# Om Pal v. Deputy Director of Consolidation & Ors

- **Citation:** (2022) 1 ILRA 1196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-21
- **Case number:** Writ B No. 47744 of 2016
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-pal-v-deputy-director-of-consolidation-ors-48099
- **Pages:** 5

## Headnote

Law
-
U.P.
Consolidation
of
Holdings Act, 1953 - Sections 19(1)(e) &
48 - Allotment of chak - Validity -
petitioner original tenure holder of plot
No 217 & 218 which are roadside plot -
Petitioner's road side plot has not been
disturbed till the S.O.C. stage but at the
revisional stage without considering the
hardship of the petitioner, roadside plot
of the petitioner has been taken away at
the revisional stage, in order to make
the holding of both parties compact -
Comparative hardship not considered -
comparative hardship of both parties are
to be considered specially when the
chak of the tenure holder is going to be
disturbed - Reading of S.19(1)(e) shows
that consolidation authorities cannot
pass arbitrary order in order to make
chak compact without any reasons -
original holding situated adjacent to
public road should not be allotted to any
one except the original tenure holder or
to
be
excluded
from
consolidation
operation - Allotment of chak, illegal and
set aside - tenure holder may not be
deprived from his original road side plot
in the name of compactness of the chak
(Para 5, 6, 9, 10, 11)

Allowed. (E-5)

List of Cases cited:

## Text

1196 INDIAN LAW REPORTS ALLAHABAD SERIES
as the petitioner is in jail in furtherance of
the judicial order passed by the competent
court of law. Prima facie, the said judicial
order does not appear to be without
jurisdiction and has been passed in a legal
manner. Since the petitioner is in custody
by virtue of a judicial order passed by a
Judicial Magistrate, hence it cannot be said
to be an illegal detention.

14. In view of the judgment of
Hon'ble Apex Court in the case of Tasneem
Rizwan Siddiquee (supra) and the judgment
of this Court in the case of Rachna and
others (supra), the present habeas corpus
petition is not maintainable.

15. Accordingly, in view of the
discussions and observations made above,
the present habeas corpus petition is not
maintainable and the same is dismissed.

16. No order as to costs.
----------
(2022)01ILR A1196
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 47744 of 2016

Om Pal ...Petitioner
Versus
Deputy Director of Consolidation & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Suyigya Kumar Sharma, Sri Sudhir
Kumar Pandey, Sri Madan Ji Pandey, Sri
Suvigya Kumar Mishra

Counsel for the Respondents:
C.S.C., Sri Rahul Kumar Tyagi, Sri Mazhar
Abbas Zaidi

Civil
Law
-
U.P.
Consolidation
of
Holdings Act, 1953 - Sections 19(1)(e) &
48 - Allotment of chak - Validity -
petitioner original tenure holder of plot
No 217 & 218 which are roadside plot -
Petitioner's road side plot has not been
disturbed till the S.O.C. stage but at the
revisional stage without considering the
hardship of the petitioner, roadside plot
of the petitioner has been taken away at
the revisional stage, in order to make
the holding of both parties compact -
Comparative hardship not considered -
comparative hardship of both parties are
to be considered specially when the
chak of the tenure holder is going to be
disturbed - Reading of S.19(1)(e) shows
that consolidation authorities cannot
pass arbitrary order in order to make
chak compact without any reasons -
original holding situated adjacent to
public road should not be allotted to any
one except the original tenure holder or
to
be
excluded
from
consolidation
operation - Allotment of chak, illegal and
set aside - tenure holder may not be
deprived from his original road side plot
in the name of compactness of the chak
(Para 5, 6, 9, 10, 11)

Allowed. (E-5)

List of Cases cited:

1. Baid Urrahman @ Obedurrahman Vs Deputy
Director of Consolidation 2018 (138) R.D. 558

2.
Mahabeer
Vs
Deputy
Director
of
Consolidation, Jaunpur & ors. 2005 (99) RD 65

3. Ram Chandar Vs Deputy Director of
Consolidation, Varanasi 2006 (100) RD 212

4.
Ram
Badan
Vs
Deputy
Director
of
Consolidation, Azamgarh & ors. 2020 (147) R.D.
219

(Delivered by Hon'ble Chandra Kumar Rai, J.)
1 All. Om Pal Vs. Deputy Director of Consolidation & Ors.
1197

Heard Mr. S K Mishra & Mr. S.K.
Pandey, learned counsel for the petitioner
and Mr. Rahul Kumar Tyagi, Advocate for
contesting respondent No. 2.

1. The instant writ petition has been
filed by the petitioner for quashing the
impugned revisional order dated 9.9.2016
passed by respondent no. 1 in Revision No.
558, under Section 48 of U.P. C.H. Act
(Annexure No-2 to the writ petition).

2. The brief fact of the case are as
follows:

Petitioner is chak holder no. 131
and respondent no.2 is chak holder nos. 12
& 180. Petitioner is original tenure holder of
plot no. 217, area 0.0460 hectare and plot
no. 218, area 0.0460 hectare as well as of
plot no. 560, 543 & 560, total area 0.2693
hectare and the Assistant Consolidation
officer has proposed chak in the year 2013,
comprising of plot No. 214/1, area 0.2152,
plot no. 215, area 0.0050, plot no. 216 area
0·0350, plot no. 217, area 0.0050, total area
0.2602 hectare. CH. 23 part 1 relating to
petitioner has been annexed as Annexure No
- 1 to the writ petition. Petitioner has
annexed the village map as Annexure No-6
to the writ petition to demonstrate that
original plot No-217 & 218 are road side
plot and road was numbered as plot No- 713
& 714 in the village map. Petitioner has also
annexed C.H. form 2-Ka as Annexure R.A.1
to the rejoinder affidavit in which plot No.
713 & 714 are mentioned as sarak, this
clearly demonstrate that plot No. 217 & 218
are road side original plots of petitioner. It is
material to state that respondent No. 2 is not
original tenure holder of plot No - 217 &
218 nor had any share in the same in any
manner.

3. Against the proposal of
Assistant Consolidation Officer, respondent
no. 2 filled objection under section 20 of
U.P. C.H. Act to the effect that he should
be given plot No. 528 in his chak, as well
as purchased chak No. 390 be also given in
his earlier chak, the Consolidation Officer
by order dated 30.4.2014, partly allowed
the objection of respondent No. 2 by which
petitioner was not effected in any manner.
Against the order of Consolidation Officer
dated 30-4-2014, respondent no. 2 filed an
appeal under Section 21 (2) of U.P. C.H.
Act with the changed demand that his chak
in eastern side of sector be abolished and
he should be accommodated in the western
side with his chak No-12, 180 & 390. It
was further prayed that chak of opposite
parties be given either in northern side or in
the eastern side. The appeal was initially
decided
on
29-11-2014
but
on
the
application of respondent no. 2 himself, the
appeal was restored & the same was again
heard and decided by order dated 29.6.2015
by which the claim of respondent no. 2 was
partly accepted, affecting the chak holder
no. 100 but petitioner was not affected in
any manner.

4. Respondent No-2 challenged the
order dated 29.6.2015 through revision
under section- 48 of UPCH Act before
respondent no. 1. The revision was
numbered as Revision No- 558 under
Section 48(1) of the U.P.C.H. Act. In
revision respondent No 2 further increased
his demand to the effect that he should be
given chak of petitioner. The respondent
no. 1 in cursory manner allowed the
revision filed by petitioner only considering
the demand of petitioner & there was no
consideration that what damage will be
caused to petitioner who will be deprived
of his roadside original holding. The
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
revisional order was passed by respondent
no-1 on 9.9.2016. Petitioner challenged the
revisional impugned order dated 9.9.2016
through present writ portion in which
following interim - order was passed on
03.10.2016:

"Notice
on
behalf
of
respondent-1 has been accepted by Chief
Standing Counsel.

Issue notice to respondents-2 to
4.

The counsel for the petitioner
submits that plot nos. 217 and 218 were
original holdings of the petitioner. The
petitioner was allotted chak from the
stage of ACO on these plots, which are
road side lands, but the DDC has
illegally disturbed the chak of the
petitioner and allotted him chak in the
back side.

The
matter
requires
consideration.

Till the next date of listing,
operation of the order dated 9.9.2016
shall remain stayed. "

5. Learned Counsel for the petitioner
contended that petitioner is original tenure
holder of plot No 217 & 218 which are
roadside plot. Respondent No-2 has no
concern with plot Nos. 217 & 218.
Petitioner's road side plot has not been
disturbed till the S.O.C. stage but at the
revisional stage respondent No. 1 without
considering the hardship of the petitioner,
allowed the revision of the petitioner and
roadside plot of the petitioner has been
taken away at the revisional stage, as such,
impugned revisional order is liable to be set
aside.

6. On the other hand, learned Counsel
for respondent no. 2 argued that respondent
no. 2 has rightly allowed the revision in
order to make the holding of both parties
compact as provided under Section 19(1)(e)
of the U.P. C.H. Act. Learned counsel
placed reliance upon the judgment of this
Court reported in 2018 (138) R.D. 558
(Baid Urrahman @ Obedurrahman Vs.
Deputy Director of Consolidation) and
prayed that writ petition filed by petitioner
is liable to be dismissed as equity has been
adjusted between the parties.

7. Considered the submission made
by the learned counsel for the parties.

8. There is no dispute about the fact
that petitioner is original tenure holder of
plot Nos. 217 & 218. On the point whether
plot Nos. 217 & 218 are roadside plot or
not, petitioner has annexed the C.H. form 2
Ka in which plot Nos- 713 & 714 are
mentioned as Sarak and in the village map,
plot nos. 217 & 218 are shown as adjacent
to plot nos. 713 & 714 which demonstrate
that plot nos. 217 & 218 are roadside plot.
On the other hand, counsel for the
respondent no. 2 is arguing that "sarak" is
"Kachhi Sarak" but there is no document
for
that
in
the
counter
affidavit.
Accordingly plot nos. 217 & 218 will be
treated as road side plot. Respondent No. 2
was changing / increasing his demand from
stage to stage. The Consolidation Officer
and S.O.C. have partly satisfied the demand
of the respondent no. 2 but respondent No1 arbitrarily and in cursory manner,
allowed the revision of the petitioner,
without
considering
the
comparative
hardship of the petitioner. Under the
revisional
order,
petitioner
has
been
deprived of his original holding which in
roadside also in the name of making the
chak of respondent No 2 compact which is
not permissible under Section 48 of the
U.P. C.H. Act. Section -19(1)(e) of UP. CH
Act is as follows:
1 All. Om Pal Vs. Deputy Director of Consolidation & Ors.
1199

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

(a)......

(b)......

(c)......

(d)......

(e) every tenure-holder is, as far
as possible, allotted a compact area at
the place where he holds the largest part
of his holding :

Provided that no tenure-holder
may be allotted more chaks than three,
except with the approval in writing of
the Deputy Director of Consolidation:

Provided
further
that
no
consolidation made shall be invalid for
the reason merely that the number of
chaks allotted to a tenure-holder exceeds
three"

9. From reading of Section 19(1)(e)
and considering the case of the parties, it is
clear that consolidation authorities can not
pass arbitrary order in order to make the
chak compact without any rhyme or
reasons. Good and strong reasons in
support of the order will have to be
assigned by the concerned authorities so
that tenure holder may not be deprived
from his original road side plot in the name
of compactness of the chak. It is no doubt
correct
that
during
chak
allotment
proceedings, the allotment cannot be made
in such a manner which may satisfy every
tenure
holder
but
the
consolidation
authorities are required to make adjustment
in a manner that mandate of the Act / Rules
is not flouted.

10. This Court in a case reported in
2005 (99) RD 65 (Mahabeer vs. Deputy
Director of Consolidation, Jaunpur
and Others) has held that comparative
hardship of both parties are to be
considered specially when the chak of the
tenure holder is going to be disturbed. The
Court has also held that revisional court is
the last court of fact as such it is expected
from the revisional court to exercise the
jurisdiction with utmost care and caution.

11. This Court in a case reported in
2006 (100) RD 212, Ram Chandar vs.
Deputy
Director
of
Consolidation,
Varanasi and Others, has held that original
holding situated adjacent to public road
should not be allotted to any one except the
original tenure holder or to be excluded
from consolidation operation.

12. This Court in another recent
decision reported in 2020 (147) R.D. 219,
Ram Badan vs. Deputy Director of
Consolidation, Azamgarh & Others, has
held that roadside land either to be
excluded from consolidation operation or to
be included in the chak of that chak holder
who held it as original.

13. The Consolidation Commissioner,
U.P. by the notification dated 26.5.1981
issued under the U.P. C.H. Act has laid
down principle for exclusion of the land
situated on the main road, national,
provincial or any other main road in all
villages
from
the
chak
allotment
proceedings.

14. The case law cited by learned
counsel for the respondent no. 2 is not
applicable in the present facts of the case
where petitioner has been deprived from
his original roadside plot at the revisional
stage.
1200 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Considering the provisions of the
act and law laid down by this court as well
as the reasons mentioned above, the
impugned revisional order dated 9.9.2016
passed by respondent no. 1 in Revision No.
558 of U.P.C.H. Act cannot be sustained
and is liable to be set aside. There is no
need to remand the matter back for fresh
consideration as by the order of Settlement
Officer Consolidation, respondent no. 2 -
Abdul Gaffar and chak holder no. 100 -
Mohd. Ikbal were effected and chak holder
no. 100 has not challenged the appellate
order in revision, as such order dated
20.6.2015 is liable to be maintained so that
petitioner's original roadside plot may not
be effected.

16. The writ petition succeeds and is
allowed. The revisional order dated 9.9.2016
passed by respondent No-1 in Revision No.
558 is quashed and appellate order dated
29.6.2015 passed in Appeal No.442 is
maintained. No orders as to costs.
----------
(2022)01ILR A1200
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.01.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ B No. 863 of 2014
with
Writ B No. 248 of 2015

Gokaran Nath & Ors. ...Petitioners
Versus
Dy. Director of Consolidation Bahraich &
Ors. ...Respondents

Counsel for the Petitioners:
R.N. Gupta, B.L. Mishra, Bajrangi Lal
Mishra, Sunil Kumar Singh, Vijai Bahadur
Verma
Counsel for the Respondents:
C.S.C., Sanjay Tripathi, Virendra Singh

A. Civil Law - U.P. Consolidation of Holding
Rules, 1954 Rule 25-A - Disposal of cases
relating to claim of land - In deciding
disputes on the basis of conciliation in
terms of section 9-A(1), the Assistant
Consolidation Officer or the Consolidation
Officer before whom the compromise is
placed, should verify from the Village
Level Consolidation Committee about the
compromise filed by the parties and also
avoid proceeding against any party to the
compromise ex parte (Para 59)

B. Civil Law - U.P. Consolidation of
Holdings Act, 1954 - Constitution of India,
Article
226
of
India
-
Scope
of
Interference in the orders passed by the
Consolidation Authorities - writ Court may
interfere in the orders passed by the
Consolidation Authorities if such orders
suffer from perversity, if they fail to
appreciate correctly the facts placed on
record before them or if orders are
patently arbitrary or if they do not
interpret the law correctly or apply the
law incorrectly (Para 59)

Petitioners specifically pleaded
before the
Appellate Court and the Revisional Court that
their names were not mentioned in the
compromise
that
was
filed
before
the
Consolidation Officer, their signatures were not
appended to the so called compromise -
Assistant Consolidation Officer/Consolidation did
not verify from the Village Level Consolidation
Committee about the compromise filed by the
parties - judgments cited by the Appellants were
mentioned but not considered by the Settlement
Officer (Consolidation) in his order - Revisional
Court being the last Court of facts was duty
bound to peruse the records and verify the
compromise - It only observed that notice had
been duly served of the compromise by the
Consolidation Officer and therefore it could not
be said that his order was passed in violation of
principles of natural justice - Deputy Director
Consolidation without adverting to the burden of
proof being discharged first by the claimants
and without any documentary evidence on