1. Heard learned counsel for the petitioner, Sri P.S. Pandey for the private respondents and learned Standing Counsel for the State respondents.
2. The petitioner challenges the order dated 4.6.2016 passed by the Deputy Director of Consolidation, Lucknow (hereinafter referred as 'respondent no.1').
3. It is the case of the petitioner that petitioner and respondent nos.2, 3 and 4 belong to the same family and were co-tenure holders of certain plots earlier. Respondent nos.2 and 3 are sons of respondent no.4. It has been submitted by the counsel for the petitioner that Plot no.34, 35 and 36 were the original holdings of the petitioner and on the basis of a mutual partition, he has been in possession thereof since long. The father of respondent nos.2 and 3 and husband of respondent no.4 who were co-tenure holder of the petitioner was in possession of Plot nos.104 and 105 as per the same mutual partition. When consolidation proceedings were initiated in village Andpur Umrao, Pargana Bijnaor, Tehsil and District Lucknow, the Assistant Consolidation Officer allotted chak over Plot no.52 and an udan chak over Plot nos.59, 58 and 57. The Consolidation Officer affirmed the proposal of the Assistant Consolidation Officer and therefore, the petitioner filed an appeal before the Settlement Officer Consolidation, namely Appeal no.27/2014-15. The Settlement Officer Consolidation taking into account the records and map of the village has also, after conducting on the spot inspection, passed an order on 14.9.2015 allotting chak over Plot nos.34, 35 and 36, the original holding of the petitioner, to the petitioner.
4. Respondent nos.2 to 5 preferred three separate revisions bearing Revision nos.257/2015-16 (Ram Prakash vs. Chavvi Nath), 256/2015-16 (Sanjeet Kumar Pal (Ranjeet Pal) vs. Chhavi Nath) and 258/2015-16 (Smt. Vindeshwari vs. Chhavi Nath) which were clubbed together and leading case was taken as Revision no.257/2015-16. The revisions were allowed on the sole ground that the petitioner is having private source of irrigation over Plot no.52 ignoring the fact that there is no private source of irrigation over Plot no.52 and that the petitioner on the basis of mutual partition had been in possession over Plot no.34, 35 and 36 since long time. It has been submitted that respondent no.1 altered the chak allotments made by the Settlement Officer Consolidation without making any on the spot inspection and without expressing any satisfaction as to the correctness, legality or propriety of the order passed by the Settlement Officer Consolidation. In fact, respondent no.1 far exceeded his jurisdiction as given under Section 48 of the Consolidation Of Holdings Act and without making any observation regarding correctness or otherwise of the order impugned in the revision has set aside the said order causing grave hardship to the petitioner as his original Plot nos.34, 35 and 36 have been handed over to the respondents on the ground that it is close to Nahar/Canal and the respondents shall enjoy the facility of irrigation from Canal whereas the petitioner shall enjoy the facility of irrigation from Tube-well situated near Plot no.52, a chak out land.
5. Sri P.S. Pandey, who appears for private respondent nos.2 to 4 has referred to his counter affidavit wherein it has been stated that the petitioner has been in possession over Plot no.52 and also has not handed over possession of Plot no.34, 35 and 36 to the respondents, which was rightly allotted to them. In the rejoinder affidavit, it has come out that the Consolidation Officer had allotted Plot no.52 to the petitioner as it was adjacent to Plot no.51 which had a Tube-well installed therein. Plot no.51 was chak out land where the grove of the petitioner was also situated. Both the parties have been allotted chak taking into account the facility of irrigation by the Consolidation Officer but the Settlement Officer Consolidation overturned the finding of the Consolidation Officer. The revisions have been rightly allowed by the respondent no.1 again looking into the provision of irrigation available to the parties.
6. In the rejoinder affidavit filed by the petitioner to the counter affidavit filed by the respondents, the petitioner has reiterated his pleadings in the writ petition and also stated that till date, no proceedings kabja parivartan or for implementation of the order passed by respondent no.1 has taken place, therefore, the petitioner is continuously cultivating Plot nos.34, 35 and 36 that has been allotted to him by the Settlement Officer Consolidation. It has further been submitted that the Settlement Officer Consolidation had made an on the spot inspection whereas the respondent no.1 without making such on the spot inspection, has overturned the finding of fact recorded by the Settlement Officer Consolidation. It has been submitted that Plot no.51 is outside the purview of consolidation and it has no private source of irrigation. There is an old and inoperative boring situated in Plot no.26 installed by the ancestors of petitioner as well as respondents, upon which all the co-tenure holders are having right.
7. During the course of argument, learned counsel for the petitioner has placed reliance upon two judgments of coordinate Benches of this Court namely, Ram Sumer and others vs. Deputy Director of Consolidation, Azamgarh and others 2002 (93) RD 368 and Prabhu Narain Singh Mahavidyalaya, Marhi, through its Manager vs. Deputy Director of Consolidation, Ghazipur and others.
8. It has been on the basis of judgments of coordinate Benches that the validity of the order passed by the courts below can be seen by the Deputy Director of Consolidation only in terms of Section 48 of the Consolidation of Holdings Act. The Deputy Director of Consolidation can send for the records and examine the same for the purpose of satisfying himself to the "correctness, legality or propriety" of an order, other than interlocutory order, passed by such authority and after allowing opportunity to all concerned, pass appropriate orders but this does not mean that if the learned courts below have recorded a finding of fact, the same can be overturned without making any reference to their correctness or otherwise.
9. It has been submitted that it has not been disputed that the Settlement Officer Consolidation had made an on the spot inspection and had then come to a conclusion regarding situation of irrigation facility, on the basis of which as also on the basis of possession, the order in appeal was passed. The appeal of the petitioner being allowed by the Settlement Officer Consolidation after making on the spot inspection, the respondent no.1 for reversing such order, should have also made an on the spot inspection.
10. In both the judgments relied upon by the counsel for the petitioner, coordinate Benches of this Court have held that the respondent no.1 is duty bound, being the last court of fact, to make on the spot inspection after due notice to all concerned before overturning a finding of fact recorded by the learned courts below.
11. This Court finds from the order of respondent no.1 that the same has been passed without making any observation regarding the correctness or otherwise of the order passed by the Settlement Officer Consolidation.
12. The order dated 4.6.2016 is set aside. The matter is remanded to the respondent no.1 to decide afresh after taking into account the finding recorded by the two learned courts below, and giving his own finding regarding correctness or otherwise of such finding in the order impugned before him. For such purpose, he may also conduct an on the spot inspection.
13. Let the revision be decided as expeditiously as possible as the matter has remained pending before the consolidation authorities for more than ten years.
14. The writ petition stands allowed to this extent.
Order Date :- 19.1.2021 Sachin