1.150 hectare of his original holdings. Thus his area has been increased about 17%. Thus Arvind was given undue benefits. Order of Deputy Director of Consolidation is illegal and liable to be set aside.

In reply to the aforesaid arguments, the Counsel for respondent-3 submitted that 5% valuation has been reduced from the tenure-holders for public contribution as such total, reduction of the area of Potni Devi will be about 23% which is within permissible limits. Arvind was having his private source of irrigation on plot 103 and he was rightly allotted single chak at this place, which is fully in consonance of the object of consolidation. He denied-that Shambhu has planted any grove on plots 29, 33 and 34. He relied upon the judgment of this Court in Nand Ram v. DDC and others 2004 (97) RD 711 in which it has been held that a tenure-holder is entitled for allotment of a chak at the place where he has his private source of irrigation and judgment in Writ-B No. 15113 of 2013 Paltu v. ADC and others, decided on 17.5.2013, in which it has been held that reduction of area upto 25% is permissible u/s 19 of the Act.

I have considered the arguments of Counsel for the parties and examined the record. Relevant portion of section 19 of the Act is quoted below:--

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

(a).......

(b) the valuation of plots allotted to a tenure-holder, subject to deductions, if any, made on account of contributions to public purposes under this Act is equal to the valuation of plots originally held by him.

Provided that, except with the permission of 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 twenty-five per cent of the latter;

(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;

A bare reading of Proviso to section 19(1)(b) makes it clear that 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 twenty-five per cent of the latter. For consideration of deduction of the area, contribution of valuation for public purpose Shall not be counted. In this case, by the order of reduced more than 27% of her original holdings. Which is illegal. At the same time area of the chak of Arvind has been increased about 17%. Potni Devi is a small tenure-holder as such reduction of area is causing grave injustice to her. In Writ-B No. 15113 of 2013 Paltu v. ADC and others, decided on 17.5.2013, reduction of the area was 10% only, as such it will not help respondent-3.

So far as the existence of private source of irrigation of Arvind in plot 103 is concern, Arvind was allotted a chak of an area of 0.737 hectare on plot No. 103 although his share in this plot was only 0.430 hectare. Section 19(1)(f) of the Act provides that a tenure-holder be, 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. Thus in the garb of private source of irrigation, injustice to the other tenure-holder cannot be overlooked as compliance of section 19(1)(f) is as far as possible.

As the order dated 30.8.2013 is being set aside on other grounds as such this Court is not going into the controversy that Shambhu had planted groves on plots 29, 33 and 34. It shall be open for Shambhu to raise this ground before respondent-1, who shall decide it. In view of the aforesaid discussion, the writ petition succeeds and is allowed. The order of Deputy Director of Consolidation (respondent-1) dated 30.8.2013 is set aside. The matter is remanded to Deputy Director of Consolidation who shall decide the revision afresh in accordance with law.