# Asha Ram Misra and others v. The Joint Director of Consolidation, Allahabad and another

- **Citation:** (2006) 3 ILRA 1207
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-22
- **Case number:** Civil Misc. Writ Petition No. 13495 of 1983
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asha-ram-misra-and-others-v-the-joint-director-of-consolidation-allahabad-and-40674
- **Pages:** 5

## Headnote

Sri N.D. Kesari
Sri P.K. Kesari
Sri R.R.K. Trivedi
Sri Krishna Kumar
S.C.

U.P.
Consolidation
of
Holdings
ActSection 48 (3)-Demand of Chak Naliafter finalization of proceeding under
Section 9 and 20 of the Act-whether such
demand can be allowed for benefits of
individuals? Held-'yes'.

Held: Para 14

The Deputy Director of Consolidation
vide impugned order dated 4.8.1983
recalled the earlier order dated 7.6.1983
and
remanded
the
case
back
to
Consolidation Officer to submit a fresh
report after hearing the parties and after
making a spot inspection himself to
ascertain whether the proposed ''nali' is
being carved out on the area of plot no.
256/2 which is chak out or from the area
of
the
plot
which
is
included
in
consolidation operation.
Case law discussed:
1982 RD-350
1982 ALJ-559
1982 AWC-160
1980 AWC-146
W.P. No.7791/80 decided on 9.5.82
1981 (2) R.D.-198
1983 RD-22
1995 RD-53

## Text

3All] Samar Singhl V. The State of U.P. and others 1207

5. In the present case, the notice
itself is misconceived as even if the
ground mentioned in the notice is taken to
be correct then too the licence of the
petitioner cannot be cancelled as the same
is not a ground contemplated in law for
cancellation or suspension of the arms
licence. As such the order of suspension
as well as the proceedings for cancellation
in pursuance thereof, are both liable to be
set aside.

6. This writ petition stands allowed
stands and the order dated 29.5.2006
passed by the no. 2 is quashed. If in
pursuance of the suspension order the
licensed weapon of the petitioner has been
seized, the same shall be released to the
petitioner forthwith.

No costs.
 Petition Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2006

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 13495 of 1983

Asha Ram Misra and others ...Petitioners
Versus
The Joint Director of Consolidation,
Allahabad and another ...Respondents

Counsel for the Petitioners:
Sri Swarajya Prakash

Counsel for the Respondents:
Sri N.D. Kesari
Sri P.K. Kesari
Sri R.R.K. Trivedi
Sri Krishna Kumar
S.C.

U.P.
Consolidation
of
Holdings
ActSection 48 (3)-Demand of Chak Naliafter finalization of proceeding under
Section 9 and 20 of the Act-whether such
demand can be allowed for benefits of
individuals? Held-'yes'.

Held: Para 14

The Deputy Director of Consolidation
vide impugned order dated 4.8.1983
recalled the earlier order dated 7.6.1983
and
remanded
the
case
back
to
Consolidation Officer to submit a fresh
report after hearing the parties and after
making a spot inspection himself to
ascertain whether the proposed ''nali' is
being carved out on the area of plot no.
256/2 which is chak out or from the area
of
the
plot
which
is
included
in
consolidation operation.
Case law discussed:
1982 RD-350
1982 ALJ-559
1982 AWC-160
1980 AWC-146
W.P. No.7791/80 decided on 9.5.82
1981 (2) R.D.-198
1983 RD-22
1995 RD-53

(Delivered by Hon'ble Krishna Murari, J.)

1. By means of this petition filed
under Article 226 of the Constitution of
India, the petitioners have challenged the
order dated 4.8.1983 passed by the
Deputy Director of Consolidation, in
exercise of power under Section 48(3) of
the U.P. Consolidation of Holdings Act
(for short ''the Act'), remanding the
proceedings back to the Consolidation
Officer.

2. The facts are that after finalisation
of proceedings under Section 9 as well as
Section 20 of the Act an application was
moved by opposite party no.2 that he has
not
been
provided ''chak nali' for
1208 INDIAN LAW REPORT ALLAHABAD SERIES [2006
irrigation of plot nos. 257 & 259 included
in his chak from his tubewell installed
over his second chak no. 413 and as such
he may be provided the same through plot
no.
256.
The
Settlement
Officer
Consolidation vide order dated 1.1.1983
directed the Consolidation Officer to
submit a report after making an inquiry
and to send a proposal in case ''chak nali'
has not been provided. The Consolidation
Officer vide order dated 7.1.1983 called
for
a
report
from
the
Assistant
Consolidation Officer, who in his turn,
called for a report from the Consolidator.
Accordingly, the Consolidator submitted
a report dated 14.1.1983 that no ''chak
nali' has been provided for irrigation from
the tubewell existing in plot no. 413 and
accordingly, the same may be provided
which will affect the petitioner nos. 1 & 2.
The
Assistant
Consolidation
Officer
forwarded the report to the Consolidation
Officer on 14.2.1983. When the reference
reached
the
Settlement
Officer
Consolidation he found that reports are
ex-parte and as such he directed the
Consolidation Officer to submit a fresh
report after hearing the parties. The
Consolidation Officer after hearing only
the petitioner nos. 1 & 2 recorded that
they have not given consent to the
proposed ''nali' and directed the parties to
appear before the Settlement Officer
Consolidation
on
24.4.1983.
The
Settlement Officer Consolidation without
hearing
the
parties
forwarded
his
recommendation on 3.5.1983 to the
Deputy Director of Consolidation for
accepting the reference. The Deputy
Director of Consolidation vide order
dated 7.6.1983 accepted the reference exparte without any notice or opportunity of
hearing to the petitioners. The petitioners
thereafter, moved an application for
recalling the said order.
3. The case set up by petitioner nos.
1 & 2 was that plot no. 256/2 is chak out
and the same belong to all the petitioners
and they have their ''pucca house' &
''pucca madaha' and 6 ft. high boundary
wall standing on the land through which
the ''chak nali' is being proposed.

4.

The
Deputy
Director
of
Consolidation vide impugned order dated
4.8.1983 recalled the earlier order dated
7.6.1983 and remanded the case back to
Consolidation Officer to submit a fresh
report after hearing the parties and after
making a spot inspection himself to
ascertain whether the proposed ''nali' is
being carved out on the area of plot no.
256/2 which is chak out or from the area
of the plot which is included in
consolidation operation.

5. The impugned order of remand
has been challenged by the petitioners
mainly on the ground that no ''nali' can be
provided for the benefit of an individual
tenure-holder from the chak out land of
the petitioners or even from the ''bachat'
land as such the entire exercise is futile
and there was no justification to remand
the case back and the Deputy Director of
Consolidation ought to have rejected the
reference. Reliance in support of the
contention has been placed on the
decision of a learned Single Judge in the
case of Sri Ram Maharaj Dubey vs. Joint
Director of Consolidation, 1982 RD 350.
It has also been urged that all the
petitioners are co-tenure holders and the
reports have been submitted ex-parte
without hearing all of them and their
pucca construction standing on the land in
dispute through which ''nali' is proposed is
liable to be demolished.
3All] Asha Ram Misra and others V. The Jt. Director of Consolidation and another 1209
6. In reply it has been contended that
there is no specific prohibition under the
provision of the Act for not providing a
''nali' or chak road etc. to an individual
tenure holder and as such no illegality has
been committed by the Deputy Director of
Consolidation in remanding the case back
to the Consolidation Officer to submit a
fresh report in this regard after hearing the
concerned parties and making a spot
inspection.

7. I have considered the argument
advanced by learned counsel for the
parties and perused the record.

8. The question whether the
consolidation authorities have power to
provide ''nali' or chak road etc. for the
benefit of any individual tenure-holder
has drawn the attention of this court in
number of cases.

9. In the case of Sri Ram Maharaj
Dubey (Supra) relied upon by the
petitioners, a learned Single Judge has
held that chak road and ''nali' etc cannot
be provided for benefit of an individual
tenure-holder in exercise of power under
Section 48(3) of the Act and the same can
be provided only if they are considered to
be in the interest of tenure-holders in
general. The same view was taken in two
earlier decisions in the case of Raj Narain
&
others
vs.
Deputy
Director
of
Consolidation, 1982 ALJ 559 and writ
petition no. 7791 of 1980 Udai Bhan
Dubey & another vs. Sahayak Sanchalak
Chakbandi & others decided on 9.5.1982.
Again in the case of Ram Murat vs. Ma
Saran & others, 1982 AWC 160 and Sri
Pat vs. Haridwar, 1980 AWC 146, the
two learned Single Judges have taken the
same view.

10. In the case of Udai Bhan Dubey
(Supra), it was held that application of
individual
tenure-holder
wherein
he
prayed for providing ''rasta' to in the chak
of his father from village abadi was not at
all maintainable nor such request could be
considered by the Assistant Settlement
Officer Consolidation in exercise of his
power under Section 42A of the Act. In
the case of Sri Pat (Supra) another learned
Single Judge took the same view and it
was observed as follows:

"No provision has been pointed out
under the Act or the Rules framed under
the Act for providing a ''rasta' and ''nali'
to any private tenure-holder. In the
absence of any specific provision under
the Act or the Rules framed under the Act
for any act to be done by any authority,
nothing can be done by the Deputy
Director of Consolidation in exercise of
his powers under Section 48(3) of the Act.
In this view of the matter, the application
of the petitioner for providing ''rasta' &
''nali' from one chak to the other where he
has got his pumping set was not
maintainable".

11. The view taken in the case of Sri
Pat (Supra) was considered by another
learned Single Judge in the case of Rajpat
Tiwari & others vs. Deputy Director of
Consolidation, 1981 (2) RD 198 and it
was observed as follows :

"It is not correct to contend that
consolidation
authorities
have
no
jurisdiction to allot a chak road to an
individual
tenure-holder.
The
broad
contention put forth by the learned
counsel for the petitioner in this case for
attacking the impugned judgment on the
ground that the rivisional court has erred
in giving a chak road to o.p. no.4 is not
1210 INDIAN LAW REPORT ALLAHABAD SERIES [2006
acceptable to me. The purpose of the U.P.
Consolidation of Holdings Act is to allot
compact area to an individual tenure
holder. Even if there is no provision under
the Act to provide road to an individual
tenure-holder
incidental
power
of
providing chak road, pathway etc. to an
individual tenure-holder is inherent in the
consolidation authorities. If they are
debarred from providing a chak road to
an individual tenure-holder more harm is
likely to occur than they may have
jurisdiction to provide such road to
individual tenure holder. In my opinion it
is a necessary power in the consolidation
authorities to provide a path road etc. to
a tenure-holder with a view to carry out
the purpose of the Act".

12. This view was again reiterated in
the case of Rishi Narain vs. Deputy
Director of Consolidation, 1983 RD 22.

The conflicting opinion expressed by
the learned Single Judge on the point was
considered in the case of Chandrika Rai
vs. Deputy Director of Consolidation,
Ghazipur, 1995 RD 53 and it was
observed as follows :

"In my opinion, wherever chak road
or chak gool is provided, keeping in view
the problems of individual tenure-holder,
such provision sub-serves public purpose
as well besides serving the purpose of
individual tenure holders. Chak road or
chak gool so provided does not cease to
sub-serve public purpose merely because
it has been provided on consideration of
application filed by an individual tenureholder vis-à-vis his difficulties."

13. The contrary view taken in the
case of Ram Murat (Supra) and Sri Pat
(Supra) were held to be per in curium for
they were rendered in ignorance and
without considering the relevant statutory
provision. It was observed as follows:

"Both decisions aforestated have
been considered by Hon'ble K.P. Singh, J
in Rishi Narain (Supra). The decision in
the aforesaid two cases relied upon by the
counsel for the petitioner, are in my
opinion, per in curium having been
rendered without discussing the related
provision discussed hereinbefore. The
decision rendered in ignorance of the
relevant statutory provision are cited but
to be avoided and ignored on the doctrine
of per in curium as explained by the
Supreme Court in State of U.P. vs.
Synthetic & Chemical Limited".

14. I am in respectful agreement
with the view taken by the learned Single
Judge in the case of Chandrika Rai
(Supra). There being no bar under the
provision of the Act for not allotting road,
pathway, nali etc. to a tenure-holder the
authorities have inherent and incidental
power to allot the same even to an
individual tenure-holder under the general
power vested in them of providing chak
road, pathway etc. with the view to carry
out for the purpose of the Act.

15. In view of the above, the first
argument
advanced
by
the
learned
counsel
for
the
petitioners
that
consolidation authorities are not vested
with any power to provide ''chak nali',
''chak road' etc. to an individual tenureholder is not liable to be accepted.

16. In so far as the second argument
advanced by learned counsel for the
petitioners is concerned, the same has no
legs to stand in as much as the Deputy
Director of Consolidation while making
3All] Umesh Kumar Misra V. Union of India and others 1211
remand has directed the Consolidation
Officer
to
ascertain,
after
making
inspection himself, whether the proposed
''nali' passes through the area of the
disputed plot which is chak out or through
the area which is included in the
consolidation. The Deputy Director of
Consolidation has also taken care to direct
the Consolidation Officer to submit fresh
report after opportunity of hearing to all
affected parties.

17. However, in view of the
allegations made by the petitioners that
their pucca constructions are standing, the
Consolidation Officer while reconsidering
the case, shall keep in mind that in case he
submits a report afresh for providing
''chak nali' the same should be carved out
in such a manner so as not to disturb the
construction of the petitioners alleged to
be existing on the plot in dispute.

18. In view of the aforesaid
discussions, I am of the considered
opinion that the impugned judgment of
the Deputy Director of Consolidation
does not call for any interference from
this court. The Consolidation Officer shall
carry out the order of remand made by the
Deputy Director of Consolidation keeping
in mind the directions issued to him
hereinabove.

19. The writ petition accordingly,
fails and is dismissed.

However,
in
the
facts
and
circumstances, there shall be no order as
to costs.

 Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.09. 2006

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 16443 of 1998

Umesh Kumar Mishra
...Petitioner
Versus
Union
of
India,
through
Secretary,
Ministry of Home affairs, New Delhi and
others

 ...Respondents
Counsel for the Petitioner:
Sri R.K. Pandey
Sri S.K. Shukla

Counsel for the Respondents:
Sri K.C. Sinha
Sri Rajeev Joshi
S.C.

Constitution of India Art. 226-Service
law-Dismissal from Service-concealment
regarding pendency of Criminal case
during appointment-held-found guilty of
suppression of material fact. Subsequent
acquittal not immaterial.

Held: Para 10

In view of the above law on the subject I
do not find any merit in the submission
of the learned Counsel for the petitioner
that the order of dismissal of the
petitioner is liable to be quashed as the
petitioner has been acquitted in the
criminal case. It may be relevant to note
here that the petitioner has not been
dismissed form service on the ground
that a criminal case was pending against
him or he was involved in the same. In
fact his services were dispensed with
after holding a departmental inquiry in
which the petitioner was found guilty of
misconduct of deliberately suppressing
material information with regard to his
involvement in the criminal case while
getting himself enrolled.
Case law discussed: