# Raghuraj alias Ruggan & Ors v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1809
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-19
- **Case number:** Writ C- No. 35741 of 2018
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raghuraj-alias-ruggan-ors-v-state-of-u-p-ors-44677
- **Pages:** 6

## Headnote

A. U.P. Consolidation of Holding Act,
1953 - Section 28, 52-A -While deciding
Application u/s 28-Consolidator's report
to be read and matched with the UP-CH
Forms 41 and 45. If no ingress and
egress for a plot-provisions of section
52-A of the Act to apply.

Writ Petition allowed (E-9)

## Text

2 All. Raghuraj alias Ruggan & Ors. Vs State of U.P. & Ors.
1809

29.1. Judicial orders of civil
court are not amenable to writ jurisdiction
under Article 226 of the Constitution.

29.2. Jurisdiction under Article
227 is distinct from jurisdiction from
jurisdiction under Article 226."

21. Counsel for the petitioners has
not
been
able
to
dispute
the
aforementioned legal position and has
also not been able to point out any
material error or illegality in the order
passed by the court below so as to warrant
interference.

22. It has also been pointed out that
the
sole
respondent
has
died
on
07.01.2018 and no steps have been taken
by the petitioners to cause the legal
representatives
of
the
deceased
respondent to be made a party in the
proceedings.

23. The petition thus lacks merit and
is accordingly dismissed.
----------

(2019)10ILR A 1809

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2019

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Writ C- No. 35741 of 2018

Raghuraj alias Ruggan & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ajai Shankar Pathak, Sri Prateek Tyagi.

Counsel for the Respondents:
C.S.C., Sri Mahesh Narain Singh, Sri
Pankaj Kumar Srivastava, Sri Uday Pratap
Singh, Sri Kundan Rai.

A. U.P. Consolidation of Holding Act,
1953 - Section 28, 52-A -While deciding
Application u/s 28-Consolidator's report
to be read and matched with the UP-CH
Forms 41 and 45. If no ingress and
egress for a plot-provisions of section
52-A of the Act to apply.

Writ Petition allowed (E-9)

(Delivered by Hon'ble Siddhartha Varma, J.)

1. This writ petition has been filed
against the order dated 19.7.2018 passed
by the Additional District Magistrate
(Administration), Meerut in proceeding
under section 28 of the U.P. Land
Revenue Act, 1901 and against the order
dated 4.10.2018 passed by the Additional
Commissioner
(Judicial)-4th,
Meerut
Region, Meerut.

2. The respondent no.5 filed an
application under section 28 of the U.P.
Land Revenue Act before the District
Magistrate, Meerut and prayed that in the
map, the land which had been shown as a
chak marg in between his plot nos.502
and 564 and which was running from
North to South be removed from the final
maps. The petitioners were arrayed as
respondents in the case. They filed their
objection to the application filed by the
respondent no.5 on 26.3.2015 and a report
was called for by the Additional District
Magistrate from the Consolidator who
submitted his report on 13.3.2015. This
report was also objected to by the
petitioners.
However,
when
the
respondent no.3 on 27.3.2015 accepted
the report dated 13.3.2015, the petitioners
preferred a Revision which was allowed
1810 INDIAN LAW REPORTS ALLAHABAD SERIES
on 8.7.2015 and the matter was remanded
back to the Additional District Magistrate.
Thereafter,
the
respondent
no.3-the
Additional District Magistrate once again
passed
the
impugned
order
dated
19.7.2018 which was affirmed by the
Revisional Court on 20.7.2018. Hence,
the instant writ petition.

3.

Learned
counsel
for
the
petitioners has contended that when the
respondent no.5 had prayed for the
removal of the chak marg which had been
shown in the map then he had infact tried
to get the chak marg running over plot
no.501 removed. He has stated that the
road which ran over plot no.576 was
connected by the petitioners' plot on plot
no.523 by the chak marg which ran over
plot
no.501.
Learned
counsel
has
submitted
that
the
consolidation
proceedings were completed in the year
1961 and since then the petitioners had
been using the chak road over plot No.501
to reach their plot no.523. Learned
counsel for the petitioners has submitted
that
when
the
application
of
the
respondent no.5 was taken up and the
Consolidator had given his report on
13.3.2015, in his report, the Consolidator
had categorically stated that there was one
plot no.501 which though had an area of
0.708 hectares was on the spot showing to
be having an area of 0.1056 hectares and,
therefore, the Consolidator had by his
report suggested that the excess land from
the plot no.501 be removed and the plot
nos.502 and 564 be given the excess land.
Here, learned counsel for the petitioners,
therefore, submitted that the plot no.501
and the road over it even as per the report
of the Consolidator definitely were in
existence.
Learned
counsel
further
submitted that the Consolidator in his
cross-examination had stated that he had
not made any spot inspection and that the
Consolidator, even though had found that
the plot no.501 had some additional land,
he definitely did not say that the plot
no.501 had to be totally removed. In
paragraphs Nos.14, 25, 32 and 33 of the
writ petition, which will be reproduced in
this judgment, it has also been stated by
the petitioners that they had no other chak
marg other than the one which was being
sought to be removed from plot no.501, to
approach their plot no.523. Paragraphs 14,
25, 32 and 33 of the writ petition are
being reproduced hereasunder :-

"14. That the Consolidator in its
cross-examination
in
chief
has
categorically stated that there is no way to
reach the petitiones' plot no.523 except to
the Chak-Road No.501 which is situated
in the eastern side of Plot No.502 and
western side of plot n o.564 of respondent
no.5. He further stated that during the
consolidation proceedings it is necessary
to provide a Chak-Road for all chakholders to reach their plots in Khasra
No.523 except to the disputed Chak-Road
there is no other Chak-Road.

..................

25. That the petitioners are
owner of Plot No.523 and except the
Chak-Road No.501 there is no other way
or Chak-Road to reach them to their plot.

..................

32. That the respondent nos.2
and 3 while passing the impugned orders
did not consider the fact that the
petitioners are using Chak-Road No.501
since the last consolidation proceedings to
reach
their
Plot
No.523
and
the
respondent no.5 never objected them.

33. That it is further important
to state here that a bricks-made road is
also constructed over the Chak-Road
No.501 which is situated in between the
2 All. Raghuraj alias Ruggan & Ors. Vs State of U.P. & Ors.
1811
Plot No.s502 and 564 which ends to the
Plot No.523 of the petitioners and a Pakki
Nali is also constructed on both sides of
the said Chak Road. Not only this, a
Puliya is also constructed on the said
Chak-Road by the Gram Sabha fund."

4.

Learned
counsel
for
the
petitioners has stated that the respondents
in paragraphs 16, 23, 27 and 28 have
replied to the contents of paragraphs 14,
25, 32 and 33 of the writ petition but have
not denied the fact that the chak marg
which existed on plot no.501 alone was
the road which connected the petitioners'
plot no.523 with the rasta on plot no.576.
Paragraphs 16, 23, 27 and 28 of the
counter affidavit are being reproduced
hereasunder :-

"16.
That
the
contents
of
paragraph no.14 and 15 of the writ
petition are not admitted and denied. The
petitioner is trying to carve out a Chak
Road in the absence of there is any Chak
Road mentioned in revenue record. There
is no any Chak Road in the revenue
record and true copy of the revenue
record is being filed herewith and marked
as Annexure No.CA-1 to this counter
affidavit.

.................

23.
That
the
contents
of
paragraph no.25 of the writ petition are
not
admitted
and
denied
and
the
petitioners are easily going to their field.

..................

27. That in reply to the contents
of paragraph no.32 of the writ petition it
is submitted that anyhow or the other
petitioners are trying to grab the land of
the petitioners.

28.
That
the
contents
of
paragraph no.33 of the writ petition are
not admitted and denied. The petitioners
are trying to create a Road unnecessary
which does not find the place in the
revenue record."

5.

Learned
counsel
for
the
petitioners submitted that even though in
the objection they had not taken the plea
that the rasta on plot no.501 was the plot
over which the chak marg was running
and which connected the rasta in plot
no.576 and the plot no.523 but in fact they
had always meant that there was a chak
marg connecting the rasta and plot no.576
and their own plot at plot no.523.

6.

Learned
counsel
for
the
petitioners has, in the Supplementary
Rejoinder Affidavit filed on 5.4.2019,
brought on record a Supplementary
Affidavit which they had filed before the
Revisional Court on 20.8.2018 that in fact
the chak marg was running over as plot
no.501 and, therefore, learned counsel for
the
petitioners
submitted
that
the
petitioners always meant that the chak
marg on plot no.501 be not removed.
Learned counsel also relied upon 2017
(134) RD 758 : Ram Kumar vs.
Additional
Commissioner,
Meerut
Mandal & Ors. and 2017 (137) RD 163
:
Ashfaq
Ahmad
vs.
Additional
Commissioner (Administration) & Ors.
and has stated that not only had the
Consolidator's report to be read in its right
perspective while deciding the application
under section 28 but his report had also to
be matched with the UP CH Forms 41 and
45. Learned counsel further states that in
case this Court finds that no rasta was
there which would provide for the ingress
and egress from plot no.523, then this
Court may direct the Collector to apply
the provisions of section 52-A of the U.P.
Consolidation of Holdings Act, 1953 to
provide for a chak road. Since learned
1812 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel referred to section 52-A of the
U.P. Consolidation of Holdings Act, the
same is being reproduced here as under :-

"52-A. Special provisions for
Chak Roads or Chak Guls

.-- (1) In the case of a unit in
relation to which a notification under subsection (1) of Section 52 has been issued
before the commencement of the Uttar
Pradesh
Consolidation
of
Holdings
(Amendment) Act, 1970, the Collector may,
if he is of opinion that there exists no
provisions or inadequate provisions of Chak
Roads or Chak Guls in the unit and shall, if a
representation in that behalf be not less than
ten per cent of the total number of tenureholders is made to him within six months of
the said commencement, proceed to take
action under sub-section (2), anything to the
contrary
contained
in
Section
52
notwithstanding.

(2) The Collector shall cause a
notice of the proposal to take action under
this section and also of the representation,
if any, received under sub-section (1) to
be given in the unit by beat of drum and
in such other manner, if any, as he thinks
fit, and direct any Consolidation Officer
to inspect the locality and take reasonable
steps to ascertain the wishes of the tenureholders, or, as the case may be, of such of
them
as
have
not
joined
in
the
representation, and to make such other
inquiry into the matter as he thinks fit.

(3) Such Consolidation Officer
shall make a report to the Collector on the
advisability or otherwise of drawing up a
plan making provision or, as the case may
be, more adequate provision for Chak
Roads or Chak Guls in the unit, and the
Collector
on
being
satisfied
after
considering such report that it is necessary
or expedient so to do, shall cause a draft
plan to be prepared.

(4) The Assistant Consolidation
Officer shall thereupon, after ascertaining
informally the wishes of as many tenureholders of the unit as he considers
practicable, prepare a draft plan in the
prescribed form proposing such provision
or additional provision of Chak Roads or
Chak Guls as may be necessary. In
preparing the draft plan the Assistant
Consolidation Officer shall have regard to
the following principles, namely:--

(a) That as far as practicable,
provision of Chak Roads and Chak Guls
should be made primarily by utilising land
vested in the Gaon Sabha and secondarily
out of land held by those tenure-holders
whose Chaks are connected with the
proposed Chak Roads or Chak Guls, and
in the last resort, out of any other land;

(b)
The
re-arrangement
of
Chaks should be made only to the extent
it is really necessary for making provision
of Chak Roads and Chak Guls with the
minimum possible dislocation in the
Consolidation Scheme already confirmed.

.........................

........................"

7. earned counsel for the
respondents, however, submitted that the
map had been corrected on the basis of
the report of the Consolidator and also on
the
various
revenue
records
which
included Form-41 and Form-45.

8. Learned counsel appearing for the
respondent no.5, however, in reply stated
that the petitioners, only to grab some
land on the spot, had dishonestly got
carved out a chak road which ran between
plot nos.502 and 564. Learned counsel
further submitted that the petitioners had
for the first time here in the writ petition
stated that plot no.501 was the plot on
which the chak marg ran. Learned
2 All. Raghuraj alias Ruggan & Ors. Vs State of U.P. & Ors.
1813
counsel, therefore, submitted that there
was nothing wrong in the removal of the
chak marg which had wrongly and
illegally been carved out from plot
nos.502
and
564.
Learned
counsel
vehemently relied upon the report of the
Consolidator and submitted that the
impugned orders were not to be interfered
with.

9. Having heard learned counsel for
the petitioners, learned Standing Counsel,
learned counsel for the respondent no.5
and the learned counsel for the Gaon
Sabha, the Court is of the view that when
the Consolidator had found that there was
a plot being plot no.501 and only some
area of it had been increased then the plot
no.501 had to be placed somewhere in the
map. The Court also finds that averment
of the petitioners that there was a road
which connected the road situate on plot
no.576 with their plot no.523 has not been
categorically denied by the respondent
no.5 in his counter affidavit.

10. The scheme of consolidation
definitely lays down that the land which
was for the public purposes had to be
vested in the Gaon Sabha. If plot no.501
was connecting the road running on plot
no.576 and the petitioners' plot no.523,
then that road had also to exist on the
spot. The Consolidator had found that
there was a rasta over plot no.501.
However, it has also been found that
somehow that area of that rasta had
increased and, therefore, it had suggested
for a proper reduction of the area. Basing
on this report, two orders have been
passed. A perusal of the two orders shows
that there was no definite finding as to
whether plot no.501 connected the rasta
on plot no.576 with plot no.523 or not.
While passing the two orders, the
Additional District Magistrate and the
Commissioner have not looked into the
final consolidation map and have relied,
for their findings, only on the report of the
Consolidator alone. The authority which
passes the order can always depend upon
certain reports but it cannot pass orders
solely on the reports. The Additional
District Magistrate when was confronted
with the objection of the petitioners that
there was only one rasta which connected
plot no.523 with the rasta running on plot
no.576, then even a local inspection was
advisable. A definite finding ought to
have been arrived at by the Additional
District Magistrate and also by the
Revisional Court, independent of the
report of the Consolidator as to whether
the map required a correction or not. This
Court also finds from the perusal of
paragraph nos.14, 25, 32 and 33 of the
writ petitioner which have not been
categorically
denied
in
the
counter
affidavit that the petitioners were having a
rasta which connected their plot no.523
with the rasta in plot no.576. An
impression is also created that there was
no other rasta which would have given an
outlet for a person cultivating plot no.523.

11. Under such circumstances, the
order dated 19.7.2018 passed by the
Additional
District
Magistrate
(Administration), Meerut and the order
dated 4.10.2018 passed by the Additional
Commissioner (Judicial), 4th, Meerut
Region,
Meerut
are
quashed.
The
Collector, Meerut shall once again decide
the application filed by respondent no.5
afresh within a period of one month from
the date of presentation of a certified copy
of this order and after looking into the
report of the Consolidator and after
matching the report with Form-41 and
Form-45 give a definite conclusion as to
1814 INDIAN LAW REPORTS ALLAHABAD SERIES
whether a road existed in between the
petitioners' plot no.523 and the rasta in
plot no.576.

12. In the event the Collector finds
that there is no rasta on the map and if he
finds that that there is no ingress and
egress for the petitioners from plot no.523
then he shall apply the provisions of
section 52-A of the U.P. Consolidation of
Holdings Act, 1953 and carve out a chak
road.

13. With these observations, the writ
petition is finally allowed.
----------

(2019)10ILR A 1814

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.09.2019

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
THE HON'BLE PANKAJ BHATIA, J.

Writ C- No. 107 of 2019

Anurag Srivastava & Ors. ...Petitioners
Versus
National Highway Authority of India
Through Its Chairman & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Shyam Narain Rai, Sri Prashant
Mishra, Sri Ravi Kant.

Counsel for the Respondents:
A.S.G.I., C.S.C., Sri Neeraj Dube.

A. National Highway Act, 1956 - Section
3G (3) - Acquisition - Non-compliance of
procedure - Gazette notification shows
that notice is issued under section 3D
not under section 3G - Averment in
pleading that it is by mistake instead of
section
3G,
section
3D
has
been
published, is not acceptable in the
absence of corrigendum - Impugned
award
held
to
be
passed
without
following
procedure
prescribed
u/s
3G(3) of the Act. (Para 20, 23 & 26)

B.
National
Highway
Act,
1956
-
Procedure of acquisition - Effect of
violation
-
Under
scheme
of
Act,
notification has to be published in three
stages - First u/s 3A(2), second u/s
3D(2) and third u/s 3G(3) - Initial two
notice issued, but no third stage notice
has been brought on record - Prescribed
procedure not followed. (Para 21, 22 & 26)

Held :-The scheme of the amendment
brought by the Act 16 of 1997, whereby
Sections 3A to 3J have been inserted in the
Act, 1956, clearly shows that the notification
has to be published at three stages: first,
under Section 3A(2) declaring intention to
acquire the land and inviting objections;
secondly, under Section 3D(2) for declaration
to the effect that the land should be acquired
and on such declaration the land vests
absolutely in the Central Government; and
thirdly, under Section 3G(3) a public notice is
required to be published in two local
newspapers inviting the claims from all the
persons interested in the land.

Writ Petition allowed (E-1)

Case relied on :-
Sharda Yadav Vs U.O.I. & ors. (Writ-C No.
30046 of 2014, decided on 18/07/2014).
Case referred :-
Whirlpool Corp. Vs Registrar of Trade Marks
Mumbai & ors. (1998) 8 SCC 1.
(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)

1. The petitioners have instituted
this writ proceedings aggrieved by an
award dated 19th September, 2018 passed