# Nathunee and others v. Deputy Director of Consolidation, Ghazipur and another

- **Citation:** (2005) 1 ILRA 103
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-11-16
- **Case number:** Civil Misc. Writ Petition No. 2299 of 2002
- **Bench:** S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nathunee-and-others-v-deputy-director-of-consolidation-ghazipur-and-another-40299
- **Pages:** 5

## Headnote

U.P. Consolidation of Holdings Act-Ss. 19
and 20-Allotment of chaks-Consolidation
of
Officer
made
adjustments
after
making spot inspection-Confirmation of
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
104
order of C.O. by Appellate AuthorityRevision
before
DDC
allowed
writ
petition-When lower authorities decided
claim of parties after making spot
inspection, held, it will be mandatory for
Revisional
Court
to
makes
spot
inspection while updating arrangement
made
by
Court
below-Hence
case
remanded.

Held: Para 6

Although making of spot inspection by
Revisional court in each and every case,
in allotment of chak proceedings may
not be said to be mandatory but, in view
of the observation as made above,
specially in respect to the cases where
equity has to be balanced, in the light of
the spot situation and specially when
lower authorities have decided the claim
of
the
parties
after
making
spot
inspection, it will be mandatory for the
Revisional court to make spot inspection
while upsetting the arrangement made
by the court below. In respect to various
factual
aspects
as
pleaded
by
the
petitioner in his objection before the
Consolidation
Officer
and
as
stated
before this Court, it appears to be in the
ends of justice that Revisional court may
be called upon to make spot inspection,
keeping in mind the stand of the
respondents and then decide the matter
after giving adequate opportunity of
hearing to the parties, in accordance
with law. Needless to say that decision
by
Revisional
court
will
be
his
independent exercise being uninfluenced
by
any
observation
or
finding
so
recorded by the lower courts as the
Revisional court is the last court of fact,
empowered to deal with the matter on
the question of facts and law as well.
Thus, it is for the Revisional court now to
take up the matter pursuant to the
command of this Court and to decide the
claim of parties as observed above,
without
allowing
any
unwarranted
adjournment
to
them
unless
it
is
required for very compelling reason,
preferably within a period of four months
from the date of receipt of a certified
copy of this order from either of the
parties. It is made clear that this Court
has not expressed any opinion either
way in relation to the merits of claim of
the parties.

## Text

http://www.allahabadhighcourt.nic.in
1All] Dr. Birendra Singh V. Director of Education, Higher and others
103
under the seal of principal and
thereby committed disobedience of
the orders. A letter dated 9.10.2004
was given by the accountant of the
college to the Secretary, Committee
of Management informing that the
officiating principal has passed an
order that all the bills-voucher and the
cheque book would be sealed in the
name of principal from today.

iv. A reply was called from the petitioner
by the committee of management by
its letter dated 11.10.2004 that, being
an officiating principal, why he has
issued the cheques under the seal of
principal of the College.

v. The petitioner was also found guilty
of
misconduct
of
direct
correspondence with the Director
Higher Education, University and
State Government without informing
the committee of management and the
records of the correspondence was
called
by
the
committee
of
management, but same was not made
available by the petitioner.

vi. The petitioner has also not followed
the order dated 1.10.2004 of the
committee
of
management
of
removing the two security guards
namely Sri Badri Nath Tiwari and Sri
Rajendra Singh from the security
arrangement and allowed them to
continue in service which is clearly
evident from the attendance register
of the College.

vii. That
in
order
to
cover
his
irregularities and misconducts the
petitioner is not making available to
the management all the relevant
papers and audit reports of the
college. A letter dated 30.9.2004 was
given to the petitioner to this effect by
the committee of management.

viii. On 11.10.2004 a surprise inspection
was
made
by
the
Secretary,
Committee of Management and it was
found that a number of irregularities
being conducted in the college which
is clear evidence of disregard of the
utmost object and purpose of the
College.

ix. There
are
several
incidents
of
disobedience of the orders and of
misconduct of the petitioner as
officiating principal and on calling for
the explanation, he abstained from his
accountability.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2004

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

Civil Misc. Writ Petition No. 2299 of 2002

Nathunee and others
 ...Petitioners
Versus
Deputy
Director
of
Consolidation,
Ghazipur and another
 ...Respondents

Counsel for the Petitioners:
Sri P.N. Kushwaha
Sri Triveni Shanker

Counsel for the Respondents:
Sri H.L. Pandey
Sri Awadhesh Narain Srivastava
S.C.

U.P. Consolidation of Holdings Act-Ss. 19
and 20-Allotment of chaks-Consolidation
of
Officer
made
adjustments
after
making spot inspection-Confirmation of
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
104
order of C.O. by Appellate AuthorityRevision
before
DDC
allowed
writ
petition-When lower authorities decided
claim of parties after making spot
inspection, held, it will be mandatory for
Revisional
Court
to
makes
spot
inspection while updating arrangement
made
by
Court
below-Hence
case
remanded.

Held: Para 6

Although making of spot inspection by
Revisional court in each and every case,
in allotment of chak proceedings may
not be said to be mandatory but, in view
of the observation as made above,
specially in respect to the cases where
equity has to be balanced, in the light of
the spot situation and specially when
lower authorities have decided the claim
of
the
parties
after
making
spot
inspection, it will be mandatory for the
Revisional court to make spot inspection
while upsetting the arrangement made
by the court below. In respect to various
factual
aspects
as
pleaded
by
the
petitioner in his objection before the
Consolidation
Officer
and
as
stated
before this Court, it appears to be in the
ends of justice that Revisional court may
be called upon to make spot inspection,
keeping in mind the stand of the
respondents and then decide the matter
after giving adequate opportunity of
hearing to the parties, in accordance
with law. Needless to say that decision
by
Revisional
court
will
be
his
independent exercise being uninfluenced
by
any
observation
or
finding
so
recorded by the lower courts as the
Revisional court is the last court of fact,
empowered to deal with the matter on
the question of facts and law as well.
Thus, it is for the Revisional court now to
take up the matter pursuant to the
command of this Court and to decide the
claim of parties as observed above,
without
allowing
any
unwarranted
adjournment
to
them
unless
it
is
required for very compelling reason,
preferably within a period of four months
from the date of receipt of a certified
copy of this order from either of the
parties. It is made clear that this Court
has not expressed any opinion either
way in relation to the merits of claim of
the parties.

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

1. Challenge in this petition is the
order of Deputy Director of Consolidation
dated 9.1.2004 by which revision filed by
the opposite party has been allowed and
necessary changes has been made in the
chaks of the parties.

2. As the pleadings are complete, on
the request of learned counsel for the
parties, matter has been heard and is being
finally decided.

3. In the light of the submission as
advanced by learned counsel for the
parties, the Court has dealt with the
matter.

4. Proceedings are under section 20
of UPCH Act which is in respect to
allotment of land/plot in the respective
chaks of the chak holders.

5. It is not to be repeated again and
again that in the allotment of chak
proceedings, both parties can never be
satisfied. Unless the claim of both parties
is accepted they can not claim to be
satisfied. This may not be possible rather,
it is impossible. Every chak holder wants
best quality of land near Abadi, minimum
number of chaks, near roadside etc. and
thus both sides cannot be adjusted in the
light of their claim. In fact in the
allotment of chak proceedings, no party
suffers in terms of either reduction of area
or valuation as certain amount of variation
is permitted under section 19 of UPCH
Act. In these proceedings, parties are to
http://www.allahabadhighcourt.nic.in
1All] Nathunee and others V. Dy. Director of Consolidation, Ghazipur and another
105
be allotted compact chak as the land
possessed by them are spread at various
places and therefore, concern of the
consolidation authorities has to be to
consolidate the land of the tenure holders
which is spread at various places and
therefore, concern of the consolidation
authorities has to be to consolidate the
land of the tenure holders which is spread
and to allot minimum number of chaks
considering it to be more practicable,
keeping in mind the agricultural facilities
i.e. source of irrigation etc. Needless to
say that if the grievance of the parties is in
respect to enhancement/reduction of aria,
increase in number of chaks and no
allotment of chak on largest part of
holding and near source of irrigation or
any other ground of like nature then truth
and correctness in rival claim has to be
examined looking into CH Form 23 and if
required by making spot inspection.
Changes as made in these proceedings are
barred from fresh scrutiny in view of
Section 49 of UPCH Act. Thus, it is for
the court to test the claim of parties on the
aforesaid
frame.
Besides
norms
as
provided in Section 19 of UPCH Act, the
court has to balance equity between
parties. A chak holder may be having
small holding and other may be a big
tenure holder. The Courts will have to
give practical and human approach to the
matter. It is not to be reminded that in the
villages there are small number of persons
who are having big holding and better
source of agriculture which consists of
modern techniques in various respects.
The majority consists of holders of small
land and therefore, if they are not allowed
chaks considering their convenience that
will cause great hardship to them for
which, there cannot be any cure after
close of consolidation process. In view of
aforesaid, this Court need not to issue any
strict guideline or cannot lay down a
particular procedure/process to handle the
situation but of course, this can be
observed that it has to be the concern of
all the consolidation authorities right from
the stage of Assistant Consolidation
Officer up to the Deputy Director of
Consolidation to keep in mind equitable
aspect and comparative hardship besides
the norms as provided in Section 19 of
UPCH Act as that is to reflect on the
future growth of a family. In the past also
this
Court
has
opined
for
giving
consideration to the allotment of chak
matters in the aforesaid manner but now
again time has come to give caution to all
the consolidation authorities not to pass
orders in these proceedings, without
application of mind, without assigning
any
proper
reason
and
without
considering comparative hardship if is to
be faced by the parties on a particular
change as that will not be in accordance
with the spirit of this process for which,
law is made.

6. So far case in hand is concerned,
on the submission of learned counsel,
pleading and the judgments as placed on
record, it appears that Consolidation
Officer made adjustment after making
spot inspection, as stated in his order,
(although there is a dispute from the side
of respondents mainly for the reasons that
the order of the Consolidation Officer is
said to be without any notice/opportunity
to them). Be as it may, the matter went to
the Revisional court at the instance of
present opposite party, on conformation
of the order of Consolidation Officer, by
appellate authority. Learned counsel for
the respondents submits that prayer for
spot inspection was made on behalf of
revisionist
for
adjusting
the
chaks.
Admittedly, the order of Revisional court
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
106
do not indicate that he has made spot
inspection. On a perusal of the judgment
of the Deputy Director of Consolidation,
it appears that after hearing counsel for
parties and on perusal of records, he
proceeded to record findings in respect to
factual aspects i.e. particular portion of
land is of good quality and is adjacent to
abadi. The finding recorded by the
Deputy Director of Consolidation is under
serious challenge from the side of
petitioners. The claim of rival parties is
dependent on acceptance/rejection of their
contention about position of the spot and
therefore, this Court cannot be in a
position to record any finding by
accepting/rejecting the claim of either of
the party. In view of aforesaid, and
keeping in mind the request which is said
to have been made by the revisionist and
as the Consolidation Officer has referred
to spot inspection, it appears that it was
obligatory on the part of Revisional court
to have made spot inspection to record
finding in respect to spot situation, for the
purpose of accepting/repelling claim of
either of the parties. Although making of
spot inspection by Revisional court in
each and every case, in allotment of chak
proceedings may not be said to be
mandatory but, in view of the observation
as made above, specially in respect to the
cases where equity has to be balanced, in
the light of the spot situation and specially
when lower authorities have decided the
claim of the parties after making spot
inspection, it will be mandatory for the
Revisional court to make spot inspection
while upsetting the arrangement made by
the court below. In respect to various
factual
aspects
as
pleaded
by the
petitioner in his objection before the
Consolidation Officer and as stated before
this Court, it appears to be in the ends of
justice that Revisional court may be called
upon to make spot inspection, keeping in
mind the stand of the respondents and
then decide the matter after giving
adequate opportunity of hearing to the
parties, in accordance with law. Needless
to say that decision by Revisional court
will be his independent exercise being
uninfluenced by any observation or
finding so recorded by the lower courts as
the Revisional court is the last court of
fact, empowered to deal with the matter
on the question of facts and law as well.
Thus, it is for the Revisional court now to
take up the matter pursuant to the
command of this Court and to decide the
claim of parties as observed above,
without
allowing
any
unwarranted
adjournment to them unless it is required
for very compelling reason, preferably
within a period of four months from the
date of receipt of a certified copy of this
order from either of the parties. It is made
clear that this Court has not expressed any
opinion either way in relation to the
merits of claim of the parties.

7. For the reasons recorded above,
this petition succeeds and is allowed. The
impugned
judgment
of
the
Deputy
Director of Consolidation dated 9.1.2002
(annexure 4) to the writ petition is hereby
quashed and the matter is remitted back to
the concerned Revisional court to do the
needful, in the light of the observation as
made above.
Petition Allowed.
---------
http://www.allahabadhighcourt.nic.in
1All] Nathunee and others V. Dy. Director of Consolidation, Ghazipur and another
107
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 1.12.2004

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 18703 of 1999

Lala Yadav

...Petitioner
Versus
Secretary Madhyamiak Shiksha Parishad,
Allahabad and others
 ...Respondents

Counsel for the Petitioner:
Sri V.K. Srivastava

Counsel for the Respondent:
S.C.

Intermediate Education Act 1921-Chapt.
III Regulation 7 (as amended 1983)-
Correction of Date of Birth- in High
School Certificate - the dat e of birth as
recorded in Primary School was 5.7.63-in
Transfer Certificate wrongly recorded as
1.1.59- according the same mistake
continued in High School certificate also-
Petitioner got appointed as accountant
in UPSRTC and in service book also date
of birth recorded 1.1.59- passed High
School Examination in the year 1978-
representation made 1989- cannot be
changed- legal aspect explained.

Held- Para 10 & 11

If there was any mistake in the date of
birth entered into his service book the
petitioner ought to have moved an
application at the very initial stage
immediately when the mistake came to
his knowledge in 1978 or when he had
first signed his service book after the
same was prepared. The assertion of the
petitioner
that
he
moved
the
representation immediately on coming to
know about his incorrect date of birth is
falsified from the records.

The present case is squarely covered by
the aforesaid decision. In this view of
the matter, no writ of mandamus can be
issued to the educational authorities to
correct the date of birth of the petitioner
and hence the prayer of the petitioner
cannot be granted.
Case law discussed:
1994(24) ALR 173

(Delivered by Hon'ble Rakesh Tiwari, J.)

Heard counsel for the parties and
perused the record.

1. The controversy involved in this
writ petition is as to what is the correct
date of birth of the petitioner.

2. This petition has been filed for a
direction to the respondents to correct the
date of birth of the petitioner in all the
documents and certificate issued by the
educational and other authorities.

3. According to the petitioner,
1.1.1959, an incorrect date of his birth,
has been recorded in all the documents
including his service book and certificates
issued by the educational authorities. He
claims that his correct date of birth is
5.7.1963.

4. It appears that the petitioner was
appointed on the post of Accountant in
the
U.P.
State
Road
Transport
Corporation. The date of birth recorded in
the service book of the petitioner is
1.1.1959 on the basis of his High School
Certificate. The petitioner moved an
application to the Secretary Board of High
School and Intermediate Education, U.P.,
Allahabad for correction of his date of
birth as 5.7.1963 but the same is still
pending decision, hence this writ petition.