# Nand Kishore and others v. Deputy Director of Consolidation, Basti and others

- **Citation:** (2004) 1 ILRA 257
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-03-03
- **Case number:** Civil Misc. Writ Petition No. 3947 of 1996
- **Bench:** S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nand-kishore-and-others-v-deputy-director-of-consolidation-basti-and-others-40337
- **Pages:** 6

## Headnote

258 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
U.P. Consolidation of Holdings Act-Ss. 19
and 20--Allotment of Chaks-Two chaks
proposed
for
allotment
by
A.C.O.
objection by petitioners-allowed-Entire
land allotted at one chak by C.O.- On
appeal judgment of Consolidation Officer
reversed and petitioners given three
Chak
by
Settlement
Officer
Consolidation-plea
that
judgment
of
Settlement
Officer
was
exparteRestoration
and
revision
filed
by
petitioners dismissed-writ challenging
judgments of DDC and SOC-High Court's
jurisdiction under Article 226 is limitedDDC considered Convenience of Opposite
parties-But
failed
to
consider
inconvenience and hardships of the
petitioners-matter
remitted
back
for
fresh
examination
in
light
of
rival
claims/pleadings in accordance with law.

Held: Para 7

Deputy Director of Consolidation has
mentioned
the
convenience
of
the
opposite parties but at the same time it
is clear that he has not considered the
inconvenience and the hardship which is
being claimed by the petitioners and
thus this court is satisfied that matter
needs
fresh
examination
by
the
revisional court in the light of the rival
claim/pleadings. It is to made clear that
this
court
has
not
examined
and
expressed any opinion in respect to
correctness or otherwise about the claim
of either of the parties and thus it is pen
for
the
revisional
court
to
take
appropriate decision in accordance with
law, keeping in mind the equity between
the parties.

## Text

1 All] Nand Kishore and others V. Deputy. Director of Consolidation, Basti and others 257
some constructions by erecting iron
angles and concrete pillars. The trial court
has also recorded a finding that the tenant
on the chabutra in front of the shop had
constructed a wooden shop and after
constructing a chabutra in the path way
had covered it by tin shed, which was
placed upon concrete pillars and angle
irons. Constructing a wooden shop or
placing a tin on the existing walls may not
amount to such changes as are mentioned
in section 20(2)(c) of the Act. However
constructing concrete pillars and placing
tin shed thereupon does amount to such
structural change. Finding has been
recorded that the changes affected and
constructions made by the tenant have
blocked the shop in dispute and path way
has also been narrowed. The constructions
therefore disfigured the shop in dispute.
In this regard reference may be made to
1988 (2) ARC 243 (S.C). In the said
authority tin shed had been fixed on pucca
pillars.

12. Accordingly I hold that the suit
of the plaintiff landlord was liable to be
decreed on the ground mentioned in
section 20(2)(c) of U.P. Act No.13 of
1972.

13. The authorities reported in 1990
(1) ARC 114 and 1991(1)ARC 557
regarding material alteration have not
taken into consideration the authority of
the Supreme Court reported in 1988 (2)
ARC 243 (supra). The facts in the
authority reported in 1990(2) ARC 460
were different from the facts of the instant
case. In the said authority construction
was supported on poles embedded in
ground. In the said authority concrete
pillars had not been constructed.

14. Various authorities have been
cited by both the sides regarding validity
of deposit u/s 30 of the Act. In all these
authorities it has been held that it is only
valid deposit, which can amount to
payment to landlord.

15. Accordingly writ petition is
dismissed.

16. However tenant petitioner is
granted time till 15.9.2004 to vacate
provided that within one month from
today he files an undertaking before the
prescribed authority to the effect that on
or before 15.9.2004 he will willingly
vacate and handover the possession of the
property in dispute to the landlord. Within
one month from today tenant petitioner
shall also pay all the arrears of rent due
till 15.9.2004 after adjusting the amount
already deposited by him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2004

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 3947 of 1996

Nand Kishore and others
...Petitioner
Versus
Deputy Director of Consolidation, Basti
and others

 ...Respondents

Counsel for the Petitioners:
Sri Tripathi B.G. Bhai
Sri Ram Sagar Chaudhery
Sri P.C. Singh

Counsel for the Respondents:
Sri P.N. Singh
Sri A.K. Singh
Sri U.N. Pandey
S.C.
http://www.allahabadhighcourt.nic.in
258 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
U.P. Consolidation of Holdings Act-Ss. 19
and 20--Allotment of Chaks-Two chaks
proposed
for
allotment
by
A.C.O.
objection by petitioners-allowed-Entire
land allotted at one chak by C.O.- On
appeal judgment of Consolidation Officer
reversed and petitioners given three
Chak
by
Settlement
Officer
Consolidation-plea
that
judgment
of
Settlement
Officer
was
exparteRestoration
and
revision
filed
by
petitioners dismissed-writ challenging
judgments of DDC and SOC-High Court's
jurisdiction under Article 226 is limitedDDC considered Convenience of Opposite
parties-But
failed
to
consider
inconvenience and hardships of the
petitioners-matter
remitted
back
for
fresh
examination
in
light
of
rival
claims/pleadings in accordance with law.

Held: Para 7

Deputy Director of Consolidation has
mentioned
the
convenience
of
the
opposite parties but at the same time it
is clear that he has not considered the
inconvenience and the hardship which is
being claimed by the petitioners and
thus this court is satisfied that matter
needs
fresh
examination
by
the
revisional court in the light of the rival
claim/pleadings. It is to made clear that
this
court
has
not
examined
and
expressed any opinion in respect to
correctness or otherwise about the claim
of either of the parties and thus it is pen
for
the
revisional
court
to
take
appropriate decision in accordance with
law, keeping in mind the equity between
the parties.

(Delivered by Hon'ble S.K. Singh, J.)

1. By means of this writ petition
petitioners have challenged the judgment
of the Deputy Director of Consolidation
dated 30.9.95 (Annexure-9 to the writ
petition) and that of the Settlement
Officer Consolidation dated 31.10.94 and
18.7.95 (Annexures 6 and 7 respectively).
2. For the purpose of disposal of the
writ petition, it will be useful to
summarize the facts. Proceedings are
under
Section
19
of
the
U.P.
Consolidation of Holdings Act which is in
respect to adjustment of chaks between
the chak holders. Petitioners are chak
holder No. 113 whereas respondent No. 3
is chak holder No. 281 and respondent
No. 4 to 6 are chak holder No. 280 which
was allotted to them at the stage of
Assistant Consolidation Officer. At the
initial stage petitioners were given two
chaks i.e. 1st on plot No. 282 etc. and
second on plot No. 442 etc. Against the
proposed
allotment
petitioners
filed
objection with the claim that their second
chak be abolished and entire land be
given on/near plot No. 282. Consolidation
Officer allowed petitioners objection. On
filing appeal by opposite party judgment
of the Consolidation Officer was reversed
and petitioners were given three chaks.
On the plea that the judgment of the
Settlement Officer Consolidation was exparte, restoration was filed by the
petitioners which was also dismissed and
thereafter revision filed by the petitioners
also met to the same fate and thus all the
three judgments of the Deputy Director of
Consolidation and Settlement Officer
Consolidation are under challenge before
this court.

3. Submission of the learned counsel
for the petitioner is that petitioners claim
for grant of one chak on plot NO. 282
which happens to be their largest part of
holdings
was
allowed
by
the
Consolidation Officer in the light of the
consent given by the Rajkali w/o Shitla
Prasad who was mainly affected by that
adjustment
on
account
of
which
petitioners chak became one, but the
Settlement Officer Consolidation without
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1 All] Nand Kishore and others V. Deputy. Director of Consolidation, Basti and others 259
assigning any reason has disturbed the
adjustment as made by the Consolidation
Officer on account of which number of
chak of the petitioners became three.
Submission is that respondents have not
filed any objection against the proposed
allotment by the Assistant Consolidation
Officer and it is only on the petitioner's
objection change have taken place and
thus in any view of the matter petitioner's
position cannot be made more verse, as it
stood
at
the
stage
of
Assistant
Consolidation Officer. They were having
two chaks to which there was no
objection by anybody and now they have
been allowed three chaks by the order of
Settlement Officer Consolidation which
on the facts cannot be justified. It is
further submitted that order of the
Settlement Officer Consolidation was in
gross violation of principle of natural
justice which is clear from the order sheet
itself
as
no
notices
were
ever
issued/served
on
the
petitioners.
Submission is that the Deputy Director of
Consolidation has also dismissed the
revision without considering petitioner's
inconvenience/grievance and the hardship
just by simply stating the inconvenience
of the opposite parties. Lastly, it is argued
that in plot No. 282 petitioners are having
their boring and thus they will be
deprived of their irrigation facility. On
these score prayer for interference in the
impugned orders have been made.

4.

Learned
counsel
for
the
respondents, in response to the aforesaid,
submitted that all the three chaks of the
petitioners are on their original holding as
has been held by the Deputy Director of
Consolidation and therefore, no prejudice
can be said to have caused to the
petitioners by the impugned adjustment.
The argument is that averment in respect
to the boring in plot No. 282 is after
thought and it has been taken for the first
time in the writ petition and it is to
strengthen the claim the boring has been
installed after filing of the writ petition
and report in this connection has been
managed
and
thus
on
this
score
submission is that petitioners cannot
claim any advantage. Submission is that
in the matter of adjustment of chaks on
technical ground no interference is
required unless parties are able to prove
prejudice
on
account
of
impugned
arrangement.

5. In view of arguments of both
sides pleadings and the materials which
are available before this court including
the judgments of all the three courts have
been examined.

6. There cannot be any quarrel with
the preposition that in the matter of
adjustment of chaks scope of interference
by this court is limited. There also cannot
be two views that in the matter of
adjustment both sides in no case can be
found to be satisfied as on acceptance of
the claim of one party the other side is to
remain dis-satisfied and thus in that
situation convenience and hardship of the
parties has to be comparatively weighed.
It is to be seen that by accepting a
particular set of claim, how other side is
placed. The balance is to be maintained in
making the adjustment. Needless to say
that adjustment of chak has great
importance to the chak holders as on its
finality parties are to remain contended
with the particular piece of land at a
particular place for all the times to come
and thus if for various kind of hardship
i.e. (i) chak not being near irrigation
facility (ii) number of chak having been
increased (iii) land not being of good
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260 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
quality etc. parties will remain sufferer for
ever. On a close look to the plight of the
poor farmer in the village it becomes
apparent that in small holding some of the
tenure holders by growing vegetables or
by limited means of irrigation are able to
produce the crops to maintain their
families and thus if the land allotted in
their chak is not convenient for their
purpose or number of chaks are increased
without any lawful justification and for
various other alike reasons if the Chak
holder is not happy then that is to be
rectified by the court. Certain broad
norms have been provided for adjustment
of chaks under Section 19 of the U.P.C.H.
Act. The main thrust of Section 19 of the
Act appears to be that (i) the land allotted
to the tenure holder should not differ from
the area of his original holding by more
than twenty five per cent. (ii) every tenure
holder as far as possible be allotted a
compact area at the place where he holds
the largest part of his holdings. (iii) tenure
holder should not be allotted more than
three chaks except with the approval in
writing, of the Deputy Director of
Consolidation (iv) Every tenure holder as
far as possible be allotted plot on which
his private source of irrigation or any
other improvement is in existence (v)
every tenure holder be allotted as far as
possible the chaks in conformity with the
process of rectangulation. The intention of
providing
norms/guidelines
regulating
adjustment of chak appears to be that
consolidation authorities may not be able
to act in arbitrary manner and at the same
time interest of tenure holder is protected.
The use of words "as far as possible" at
various places in Section 19 of the Act
has been interpreted by this court in
several cases and it has been ruled that
guidelines are to be followed unless it is
not possible to follow them in a particular
situation of the case. It is in this backdrop
the writ petitions coming to this court
against the orders arising out of chak
proceedings are to be dealt with. Of
course, so far the power of scrutiny by
this court is concerned that is not confined
within the ambit of guidelines so provided
in Section 19 of the U.P.C.H. Act as this
court
while
exercising
the
equity
jurisdiction can always balance the equity
in particular set of fact and therefore, it is
in each individual case on its particular
fact balance of convenience and equity
between the parties is to be balanced.

7. So far the case in hand is
concerned, admittedly at the stage of
Assistant
Consolidation
Officer
petitioners were given two chaks i.e,. one
on plot No. 282 etc. and other on plot no.
442 etc. Against the proposed adjustment
by the Assistant Consolidation Officer
respondents did not file any objection. It
is only the petitioners who filed objection
before the Consolidation Officer claiming
only one chak on plot No. 282 etc. For
accepting the petitioners claim one
Rajkali w/o Shitla Prasad whose plot was
to be affected gave her consent as has
been recorded on 23.7.1994 (Annexure-3
to
the
writ
petition)
upon
which
Consolidation Officer made many chaks
and made their chak to be one in number.
Respondents filed appeal. Order sheet on
the record demonstrates that on 21.9.94
there is order for registration of the appeal
and thereafter there is order sheet dated
28.10.94 which states that arguments have
been heard at Assistant Consolidation
Officer office and then 31.10.94 was fixed
for orders. There is no mention in the
order sheet for issuance of the notice to
the opposite parties. There is nothing on
the record to demonstrate that how and in
what manner respondents in the appeal
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1 All] Nand Kishore and others V. Deputy. Director of Consolidation, Basti and others 261
were noticed and served and whether they
engaged any counsel. The order of the
Settlement
Officer
Consolidation
by
which appeal of the respondents was
allowed on its examination also do not
appear to contain any reason whatsoever
for making drastic changes in the chak of
the petitioners. No reason has been
assigned
for
making
chak
of
the
petitioners to be three in number from
two. In the event petitioners would not
have
filed
objection
before
the
Consolidation Officer number of their
chaks would have remained as two as
nobody
either
objected
against
the
proposal of the chak in favour of the
petitioners at the stage of Assistant
Consolidation Officer or has otherwise
claimed any change and thus increase in
the number of chak of the petitioners as
three from two which was originally
proposed by the Assistant Consolidation
Officer appears to be without any reason
and without any claim in that respect by
the opposite parties. Of course the tenure
holders can be allotted chaks but if the
number of chak of tenure holder can be
minimized and it remains as two or one in
number then that is always to facilitate
Chak holder in farming and will be
convenient in every respect. This is the
very purpose of allotment of chak
proceedings as in this process various
plots of the tenure holders which are if
spread
here
and
there
they
are
consolidated and they are made compact
at the place where the tenure holder holds
largest part of his holdings, as is clear
from the provisions as are contained in
Section 19 (1)(e) of the U.P.C.H. Act.
Thus in the event Consolidation Officer
by
accepting
petitioners
claim
of
allotment of one compact chak on plot
NO. 282 in the light of the consent given
by Rajkali reduced the number of chak of
the petitioners from two to one, it was
obligatory on the part of the Settlement
Officer Consolidation to have assigned
cogent
reasons
to
unsettle
that
arrangement. Material before this court
and the judgment of the Settlement
Officer Consolidation makes it clear that
reversal of the adjustment, as made by the
Consolidation Officer was neither made
after an opportunity in any manner to the
petitioners nor any reason has been
assigned for doing the same. Deputy
Director of Consolidation, of course, has
stated in his judgment that opposite
parties on acceptance of the petitioners
claim will not be having their chaks on
their original holding but at the same time
it is clear that opposite parties have not
filed
any
objection
before
the
Consolidation Officer in respect to their
grievance, if any, and therefore, for
making position of the petitioners more
verses than it was at the stage of the
Assistant Consolidation Officer it is clear
that
neither
Settlement
Officer
Consolidation nor Deputy Director of
Consolidation has mentioned any ground
and thus the matter needs deeper
attention. There appears to be a dispute
regarding existence of the boring in plot
No. 282, as claimed by the petitioners in
para 2 of the writ petition and in certain
documents as has been filed before this
court, but as the impugned judgment has
been found to be faulty on other grounds
it will be for the Deputy Director of
Consolidation to examine the disputed
question of fact about existence of the
boring in plot NO. 282 in the light of the
rival claim/pleadings. ON the fact of the
present case for the reasons indicated
above, this court is satisfied that two
chaks as was proposed by the Assistant
Consolidation Officer, which was reduced
to one in number by the Consolidation
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262 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
Officer with the consent of the Rajkali
was cancelled by the Settlement Officer
Consolidation and was made three in
number without assigning any reason
whatsoever
and
without
any
notice/opportunity to the petitioners on
account of which petitioners apparently
suffered
serious
prejudice.
Deputy
Director of Consolidation has mentioned
the convenience of the opposite parties
but at the same time it is clear that he has
not considered the inconvenience and the
hardship which is being claimed by the
petitioners and thus this court is satisfied
that matter needs fresh examination by the
revisional court in the light of the rival
claim/pleadings. It is to made clear that
this court has not examined and expressed
any opinion in respect to correctness or
otherwise about the claim of either of the
parties and thus it is open for the
revisional court to take appropriate
decision in accordance with law, keeping
in mind the equity between the parties.

8. Accordingly, for the reasons
recorded above this writ petition succeeds
and is allowed. The impugned judgments
of the Deputy Director of Consolidation
dated 30.9.95 (Annexure-9 to the writ
petition) and that of the Settlement
Officer Consolidation dated 31.10.94 and
18.7.95 (Annexures 6 and 7 respectively
to the writ petition) are hereby quashed.
The matter is send back to the revisional
court for fresh decision, preferably
without a period of three months from the
date of receipt of certified copy of this
order by either of the parties, without
allowing any unwarranted adjournment to
them.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 4.3.2004

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 38675 of 2003

Rajesh Kumar

...Petitioner
Versus
I.I.T., Kanpur and others ...Respondents

Counsel for the Petitioner:

Counsel for the Respondents:
Sri S.N. Verma
Sri Yashwant Varma

Constitution
of
India,
Article
226Principles of Natural Justice-Violation
of-Incident of threatening inmates of
hostel of HBTI by petitioners-Students of
IIT Kanpur-Investigation made by SSAC-
which
recommended
termination
of
academic
programme
of
petitionersDirector of IIT-Kanpur being Chairman
of
Academic
Senate
of
Institute,
impugned
order
accepting
recommendation-In a matter in which
educational
carrier
of
six
students
involved, institution not follow basic
principles of natural justice-None of
supply charges-No evidence/statement
recorded in presence of accused, nor any
evidence produced before High Court to
show as to how they were involvedPetitioners amongst others called to
narrate incidents-No witness produced
before them, nor they were confronted
with any allegation of participation
incident-No opportunity given to defend
themselves-Findings
highly
vague,
uncertain
and
of
general
natureApologies
not
amounting
admissionAllegation,
do
not
call
for
harsh
punishment-Authorities failed to adopt
reformative approach i.e. deterrence
ideology- Impugned orders quashed.

Held-Paras 17 & 25
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