Court No. - 45
Case :- WRIT - B No. - 33966 of 1993 Petitioner :- Smt. Gulaicha And Others Respondent :- The D.D.C. And Others Counsel for Petitioner :- Rahul Sripat,Jameel A.Azmi,R.S. Kushwaha Counsel for Respondent :- S.C.,P.K.S. Paliwal
Hon'ble Salil Kumar Rai,J.
1. Heard learned counsel for the parties.
2. The facts relevant for a decision of the writ petition are that one Kalika was chak holder No. 58 and the respondent No. 2 was chak holder No. 508. The dispute between the parties in the present writ petition as well as in the consolidation proceedings from which the present writ petition arises relates to Plot No. 253. It appears that Plot No. 253 was proposed in Chak No. 508 by the Assistant Consolidation Officer and aggrieved Kalika filed objections registering Case No. 2809 before the Consolidation Officer (hereinafter referred to as, 'C.O.') claiming a chak on Plot No. 253. The aforesaid objections of Kalika were allowed and Chak No. 253 was included in Chak No. 58. Aggrieved, respondent No. 2 filed an appeal under Section 21(2) of the Uttar Pradesh Consolidation and Holdings Act, 1952 (hereinafter referred to as, 'Act, 1953') before the Assistant Settlement Officer of Consolidation (hereinafter referred to as, 'A.S.O.C.') which was registered as Appeal No. 539. The A.S.O.C. dismissed the aforesaid appeal filed by respondent No. 2. Subsequently, respondent No. 2 filed Revision No. 814/119 under Section 48 of the Act, 1953 before the Deputy Director of Consolidation, Azamgarh, i.e., respondent No. 1 (hereinafter referred to as, 'D.D.C.') which was partly allowed by the D.D.C. vide his order dated 16.6.1992.
3. The grievance of the respondent No. 2 in the appeal and revision was that as a result of the order of Consolidation Officer, the Chak No. 58, chak allotted to respondent No. 2 became irregular and 'L' shaped. In her appeal and revision, the respondent No. 2 prayed that her chak be widened and that her chak be formed East-West so that she made get the entire area infront of her house. The chak allotted to respondent No. 2 was infront of her house. In his order dated 16.6.1992, the D.D.C. did not accept the claim of respondent No. 2 as payed by her in her appeal and revision, but considering the equities of the case widened her chak on the Northern side as a result of which some area of Plot No. 253 in Chak No. 58 was withdrawn and included in Chak No. 508, i.e., the chak of respondent No. 2. It is also apparent from the records that during the proceedings before the D.D.C., Kalika died and Shiv Kumar, Umapati and Vachaspati were substituted as respondents in Revision No. 814/199 in place of Kalika. Subsequently, petitioners filed a recall application dated 25.8.1992 in Revision No. 814/119 praying for recall of the order dated 16.6.1992 on the ground that Kalika died during the proceedings in the said revision and his estate devolved on his widow Ramrani, who had executed a Will in favour of the petitioners, and therefore, after the death of Ramrani, the petitioners succeeded to the estate of Kalika and were thus entitled to be substituted in place of Kalika in Revision No. 814/119 and were also entitled to be heard in the revision filed by respondent No. 2. It was stated in the said recall application that the order dated 16.6.1992 was passed without giving any notice or opportunity of hearing to the petitioners and was therefore liable to be recalled and Revision No. 814/119 was liable to be reheard after restoring the same to its original number. On the aforesaid recall application, Restoration Case No. 543 under Section 201 of Uttar Pradesh Land Revenue Act, 1901 (hereinafter referred to as, 'Act, 1901') was registered in the court of the D.D.C., who vide his order dated 7.9.1993 dismissed Restoration Case No. 543. The order dated 7.9.1993 was passed by the D.D.C. on the ground that the petitioner No.
1 was effectively represented by her husband who was doing Pairvi of the case on behalf of Kalika and respondent No. 2. The orders dated 16.6.1992 and 7.9.1993 passed by the D.D.C. have been challenged in the present writ petition.
4. It was argued by the counsel for the petitioners that petitioner Nos. 1 and 2 were the heirs and legal representatives of Kalika and were therefore entitled to be heard in Revision No. 814/119. It was argued that the order dated 16.6.1992 was passed without giving any notice to the petitioners and without affording the petitioners any opportunity of hearing and therefore the order dated 16.6.1992 was violative of principles of natural justice and liable to be set aside. It was further argued that under the law, the petitioners were necessary parties in the case after the death of Kalika and therefore Revision No. 814/119 could not have been decided without impleading/substituting the petitioners in place of Kalika after his death and the fact that the husband of petitioner No. 1 was substituted in place of Kalika and was doing pairvi on behalf of Kalika was not sufficient to deprive the petitioners from an opportunity of hearing in Revision No. 814/119. It was also argued that for the aforesaid reasons, the orders dated 16.6.1992 and 7.9.1993 passed by the D.D.C. are illegal and contrary to law and liable to be set aside.
5. I have considered the submission of the learned counsel for the petitioners and also perused the record.
6. It is pertinent to note that after the death of Kalika, Shiv Kumar, Umapati and Vachaspati were substituted as opposite parties in Revision No. 814/119. Shiv Kumar is the husband of petitioner No. 1. Further, during the pendency of the writ petition before this Court, petitioner No. 2 died and it is evident from the array of parties that Umapati and Vachaspati, i.e., two persons who were substituted in place of Kalika, have also been substituted in place of petitioner No. 2 as her legal heirs and legal representatives in the writ petition. It is also relevant to note that after Umapati, Vachaspati and Shiv Kumar were substituted in place of Kalika in Revision No. 814/119, no objections were filed either by the aforesaid persons bringing to the notice of the Court that they were not the heirs and legal representatives of Kalika nor any objections were filed by petitioners stating that Umapati, Vachaspati and Shiv Kumar were not the heirs and legal representatives of Kalika but the petitioners were the heirs and legal representatives of Kalika. It can not be believed that petitioner Nos. 1 and 2 who were the heirs of Kalika did not know about the proceedings in Revision No. 814/119. In Revision No. 814/119, the petitioner No. 1 was effectively represented by her husband and the petitioner No. 2 was represented by her heirs and legal representatives, who have now been substituted in place of petitioner No. 2 in the writ petition as petitioner Nos. 2/1 and 2/2. It would be futile to consider the case of petitioner No. 2 in Revision No. 814/119 as the estate of petitioner No. 2 is now represented by petitioner Nos. 2/1 and 2/2, who were substituted in place of Kalika in the revision filed by the respondent No. 2.
7. The facts state above clearly shows that the interest of petitioner Nos. 1 and 2 was substantially protected and represented by the persons substituted in place of Kalika and the D.D.C. in his order dated 7.9.1993 has rightly rejected the Restoration Case No. 543 refusing to recall his order dated 16.6.1992 on the aforesaid technical grounds.
8. So far as the merits of the order dated 16.6.1992 are concerned, no arguments were raised by the counsel for the petitioners against the same, but a perusal of the records shows that a supplementary affidavit has been filed by the petitioners stating that the allotment of chak by the Consolidation Officer was on the basis of a compromise entered into between the husband of respondent No. 2 and Kalika. It has been stated that Plot No. 508 was included in the chak of Kalika, i.e., Plot No. 58 on the basis of a compromise entered into between the parties in Case No. 2809. Further, in the revision, the legal representatives of Kalika had raised the plea that Plot No.
253 was the original holding of Kalika and therefore the same could not have been withdrawn from Chak No. 58.
9. I have perused the compromise. The recital in the alleged compromise does not show that the husband of respondent No. 2 had agreed to relinquish his claim over Plot No. 253. The compromise merely contains an acknowledgement that the Plot No. 253 has been included in Chak No. 508 and an agreement that the chak holder No. 58 be allotted a chak on the Northern Side of Chak No. 508. A reading of the compromise shows that through the aforesaid compromise Sita Ram had relinquished his claim over Plot No. 1389/2 (area .028). Incidently, the area of Plot No. 253 is also .028. In that view of the matter it can not be held that the allotment by the C.O. including Plot No. 253 in Chak No. 58 was a result of the compromise allegedly entered into between the husband of respondent No. 2 and Kalika. Further, a reading of the orders dated 14.11.1972 passed by the A.S.O.C., 16.6.1992 and 7.9.1993 passed by the D.D.C. does not show that any such objection that the order of the C.O. was passed on the basis of a compromise were raised by Kalila or his legal representatives before the appellate authority or the revisional authority. For the said reason, the petitioner Nos. 1 and 2 can not be permitted to raise the said objections for the first time under Article 226 of the Constitution of India.
10. Apart from the above, a reading of the order dated 16.6.1992 passed by the D.D.C. and a comparative perusal of the amended schedule annexed with the order of the D.D.C. and C.H. Form 23 of Kalika annexed with the supplementary affidavit shows that the total area of Plot No. 253 allotted in Chak No. 58 by the order of the C.O. has not been withdrawn from Chak No. 58 by the order dated 16.6.1992 and only a small area has been withdrawn by the D.D.C. The said amendments have been made by the D.D.C. to balance the equities in the case and require no interference by this Court in its writ jurisdiction. It is not the case of the petitioners that they have not been allotted any chak on their largest original holdings so as to make the allotment of chaks violative of principles enumerated in Section 19 of the Act, 1953.
11. For the aforesaid reasons, there is no illegality in the orders dated 16.6.1992 and 7.9.1993 passed by the D.D.C. and it is not a fit case for interference by this Court in its equitable and extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition lacks merit, and is, accordingly dismissed.
12. Interim order, if any, stands vacated.
Order Date :- 29.4.2019 Anurag/-