# Srivastava and another v. State of

- **Citation:** (2006) 3 ILRA 1097
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-21
- **Case number:** Civil Misc. Writ Petition No. 56470 of 2005
- **Bench:** S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/srivastava-and-another-v-state-of-40741
- **Pages:** 7

## Headnote

Consolidation of Holdings Act Section48-Power
of
Revisional
Court-chak
allotment
matter-whether
suo
moto
power can be exercised by D.D.C.? Held-
'No'.

Held: Para 11 and 16

In view of the aforesaid this Court is of
the view that exercise of the suo moto
powers
by
the
Deputy
Director
of
Consolidation cannot be said to be just
and proper, but at the same time if
during the course of argument in the
pending revision before the Deputy
Director of Consolidation on the facts if
he feels that some more chak holders are
to be heard for doing complete justice
between the parties, he may always
move accordingly.
1098 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
For the reasons recorded above, this writ
petition succeeds and is allowed. The
impugned orders of the Deputy Director
of Consolidation dated 18.7.2005 and
1.6.2005
(annexure
no.
2
and
1
respectively) are hereby quashed and
now the revisions will be heard and
decided by the revisional court keeping
in mind the observation as made in this
judgment.
Case law discussed:
AIR 1975 Alld.-126
1978 (4) ALR-194
AIR 1996 SC-2881

## Text

3 All] Shailendra and others V. The Chief Controlling Revenue Authority and others
1097
dispute, there were developed residential
colonies in which the residential houses
were built and even in the land in dispute
subsequently, plotting was done and the
residential houses have been constructed
and, therefore, the valuation of the land in
dispute has rightly been made treating as
abadi land and not agriculture land.

4. I do not find any substance in the
argument of learned counsel for the
petitioner so far as valuation of land in
dispute is concerned. It is true that the
nature of land on the date of sale has to be
seen. Both the authorities namely, Deputy
Commissioner
and
Divisional
Commissioner on the basis of revenue
record, recorded the finding that in the
khasra for the Fasli year 1406 to 1407
land in dispute was shown as abadi land
and not as banzar or agriculture land.
Thus, the valuation of land in dispute
treating it as abadi land can not be said to
be illegal or erroneous.

5. In the case of Girijesh Kumar
Srivastava and another Vs. State of
U.P. and others (Supra), the Full Bench
of this Court held that while exercising
powers under sub-section (4) of Section
47-A of the Act, the Collector can
determine the market value of the
property and the duty payable on the
instrument
as
a
result
of
such
determination but he has no power to
impose penalty.

6. Respectfully following the Full
Bench decision, the penalty levied in the
present case is liable to be set aside.

7. In the result, writ petition is
allowed in part. The order of the Deputy
Commissioner and Commissioner so far
as it relates to the valuation and
determination of the land in dispute and
the demand of stamp duty is upheld.
However,
the
penalty
levied
at
Rs.10,000/- is deleted.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2006

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

Civil Misc. Writ Petition No. 56470 of 2005

Sudarshan Yadav

...Petitioner
Versus
The Deputy Director of Consolidation,
Ballia and others
 ...Respondents

Counsel for the Petitioner:
Sri J.P. Singh
Sri V.C. Mishra

Counsel for the Respondents:
Sri D.N. Shukla
Sri L.N. Shukla
Sri Rahul Sahai
S.C.

Consolidation of Holdings Act Section48-Power
of
Revisional
Court-chak
allotment
matter-whether
suo
moto
power can be exercised by D.D.C.? Held-
'No'.

Held: Para 11 and 16

In view of the aforesaid this Court is of
the view that exercise of the suo moto
powers
by
the
Deputy
Director
of
Consolidation cannot be said to be just
and proper, but at the same time if
during the course of argument in the
pending revision before the Deputy
Director of Consolidation on the facts if
he feels that some more chak holders are
to be heard for doing complete justice
between the parties, he may always
move accordingly.
1098 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
For the reasons recorded above, this writ
petition succeeds and is allowed. The
impugned orders of the Deputy Director
of Consolidation dated 18.7.2005 and
1.6.2005
(annexure
no.
2
and
1
respectively) are hereby quashed and
now the revisions will be heard and
decided by the revisional court keeping
in mind the observation as made in this
judgment.
Case law discussed:
AIR 1975 Alld.-126
1978 (4) ALR-194
AIR 1996 SC-2881

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

1. Heard Sri V.C. Mishra, learned
Senior Advocate assisted by Sri J.P.
Singh, learned Advocate in support of the
writ petition and Sri D.N. Shukla, learned
Advocate assisted by Sri L.N. Shukla,
learned Advocate in opposition thereof.

2. By means of this writ petition,
challenge is to the order of the Deputy
Director of Consolidation dated 18.7.2005
and 1.6.2005 (annexure no.2 and 1
respectively).

3. There is no dispute about certain
facts and, therefore, they may be
summarised in brief for the purpose of
disposal of this writ petition.

4. In the allotment of chak
proceedings, against an order of the
Settlement Officer Consolidation dated
16.12.2004 respondent no. 2 to 5 filed a
revision before the Deputy Director of
Consolidation which was numbered as
revision no.697 of 2005. In this revision,
the revisionists impleaded 59 private
respondents. A copy of the ground of
revision has been annexed as annexure
no.6 to the writ petition. During the
pendencey of the revision respondent no.
2 came to this Court by filing writ petition
being writ petition no.32528 of 2005 with
the prayer for staying delivery of
possession
upon
which
this
Court
disposed of the writ petition by its order
dated 16.5.2005 by making observation
that it is for the petitioner to approach the
Deputy Director of Consolidation for
getting the needful done and it is only
thereafter they may come to this Court. It
is at this stage it appears that a complaint
was filed by respondent no.2 and it is also
claimed that several other persons/chak
holders/villagers filed complaint before
the Deputy Director of Consolidation. On
those complaints, the Deputy Director of
Consolidation called the report from the
subordinate authorities and ultimately
report of the Assistant Settlement Officer
Consolidation came on 20.11.2004. The
Deputy Director of Consolidation after
examining the reports submitted by the
lower consolidation authorities passed an
order on 1.6.2005 by which he said that
he is exercising his suo moto powers in
the matter. It is thereafter he summoned
the record and directed for issuance of
notice to large number of chak holders
who may be said to have been aggrieved
in the light of those reports. Petitioner and
large number of tenure holders of the
village, on coming to know about the
order
of
the
Deputy
Director
of
Consolidation, filed an application on
1.7.2005 to recall the order dated
1.6.2005. That application was rejected by
the Deputy Director of Consolidation by
order dated 18.7.2005 and thus the
petitioner is before this Court challenging
both the orders of the Deputy Director of
Consolidation
dated
18.7.2005
and
1.6.2005.

5. Submission of the learned counsel
for the petitioner is that admittedly the
3 All] Sudarshan Yadav V. The Dy. Director of Consolidation, Ballia and others
1099
revision filed by the respondent no. 2 to 5
i.e. revision no. 697 of 2005 was pending
before
the
Deputy
Director
of
Consolidation, which related to their
grievance in respect of the improper
adjustment of their chaks at the stage of
the appellate authority and therefore it
was open for the Deputy Director of
Consolidation to give relief to the
revisionist if they are so entitled in law
but in no case the exercise of the suo
moto powers on the alleged application of
certain persons even who did not
approach either the Consolidation Officer
or the Settlement Officer Consolidation
any they have not come before the Deputy
Director of Consolidation by filing
revision, can be permitted. Submission is
that the Deputy Director of Consolidation
is possessed with wide powers and in fact
he is possessed with the same powers as
the Consolidation Officer is possessed
and he can make any kind of adjustment
for doing the justice and balancing the
equity between the parties. The Deputy
Director of Consolidation can always
make spot inspection to know spot
situation for making just adjustment
which may be in the ends of justice.
Submission is that if Deputy Director of
Consolidation during the course of
argument in the revision finds that some
more chak holders are to be heard for
justifiable reasons then he can always
direct for impleadment of certain more
chak holders so as to do the complete
justice
and,
therefore,
in
these
circumstances so far the case in hand is
concerned as the revision filed by
respondent no. 2 to 5 besides certain other
revisions were pending before the Deputy
Director of Consolidation, exercise of suo
moto powers for registering the matter
cannot be said to be justified and thus
passing of the impugned order dated
1.6.2005 for registering the matter and
then summoning large number of chak
holders simply on the report of the lower
consolidation authorities cannot be said to
be valid in law. Submission is that
exercise by the Deputy Director of
Consolidation
besides
being
illegal,
unwarranted, can be safely termed to be in
excess of his jurisdiction and thus both
orders are liable to be quashed.

6. In support of the aforesaid
submission that during the pendency of
the revision exercise of the suo moto
powers and alteration in the chak of
several chak holders who have not
appealed and came before the Deputy
Director of Consolidation cannot be said
to be justified, reliance has been placed on
three decisions of this Court reported in
AIR 1975 Allahabad 126 (Ramakant
Singh
Vs.
Deputy
Direction
of
Consolidation, U.P. and others), 1978
RD 167 (Ram Sunder Singh and others
Vs.
Ram
Mohan
Singh,
Deputy
Director of Consolidation and others)
and 1978 (4) ALR 194 (Mohd. Vakil Vs.
Deputy Director of Consolidation and
others).

7. In response to the aforesaid, Sri
Shukla, learned Advocate vehemently
submits that the Deputy Director of
Consolidation admittedly is possessed
with wide powers and therefore if by
placing reliance on the reports given by
the subordinate authorities, with an
intention to do the justice to large number
of chak holders, if directed that matter to
be registered under his suo moto powers,
then no exception can be taken to it and in
any view of the matter no interference is
required in the writ jurisdiction as this
Court
exercises
equity
powers.
Submission is that in the complaints
1100 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
various kind of illegalities were pointed
out which can be found out from the
record as has been annexed with the
counter affidavit and therefore, in that
light
if
the
Deputy
Director
of
Consolidation even during the pendency
of the revision before him has exercised
suo moto powers, then nothing wrong can
be complained. Submission is that it is not
a case where this Court is to interfere in
the impugned orders. To support the wide
powers of the Deputy Director of
Consolidation Sri Shukla referred to the
provisions of Section 48 of the U.P.C.H.
Act and decision of the Apex Court in the
case of Preetam Singh (dead) by L.Rs.
and others Vs. Assistant Director of
Consolidation and others reported in
AIR 1996 SC 2881.

8. In view of the aforesaid argument
as noted above, this Court has given
serious thoughts over the matter and thus
the
question
which
arises
for
consideration for this Court is that
whether during the pendency of the
revision filed by the respondent no. 2 to 5
stating grievances in respect to the
improper adjustment in their chaks, the
Deputy Director of Consolidation can be
permitted to exercise suo moto powers for
correction of the alleged illegalities in the
allotment of chak proceedings and like
irregularities.

9. There cannot be any quarrel to the
proposition, as submitted by Sri Shukla
that the Deputy Director of Consolidation
is possessed with very wide powers, so far
the
allotment of chak matters are
concerned. The authority can always go to
the spot, can always make all kind of
changes which the law permits for making
adjustment between the parties and at the
same time if he finds that if some more
parties are to be heard it is always open
for him to direct for impleadment of those
parties/chak holders and after giving
adequate opportunity of hearing to all the
concerned he can pass appropriate orders.
Thus there being no doubt about the
powers of the Deputy Director of
Consolidation now this Court is to decide
that whether once the Deputy Director of
Consolidation is seized with a revision in
which all kind of grievance in respect to
the adjustment of chak can be rectified
whether he can exercise suo moto powers
for
rectification
of
irregularities
in
allotment of chak proceeding.

10. So far the case in hand is
concerned, as noticed above, admittedly
there were several revisions before the
Deputy
Director
of
Consolidation
including that of respondent no. 2 to 5. A
perusal of the complaint as filed as placed
before this Court with counter affidavit
makes it clear that some irregularity in the
allotment of chaks was complained before
the Deputy Director of Consolidation. As
observed above, during the course of
argument in revision itself the Deputy
Director of Consolidation was to summon
the record and could direct any other chak
holder to be impleaded as party if for
interest of justice his presence is needed.
Section 19 of the U.P.C.H. Act gives
various guidelines for making adjustment
between the chak holders. Section 20 of
the Act permits a chak holder to file
objection against the proposal made by
the Assistant Consolidation Officer. The
chaks are carved out at initial stage by the
Assistant Consolidation Officer and that
is always subject matter of change on
filing
the
objections
before
the
Consolidation Officer and then on filing
appeal before the appellate authority and
revision before the revisional authority
3 All] Sudarshan Yadav V. The Dy. Director of Consolidation, Ballia and others
1101
and if further needed on approach to this
Court or he may approach to further
higher forum. In respect to grievance of
every individual/chak holder for redressal
remedy is provided under the Act. At the
same time if there are various kind of
drastic irregularities then that is always at
the very initial stage of the start of chak
carvation proceedings upon which at that
very stage if large number of chak holders
comes with a complaint, the Deputy
Director of Consolidation can get the
matter enquired. But here is the case
where after carvation of chak at Assistant
Consolidation Officer stage, objections
were decided by Consolidation Officer,
appeals
were
decided
by
appellate
authority and revisions were pending and,
therefore, this Court is of the view that on
complaint by the revisionist who already
filed revision before the revisional court
the exercise of the suo moto powers may
not be said to be justified and proper for
the simple reason that both course that is
exercise of revisional power on a revision
filed under the statutory provision of
Section 48 of the Act and at the same time
exercise of the suo moto powers for the
same purpose cannot be permitted to go
on simultaneously. A perusal of the
judgment of the Deputy Director of
Consolidation indicates that he has
noticed that in the report submitted by the
lower consolidation authority there were
certain chak holders who were not given
chak on their original plots and in all there
were fifteen chak holders in whose chak
there has been variance of more than
25%. This happens some times in these
proceedings. In the allotment proceedings
so far the principle of allotment of
original plots is concerned, it is not
necessary that each and every original
plot is to be given in chak of that chak
holder. Requirement is that chak has to be
given on largest part of his original
holding and that too as far as possible
therefore, plot of one has to go to other in
most of the case. If a party feels
something wrong he has a remedy to file
appeal, revision etc. Take a case that the
chak holder do not feel aggrieved with
change then nothing is to be done. It is not
for the Deputy Director of Consolidation
or any of the authority to act suo moto by
holding the brief of a party who has not
approached. Here same is the situation.
Even if in certain chaks there is variation
of more than 25% in the valuation/area
but no body is complaining by filing
appeal or revision. If a remedy is provided
to a party in law he has to avail it and if
he submits to it then others are not to
worry. Thus for the chak holders who
have not come forward by taking recourse
to recourse so provided in law then the
Deputy Director of Consolidation or any
court is not to hold their brief.

11. In view of the aforesaid this
Court is of the view that exercise of the
suo moto powers by the Deputy Director
of Consolidation cannot be said to be just
and proper, but at the same time if during
the course of argument in the pending
revision before the Deputy Director of
Consolidation on the facts if he feels that
some more chak holders are to be heard
for doing complete justice between the
parties, he may always move accordingly.

12. At this stage on taking note of
the judgments of this Court noticed
above, this Court is of the view that
analysis as made above finds its support.
Observation made in the case of Mohd.
Vakil (Supra) can be quoted at this place:

"........The sole contention advanced
by the learned counsel for the petitioner is
that opp. party No. 4 not having filed any
1102 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
revision he would be presumed to have
acquiesced to the orders passed by the
Consolidation Officer and the Asstt.
Settlement
Officer
(Consolidation)
rejecting
his
claim.
The
question,
therefore, posed for consideration by the
learned counsel for the petitioner is
whether it is open to the Deputy Director
of Consolidation in exercise of power
under Sec. 48 of the U.P. Consolidation of
Holdings Act (hereinafter to be referred to
as the Act) to exercise suo motu power
even though the party has not preferred a
revision and proceed to consider his case.

....It is well settled that a person who
does not challenge the order would be
deemed to have acquiesced to the order
and in the circumstances so far as his
rights are concerned that Chapter stands
closed
and
cannot
be
reopened
howsoever, wide powers may be provided
by a particular provision of the Act."

13. In the similar manner Full Bench
of this Court in the case of Rama Kant
Singh
(Supra)
made
the
following
observation:

"After the record has been called for
by the Deputy Director of Consolidation
under Section 48 he should examine the
record to decide whether it was a fit case
for exercise of the revisional jurisdiction
suo motu. Such opinion shall have to be
formed even where the application in
revision moved by a party is defective
having been made beyond the prescribed
period of limitation or all the necessary
parties have not been impleaded.

If
the
Deputy
Director
of
Consolidation finds that the case requires
further hearing, he shall give notice to all
the necessary parties irrespective of
whether they were or were not impleaded
in the application and after giving them
reasonable opportunity of hearing, pass
such orders as he thinks fit. Where the
application in revision is not defective and
is maintainable, the exercise of revisional
jurisdiction shall be at the instance of the
parties and not suo motu."

14. So far the judgment on which
the reliance has been placed by the
learned counsel for the respondent given
by the Apex Court in the case of Preetam
Singh (Supra) suffice it to say that the
decision of the Apex Court is not at all on
the point. The decision of the Apex Court
is on the point that even if the order of
remand passed by the appellate authority
has
not
been
challenged,
while
considering the revision, the merits or
otherwise of the remand order can be
examined.

15. To conclude, it can be safely
held
that
the
Deputy
Director
of
Consolidation in passing the impugned
order dated 1.6.2005 for registering the
matter
in
suo
moto
exercise
has
committed an error and at the same time
in rejecting the application filed by the
petitioner and other chak holders by order
dated 18.7.2005 has also committed an
error
and
thus
both
orders
needs
interference of this Court.

16. For the reasons recorded above,
this writ petition succeeds and is allowed.
The impugned orders of the Deputy
Director of Consolidation dated 18.7.2005
and 1.6.2005 (annexure no. 2 and 1
respectively) are hereby quashed and now
the revisions will be heard and decided by
the revisional court keeping in mind the
observation as made in this judgment.

Parties are to bear their own costs
Petition Allowed.
---------
3 All] Sudarshan Yadav V. The Dy. Director of Consolidation, Ballia and others
1103
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.06.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

First Appeal From Order No. [620] of
2006

M/s Ashok Prakashan and another

 ...Defendant-Appellants
Versus
Sunil Kumar and others ...Plaintiffs-
Opposite Parties

Counsel for the Appellants:
Sri M.K. Gupta

Counsel for the Opposite Parties:
Sri B.D. Mandhyan
Sri M. Saxena
Sri R.B. Singhal
Sri Murlidhar
Sri Ajit Kumar
Sri Anoop Trivedi

Code of Civil Procedure-Order 39 rule I3-Grant of Interim Injunction-without
issuing Notices to other side-on the last
day of working-without considering the
mandatory reequirement before passing
the
interim
order-held-can
not
sustained-operation of Injunction order
stayed-Trail Court directed to decide the
interim injunction as fresh-after hearing
to both the parties within six weeks.

Held: Para 22, 23 and 25

In view of the aforesaid, I find that the
Court below had committed a manifest
error in granting an exparte injunction in
favour of the plaintiff. In the opinion of
the Court, the Court below should not
have issued an exparte injunction, and
that to, on the last working date of the
Court. In my view, the application for
injunction
ought
to
have
been
considered by the Court after notices
were issued to the opposite parties.
Consequently, at this moment, I do not
find that the basic ingredients for the
grant of injunction existed. Further the
mandatory provisions of Order 39 Rule 3
C.P.C. was not complied by the Court
below.
Consequently,
the
injunction
cannot continue any further.

In view of the aforesaid, the effect and
operation of the injunction order dated
29.5.2006
passed
by
the
Incharge
District Judge, Meerut in Original Suit
No.1 of 2006 shall remain stayed till
further orders of the Court.

Since 6.7.2006 has been fixed for the
appearance
of
the
defendantsappellants. I direct the defendantsappellants to appear before the Court
below on the said date and file their
reply/ objections. The Court below shall
consider
the
injunction
application
afresh and shall pass such and further
orders after hearing the parties within
six
weeks
from
the
date
of
the
production of a certified copy of this
order.
AIR 1970 Alld.-376

(Delivered by Hon'ble Tarun Agarwala, J.)

1. This First Appeal From Order
under Order 43 Rule 1(r) of the Civil
Procedure Code is against an exparte
injunction dated 29.5.2006 passed by the
Incharge
District
Judge,
Meerut
in
Original Suit No.1 of 2006 restraining the
defendant-appellants
from
printing,
publishing and selling the books, detailed
at the foot of plaint and from using the
name G Ram or J Ram.

2. The brief facts, as enumerated in
the plaint is, that the plaintiffs' father G
Ram and defendant Nos. 1 and 2 are real
brothers. The plaintiff's father had written
several books which were published by a
firm known as Ashok Prakashan, in which
defendant Nos. 1 and 2 were the partners.