# Tarawati @ Muna v. D.D.C. Unnao & Ors

- **Citation:** (2023) 7 ILRA 196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-14
- **Case number:** Writ B No. 32911 of 2019
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tarawati-muna-v-d-d-c-unnao-ors-50403
- **Pages:** 5

## Headnote

A. Consolidation Law - UP Consolidation
of Holding Act, 1953 - Section 19(f) -
Allotment of chak - Roadside chak - Cosharer's entitlement - All the co-sharers
were allotted the Chaks on the side of
Khadanja
by
CO
-
In
appeal,
the
petitioner's chak has come on the back
side,
though
other
co-sharers
were
allotted
the
Chaks
on
the
side
of
Khadanja - Legality challenged - Held, if
the original holding is on the road side
and partition has not taken place, then all
the co-sharers will have right over whole
of the holding, therefore the Chaks
should be made in a manner that all the
co-sharers may get Chaks on the road
side and with their improvements, unless
there is any legal impediment or not
possible at all for the reasons to be
recorded. (Para 3 and 9)

Writ petition partly allowed. (E-1)

List of Cases cited:
7 All. Tarawati @ Muna Vs. D.D.C. Unnao & Ors.
197

## Text

196 INDIAN LAW REPORTS ALLAHABAD SERIES
not been approved though in respect of
State Government employees the provision
has been amended where "family" now
includes daughters irrespective of their
marital status. It cannot be presumed that
the State while rejecting the proposal sent
by the Institutional Service Board for
amending Regulation 104 was not aware of
the Division Bench Judgment of this Court
in the case of Vimla Srivastava and Neha
Srivastava (supra). It is also difficult to
comprehend as to why the fact that the
special leave petition filed by the State in
the case of Neha Srivastava has been
dismissed paving the way to give the
benefit of compassionate appointment to all
the daughters of the deceased employees
irrespective of their marital status has gone
unnoticed.

9. For the aforesaid reasons, this writ
petition
is
allowed
and
the
word
"unmarried" occurring in the note appended
to Regulation 104 of U.P. Cooperative
Societies Employees' Service Regulations,
1975 is hereby struck down.

10. We, accordingly, also quash the
impugned order dated 29.01.2021 passed
by the General Manager (Administration)
of the respondent-Bank as is contained in
Annexure 2 to the writ petition.

11. Resultantly, we also direct that the
claim of the petitioner shall be considered
for compassionate appointment treating her
to be eligible for such claim, within a
period of two months from the date of
production of a certified copy of this order.

12. We categorically direct the
authority concerned of the respondentBank shall decide the claim of the
petitioner within the period which is being
stipulated in this order for the reason that
already about four years time period has
elapsed from the date of death of the
deceased employee.
----------
(2023) 7 ILRA 196
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Writ B No. 32911 of 2019

Tarawati @ Muna ...Petitioner
Versus
D.D.C. Unnao & Ors. ...Respondents

Counsel for the Petitioner:
Anoop Srivastava

Counsel for the Respondents:
C.S.C., Yogendra Nath Yadav, Dileep
Kumar Pandey

A. Consolidation Law - UP Consolidation
of Holding Act, 1953 - Section 19(f) -
Allotment of chak - Roadside chak - Cosharer's entitlement - All the co-sharers
were allotted the Chaks on the side of
Khadanja
by
CO
-
In
appeal,
the
petitioner's chak has come on the back
side,
though
other
co-sharers
were
allotted
the
Chaks
on
the
side
of
Khadanja - Legality challenged - Held, if
the original holding is on the road side
and partition has not taken place, then all
the co-sharers will have right over whole
of the holding, therefore the Chaks
should be made in a manner that all the
co-sharers may get Chaks on the road
side and with their improvements, unless
there is any legal impediment or not
possible at all for the reasons to be
recorded. (Para 3 and 9)

Writ petition partly allowed. (E-1)

List of Cases cited:
7 All. Tarawati @ Muna Vs. D.D.C. Unnao & Ors.
197
1. Hansraj Vs Mewalal; 2019 (142) RD 812

2. Gram Panchayat, Kanonda Vs Director,
Consolidation of Holdings, Haryana & ors.; 1989
Supp 5 SCC 465

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Shri Anoop Srivastava,
learned counsel for the petitioner. Learned
Additional Chief Standing Counsel for
respondent nos.1 & 2 and Shri Dileep
Kumar Pandey, learned counsel for the
respondent no.4 are present. None has put
in appearance on behalf of the respondent
no.3, despite sufficient service of notice.

2. This petition has been filed
challenging the order dated 09.01.2019
passed
by
Settlement
Officer,
Consolidation,
Unnao,
contained
in
annexure
no.2
and
the
order
dated
21.10.2019 passed by Deputy Director of
Consolidation,
Unnao,
contained
in
annexure no.1 to the writ petition.

3. Learned counsel for the petitioner
submits that the petitioner and the
respondent no.2 were allotted the Chaks
on their original holdings bearing Gata
No.751 on the side of Khadanja. On an
appeal preferred by the respondent no.3,
the respondent no.3 has been allotted the
Chak on the southern side of the plot,
therefore the Chak of the petitioner has
come on the back side, whereas all the
co-sharers should have been allotted the
Chaks on the side of Khadanja. This
order was passed on 09.01.2019 without
affording opportunity to the petitioner.
The petitioner preferred a revision before
the Deputy Director of Consolidation
taking specific plea that the petitioner and
the respondent no.3 were allotted the
Chaks on their holdings on the side of
Khadanja, therefore, the Chaks carved out
by
Consolidation
Officer
may
be
maintained.

4. He further submits that the
petitioner
had
also
preferred
an
application annexing the order passed by
the Hon'ble Supreme Court in the case of
Hansraj Vs. Mewalal; 2019 (142) RD
812, but without considering the grounds
raised by the petitioner and the judgment
relied by the petitioner, the Deputy
Director of Consolidation dismissed the
revision by a non-speaking order dated
21.10.2019, only on the ground that the
petitioner and the respondent no.3 have
been given Chaks on their original
holdings. Therefore, the petitioner is
constrained to approach this Court.

5. On the basis of above, learned
counsel for the petitioner submits that the
orders passed by the Deputy Director of
Consolidation and the Settlement Officer,
Consolidation are liable to be quashed
and
the
Chaks
allotted
by
the
Consolidation Officer by means of the
order dated 28.11.2018 are liable to be
maintained.

6. I have considered the submissions
of learned counsel for the petitioner and
perused the material available on record of
this petition.

7. The Assistant Consolidation Officer
had proposed the Chaks to the petitioner,
who is Chakdar No.223 and the respondent
no.3, who is Chakdar No.443 on their
holdings bearing Gata No.751 from east to
west. The respondent no.3 filed an
objection before the Consolidation Officer,
under Section 21(1) of the Consolidation of
Holdings Act, 1953 (herein after referred as
Act of 1953) claiming his Chak on the
southern side of the plot. The objection was
198 INDIAN LAW REPORTS ALLAHABAD SERIES
considered and rejected after considering
the records and map of the village by
means of the order dated 28.11.2018. The
respondent no.3 had preferred an appeal
under Section 21(2) of the Act of 1953
before
the
Settlement
Officer,
Consolidation. The Settlement Officer,
Consolidation by means of the order dated
09.01.2019, allowed the appeal on the
ground that as per the report of the
Consolidator the holding of the petitioner is
on the southern side of the Gata No.751 but
the Chak of the petitioner has been made
from north to east. The petitioner had
preferred a revision before the Deputy
Director of Consolidation on the grounds
that the spot inspection referred by the
Settlement Officer, Consolidation is exparty and without any intimation to the
petitioner, Chaks of both the parties were
carved out by the Consolidation Officer on
the side of the Khadanja and on account of
amendment of Chaks by the Settlement
Officer, Consolidation, the petitioner would
be deprived of his trees and mill (Chakki)
situated on the Chak allotted to the
petitioner by the Consolidation Officer.

8. Perusal of the order dated
21.10.2019
passed
by
the
revisional
authority i.e. the Deputy Director of
Consolidation,
Unnao,
contained
in
annexure no.1, indicates that the grounds
raised by the petitioner have not been
considered by the revisional authority and
the revisional authority has dismissed the
revision only on the ground that the
petitioner and the respondent no.3 have
been allotted the Chaks on their original
holdings.

9. Section 19(f) of the Act of 1953
provides that every tenure holder is, as far
as possible, allotted the plot on which
exists his private source of irrigation or any
other improvement, together with an area in
the vicinity equal to the valuation of the
plots originally held by him, therefore,
while allotting the Chaks the authority has
to consider the statutory provision and as to
whether any improvement made by the
petitioner is existing on the Chak given to
him or not. In this case the petitioner is
claiming that his trees and mill are situated
on the Chak allotted by the Consolidation
Officer. If the original holding is on the
road side and partition has not taken place,
then all the co-sharers will have right over
whole of the holding, therefore the Chaks
should be made in a manner that all the cosharers may get Chaks on the road side and
with their improvements, unless there is
any legal impediment or not possible at all
for the reasons to be recorded.

10. The Hon'ble Supreme Court in the
case of Hansraj Vs. Mewalal (Supra) has
held that if there are co-sharers and the
partition has not taken place under Section
176 of the U.P. Zamindari Abolition &
Land Reforms Act, 1950, then till holding
is devided in accordance with Section 176
every co-sharer of plot has right on the
holding therefore the allotment made by the
Consolidation Officer to the co-sharers on
the pitch road was justified and the same
could not have been changed. The relevant
paragraphs 11 and 12 are extracted here-inbelow:-

"11. There is one more reason due
to which no interference was required in
the order of the Settlement Officer
Consolidation and the Deputy Director,
Consolidation, i.e., the appellant and the
respondents were all co-sharers of Plot
No.677. Even though parties were in
possession of some portions of the plot by
mutual arrangement, there was no partition
of holding. It is relevant to note that
7 All. Tarawati @ Muna Vs. D.D.C. Unnao & Ors.
199
agricultural holding can be partitioned by
instituting the proceedings under Section
176 of U.P. Zamindari Abolition & Land
Reforms Act, 1950 which is as follows:

"176. Holding of a bhumidhar or
sirdar divisible. (1) A bhumidhar may sue
for [division] of his holding.

(2) To every such suit the Gaon
Sabha concerned shall be made a party."
Till holding is divided in accordance with
Section 176 every cosharer of plot has right
on the holding.

12. It is not the case of any of the
parties that holding was partitioned by an
order obtained under Section 176. All the
cosharers had right in the plot in question
and holdings were not partitioned as per
law. The appellant was fully justified in
claiming right of allotment on a portion of
plot on the pitch road. The Assistant
Consolidation Officer has proposed the
chaks to the parties in a manner so that
every one gets chak on the pitch road. The
Consolidation Officer has reversed the
allotment of chaks by putting the appellant
on the southern side away from the road
and allocating the chaks on the pitch road
in favour of the respondents which order
was rightly reversed by the Settlement
Officer of the Consolidation which was an
equitable order by which Ram Milan who
was given chak including the area where he
was
constructing
the
house
on
the
northeastern portion of the plot. The
appellant was allotted an area comprising
his pumping set and also by allocating chak
part of which was on pitch road, other
respondents were allotted the chak in such
a manner that everyone got their chak on
the pitch road. There was no justifiable
reason for setting aside the order of the
Settlement
Officer
Consolidation
and
Deputy Director, Consolidation. It is to be
noticed
that
Settlement
Officer
Consolidation and Deputy Director while
passing their orders have also inspected the
spot and the orders passed by them were on
the basis of spot inspection. The High
Court in exercise of its jurisdiction under
Act 226 committed error in allowing the
writ petition by restoring the order of the
Consolidation Officer which was an
inequitable
order.
In
the
facts
and
circumstances of the present case, equity
was adjusted by the order of Settlement
Officer of Consolidation in making the
chak in the manner that chak of every
cosharer was on the pitch road which order
needed no interference by the High Court.
The appellant filed a review which was too
dismissed
by
the
High
Court
on
20.01.2014."

11. The impugned orders have been
passed without assigning reasons and the
Deputy Director of Consolidation has
passed the order without considering the
grounds raised by the petitioner and
assigning reasons as to why the grounds
taken by the petitioner are not tenable,
whereas assigning reasons are necessary to
show that the order has been passed after
application of mind and why the grounds
are
not
tenable.
The
Consolidation
Authorities have to consider the objections
and the grounds and the consideration can
be reflected only by assigning reasons,
therefore
the
orders
passed
by
the
authorities must contain the reasons on
which the grounds taken for assailing the
order are not tenable, therefore the reasons
are must for deciding a controversy.

12. The Hon'ble Supreme Court, in
the case of Gram Panchayat, Village-
Kanonda, Tehsil Bahadurgarh, District-
Rohtak Vs. Director, Consolidation of
Holdings, Haryana, Chandigarh and
Others; 1989 Supp 5 SCC 465, has held
that
it
is
no doubt
true
that
the
200 INDIAN LAW REPORTS ALLAHABAD SERIES
Consolidation Officer, who has prepared
the scheme or confirmed it or modified or
re-partition made and when it is objected to
by the affected party, has to consider the
objections and, as a part thereof by
necessary implication, has to assign reasons
and the record must contain reasons and he
is not free to take arbitrary decision and
assigning reasons are sine quo non for
application of the mind.

13. In view of above, and considering
the over all facts and circumstances of the
case,
the
impugned
orders
dated
09.01.2019 passed by the Settlement
Officer,
Consolidation,
Unnao
and
21.10.2019 passed by the Deputy Director
of Consolidation, Unnao are not sustainable
in the eyes of law and liable to be quashed
with a direction to reconsider the appeal
filed by the respondent no.3 and pass a
fresh order after affording opportunity to
the parties in accordance with law.

14. The writ petition is, partly
allowed. The impugned orders dated
09.01.2019 and 21.10.2019 are hereby
quashed. The matter is remitted back to the
Settlement Officer, Consolidation, Unnao
to decide the Appeal No.66 of 2019; Rama
Kant Vs. Tarawati and Others, a fresh after
affording opportunity to the parties in
accordance with law expeditiously. No
order as costs.
----------
(2023) 7 ILRA 200
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.06.2023

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ C No. 17356 of 2023
Khursheed Ahmad ...Petitioner
Versus
Addl. District Judge, Court No. 1 Azamgarh
& Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare (Sr. Adv.), Sri Shantanu
Khare

Counsel for the Respondents:
Sri Anand Bhaskar Srivastava, Standing
Counsel, Sri Prabhakar Awasthi

A. Local Body Law - UP Panchayat
Raj Act, 1947 - Section 12-C -
Election of Pradhan - Recounting of
votes - Proforma Form 36 bearing
details of number of ballot paper and
votes cast, could not be placed -
Except an assertion and affidavits of
other
candidates,
the
electionpetitioner
could
not
place
any
material regarding his claim that
number of total votes cast were 1170
-
Effect
-
Held,
the
Revisional
Authority, without summoning record
or
taking
an
explanation
from
Election Officer, has rushed through
the
matter
and
without
any
reasonable basis or finding arrived to
a conclusion that there was an error
in number of valid votes and passed
order
for
recounting
-
Order
of
recounting
cannot
be
passed
on
assumption rather there must be a
ground
based
on
material
and
evidence that a case of recounting is
made out, however, such basis is
missing in the impugned order - Smt.
Sajida's case relied upon. (Para 18,
19 and 21)

Writ petition disposed of. (E-1)

List of Cases cited:

1. Ram Adhar Singh Vs District Judge, Ghazipur
& ors.; 1985 SCC OnLine All 246

2. Smt. Sajida Vs Sub-Divisional Magistrate,
Kairana & ors.; 2023 SCC OnLine All 11