Heard learned counsel for the petitioners Sri S.K. Tyagi and Sri Ramendra Asthana for the respondent no. 2. In view of the nature of the proceedings, and the order that is proposed to be passed, it is not necessary to issue notices to the respondent nos. 3 to 6 who are proforma respondents in the present proceedings. The main contest is with regard to the allocation of shares over plot no. 136/1, particularly, that portion which includes trees said to have been planted and shown in C.H. Form 2A in the share of Kiran Singh-respondent no. 4.
The contesting respondents had filed an objection under Section 21(1) of the U.P. C.H. Act, 1953 which was rejected on 17.8.1990. The said order came to be assailed through a time barred appeal which was dismissed on 4th May, 1996 after condoning the delay. The Settlement Officer Consolidation held that the respondents had no claim surviving and if they are claiming any entitlement over the trees they ought to have filed objections under Section 9A(2) of the U.P. C.H. Act, 1953. It is not disputed at the bar that such objections have been filed by the respondents and they are still pending consideration.
Aggrieved by the order of the Settlement Officer Consolidation a revision was filed by the respondents and the same has been allowed by the impugned order dated 21st October, 2011 based on a report of the Assistant Consolidation Officer dated 8th August, 2007 which in turn is founded on an alleged spot inspection. The Deputy Director of Consolidation has reversed the order of the Settlement Officer Consolidation and the Consolidation Officer on the ground that the respondents have been deprived of their holding which included the portion of the trees planted thereon and therefore they are entitled for allotment to that extent of valuation over plot no. 136/1.
Sri Tyagi submits that the said conclusion is based on a report of the year 2007 ignoring the entry as endorsed in C.H. Form 2A and further that no orders have been passed in favour of the respondents in their claim set forth in the objection under Section 9A(2) of the U.P. C.H. Act, 1953 referred to hereinabove.
Sri Tyagi further submits that the Deputy Director of Consolidation has therefore travelled beyond his jurisdiction to have reversed the orders on the basis of an alleged fact which came into existence in the year 2007 almost after 17 years of the consolidation operations and such facts could not have been the basis of the allotment as claimed by the respondents.
Sri Ramendra Asthana learned counsel for the respondent no. 2 submits that it is not necessary to file any counter affidavit, inasmuch as, the order of the Deputy Director of Consolidation is based on a spot inspection and as such the same does not deserve any interference by this Court.
Having heard learned counsel for the parties, it is evident that the allotments came to be made on the basis of the existence of the claim including the claim over the trees as indicated and entered at the time of survey under C.H. Form 2A. The Settlement Officer Consolidation therefore rightly dismissed the appeal and further concluded that in case the respondents are claiming any entitlement over the trees they have a remedy to file an objection under Section 9A(2).
In my opinion, both these aspects have been completely overlooked by the Deputy Director of Consolidation by placing reliance on a report of 8th August, 2007 which obviously is later in point of time and had no relevance to the claim of the parties that came to be concluded by the order of the Consolidation Officer way back in 1990. The order dated 21.10.2011 cannot be sustained. It is hereby quashed without prejudice to rights of the contesting respondents to stake their claim in relation to the share of the plot in question on the strength of the alleged existence of the trees as claimed by them in the objections filed under Section 9-A(2) of the Act.
The writ petition is allowed.
Order Date :- 15.12.2011 Sahu