JUDGMENT Krishna Murari, J.
1. By means of this petition filed under Article 226 of the Constitution of India, the petitioners have challenged the order dated 4.8.1983 passed by the Deputy Director of Consolidation, in exercise of power under Section 48(3) of the U.P. Consolidation of Holdings Act (for short 'the Act'), remanding the proceedings back to the Consolidation Officer.
2. The facts are that after finalisation of proceedings under Section 9 as well as Section 20 of the Act an application was moved by opposite party No. 2 that he has not been provided 'chak nali' for irrigation of plot Nos. 257 & 259 included in his chak from his tubewell installed over his second chak No. 413 and as such he may be provided the same through plot No. 256. The Settlement Officer Consolidation vide order dated 1.1.1983 directed the Consolidation Officer to submit a report after making an inquiry and to send a proposal in case 'chak nali' has not been provided. The Consolidation Officer vide order dated 7.1.1983 called for a report from the Assistant Consolidation Officer, who in his turn, called for a report from the Consolidator. Accordingly, the Consolidator submitted a report dated 14.1.1983 that no 'chak nali' has been provided for irrigation from the tubewell existing in plot No. 413 and accordingly, the same may be provided which will affect the petitioner Nos. 1 & 2. The Assistant Consolidation Officer forwarded the report to the Consolidation Officer on 14.2.1983. When the reference reached the Settlement Officer Consolidation he found that reports are ex-parte and as such he directed the Consolidation Officer to submit a fresh report after hearing the parties. The Consolidation Officer after hearing only the petitioner Nos. 1 & 2 recorded that they have not given consent to the proposed 'nali' and directed the parties to appear before the Settlement Officer Consolidation on 24.4.1983. The Settlement Officer Consolidation without hearing the parties forwarded his recommendation on 3.5.1983 to the Deputy Director of Consolidation for accepting the reference. The Deputy Director of Consolidation vide order dated 7.6.1983 accepted the reference ex-parte without any notice or opportunity of hearing to the petitioners. The petitioners thereafter, moved an application for recalling the said order.
3. The case set up by petitioner Nos. 1 & 2 was that plot No. 256/2 is chak out and the same belong to all the petitioners and they have their 'pucca house's pucca madaha' and 6 ft. high boundary wall standing on the land through which the 'chak nali' is being proposed.
4. The Deputy Director of Consolidation vide impugned order dated 4.8.1983 recalled the earlier order dated 7.6.1983 and remanded the case back to Consolidation Officer to submit a fresh report after hearing the parties and after making a spot inspection himself to ascertain whether the proposed 'nali' is being carved out on the area of plot No. 256/2 which is chak out or from the area of the plot which is included in consolidation operation.
5. The impugned order of remand has been challenged by the petitioners mainly on the ground that no 'nali' can be provided for the benefit of an individual tenure-holder from the chak out land of the petitioners or even from the 'bachat' land as such the entire exercise is futile and there was no justification to remand the case back and the Deputy Director of Consolidation ought to have rejected the reference. Reliance in support of the contention has been placed on the decision of a learned Single Judge in the case of Sri Ram Maharaj Dubey v. Joint Director of Consolidation 1982 RD 350. It has also been urged that all the petitioners are co-tenure holders and the reports have been submitted ex-parte without hearing all of them and their pucca construction standing on the land in dispute through which 'nali' is proposed is liable to be demolished.
6. In reply it has been contended that there is no specific prohibition under the provision of the Act for not providing a 'nali' or chak road etc. to an individual tenure holder and as such no illegality has been committed by the Deputy Director of Consolidation in remanding the case back to the Consolidation Officer to submit a fresh report in this regard after hearing the concerned parties and making a spot inspection.
7. I have considered the argument advanced by learned Counsel for the parties and perused the record.
8. The question whether the consolidation authorities have power to provide 'nali' or chak road etc. for the benefit of any individual tenure-holder has drawn the attention of this Court in number of cases.
9. In the case of Sri Ram Maharaj Dubey (Supra) relied upon by the petitioners, a learned Single Judge has held that chak road and 'nali' etc cannot be provided for benefit of an individual tenure-holder in exercise of power under Section 48(3) of the Act and the same can be provided only if they are considered to be in the interest of tenure-holders in general. The same view was taken in two earlier decisions in the case of Raj Narain and Ors. v. Deputy Director of Consolidation 1982 ALJ 559 and writ petition No. 7791 of 1980 Udai Bhan Dubey and Anr. v. Sahayak Sanchalak Chakbandi and Ors. decided on 9.5.1982. Again in the case of Ram Murat v. Ma Saran and Ors. 1982 AWC 160 and Sri Pat v. Haridwar 1980 AWC 146, the two learned Single Judges have taken the same view.
10. In the case of Udai Bhan Dubey (Supra), it was held that application of individual tenure-holder wherein he prayed for providing 'rasta' to in the chak of his father from village abadi was not at all maintainable nor such request could be considered by the Assistant Settlement Officer Consolidation in exercise of his power under Section 42A of the Act. In the case of Sri Pat (Supra) another learned Single Judge took the same view and it was observed as follows :
No provision has been pointed out under the Act or the Rules framed under the Act for providing a 'rasta' and 'nali' to any private tenure-holder. In the absence of any specific provision under the Act or the Rules framed under the Act for any act to be done by any authority, nothing can be done by the Deputy Director of Consolidation in exercise of his powers under Section 48(3) of the Act. In this view of the matter, the application of the petitioner for providing 'rasta' & 'nali' from one chak to the other where he has got his pumping set was not maintainable.
11. The view taken in the case of Sri Pat (Supra) was considered by another learned Single Judge in the case of Rajpat Tiwari and Ors. v. Deputy Director of Consolidation 1981 (2) RD 198 and it was observed as follows :
It is not correct to contend that consolidation authorities have no jurisdiction to allot a chak road to an individual tenure-holder. The broad contention put forth by the learned Counsel for the petitioner in this case for attacking the impugned judgment on the ground that the revisional court has erred in giving a chak road to o.p. No. 4 is not acceptable to me. The purpose of the U.P. Consolidation of Holdings Act is to allot compact area to an individual tenure holder. Even if there is no provision under the Act to provide road to an individual tenure-holder incidental power of providing chak road, pathway etc. to an individual tenure-holder is inherent in the consolidation authorities. If they are debarred from providing a chak road to an individual tenure-holder more harm is likely to occur than they may have jurisdiction to provide such road to Individual tenure holder. In my opinion it is a necessary power in the consolidation authorities to provide a path road etc. to a tenure-holder with a view to carry out the purpose of the Act.
12. This view was again reiterated in the case of Rishi Narain v. Deputy Director of Consolidation 1983 RD 22.
13. The conflicting opinion expressed by the learned Single Judge on the point was considered in the case of Chandrika Rai v. Deputy Director of Consolidation, Ghazipur 1995 RD 53 and it was observed as follows :
In my opinion, wherever chak road or chak gool is provided, keeping in view the problems of individual tenure-holder, such provision sub-serves public purpose as well besides serving the purpose of individual tenure holders, Chak road or chak gool so provided does not cease to sub-serve public purpose merely because it has been provided on consideration of application filed by an individual tenure-holder vis-a-vis his difficulties.
14. The contrary view taken in the case of Ram Murat (Supra) and Sri Pat (Supra) were held to be per in curium for they were rendered in ignorance and without considering the relevant statutory provision. It was observed as follows :
Both decisions aforestated have been considered by Hon'ble K.P. Singh, J. in Rishi Narain (Supra). The decision in the aforesaid two cases relied upon by the counsel for the petitioner, are in my opinion, per In curium having been rendered without discussing the related provision discussed hereinbefore. The decision rendered in ignorance of the relevant statutory provision are cited but to be avoided and ignored on the doctrine of per in curium as explained by the Supreme Court in State of U.P. v. Synthetic & Chemical Limited.
15. I am in respectful agreement with the view taken by the learned Single Judge in the case of Chandirika Rai (Supra). There being no bar under the provision of the Act for not allotting road, pathway, nali etc. to a tenure-holder the authorities have inherent and incidental power to allot the same even to an individual tenure-holder under the general power vested in them of providing chak road, pathway etc. with the view to carry out for the purpose of the Act.
16. In view of the above, the first argument advanced by the learned Counsel for the petitioners that consolidation authorities are not vested with any power to provide 'chak nali', 'chak road' etc. to an individual tenure-holder is not liable to be ac