BALIKARAN Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) This writ petition is directed against the order dated. 6th October 1980 passed by the Deputy Director of Consolidation, Varanasi by which he has reviewed the earlier order dated 31st August 1979 passed in a revision under Section 48 of the U. P. Consolidation of Holdings Act. By this order the Deputy Director has made certain amendments in the chaks of the petitioners who are chak holder No. 197 and that of Ram Chander and Kali Charan, who are chak holders Nos. 267 and 29. The Deputy Director in the impugned order dated 6th August 1980 has observed that the amendment chart appended to the earlier order dated 31st August 1979 requires some amendments. He observed that on plot No. 145/0. 04 there are certain mango trees belonging to Ram Chander chaks holder No. 267. This plot has been allotted in the chak of Kali Charan in the amendment chart appended to the earlier order. He further observed that plot No, 144/. 0. 06, which has been allotted in the chak of Ram Chander, be allotted in the chak of the petitioners chak holder No. 197 as it is situate in front of their house and by the side of their. tube-well. He further observed that plot No. 144/. 0. 01 and plot No, 145/0. 01 be expunged from the chak of the petitioners and the same be allotted to chak holder No. 267 Ram Chander and plot No. 145 which has been allotted in the chak of Kali Charan he made north-south long instead of east west long and an area of 0. 06 of plot No. 145 be allotted to Kali Charan chak holder No. 29. The Deputy Director observed that this amendment will be beneficial to each tenure-holder because Rani Chandra chak holder No. 267 will get the land on which his mango trees are situate and the petitioners will get land in front of their house while opposite party No. 3 Kali Charan chak holder No. 29 will also get land at the appropriate place. He has not disturbed the finding recorded in the earlier order but he has made the amendment in the position of the chaks which were allotted to the petitioners as well as to opposite parties nos. 2 and 3, which appeared to be in their interest. Learned counsel for the petitioners contended that by the impugned order their bamboo clumps and trees situate on plot No. 144 have gone out of their chak. Nothing appears in the impugned order that as; a consequence of the amendment made in the chaks of the petitioner and opposite parties Nos. 2 and 3 the bamboo clumps and trees, which are claimed by the petitioners to belong to them, have been allotted to opposite parties Nos. 2 and 3. However, if any bamboo clump and trees belonging to the petitioners are situated on the land allotted to opposite parties Nos. 2 and 3, the same would continue to belong to the petitioners because no compensation has been assessed and direc ted to be paid by opposite parties to the petitioner. Under Section 30 (b) of the U. P. Consolidation of Holdings Act, the tenure-holder entering into possession of the chak allotted to him, shall have same rights, title, interest and liabilities as he had in the original holdings together with such other benefits of irrigation from a private source, as the former tenure-holder of the plots comprising t tie chak had in regard to them, but he would not be entitled to lay any claim to the trees, wells and other improvements situated in such land belonging to former tenure-holder in case no compensation has been assessed and directed to be paid by him to the former tenure-holder who was owner of the same. It is well settled that one can hold trees on land belonging to other tenure-holder and Rule 26-A of the U. P. Zamindari Abolition and Land Reforms Rules was declared ultra vires by the Division Bench of this Court in Aman Singh v. Shivdhari (1967 A. L. J. 21 ). The said rule has also been deleted. The petitioners, therefore, would continue to hold the trees, as owner thereof, although those are situated on the land which has been allotted to opposite parties Nos. 2 and 3, as no compensation has been assessed and directed to be paid to them. No one shall be deprived of his property save by authority of law and without payment of compensation, is a constitutional guarantee. The valuation of trees and other improvements situated on the land included in the consolidation scheme is to be made in accordance with the provisions of U. P. Consolidation of Holdings Act and Rules. If certain trees, well other improvements belonging to a tenure-holder fall inside the chak allotted to other tenure-holder, the former tenure-holder is to be paid compensation in respect of such trees,. well and improve ments, ff that is done the former tenure-holder will cease to hold a right, title or interest in the trees and well etc. but if no compensation is paid to him in respect of those, the same would continue to belong to him. Learned counsel for the opposite parties Nos. 2 and 3 vehemently refuted the allegations of the petitioner's counsel and urged that in fact no bamboo clumps of trees belonging to the petitioners are situated on the land in question which has been allotted to opposite parties Nos. 2 and 3 and as such there was no question for awarding any compensation to the petitioners. That may or may not be so. it is however, made clear that in case bamboo clumps and trees belonging to the petitioners are situated on the land allotted to opposite parties Nos 2 and 3, the same would continue to belong to them as no compensation has been directed to be paid to them, as was required under the Act, but if bamboo clumps and trees do not belong to the petitioners, they cannot lay any claim to those trees and bamboo clumps. Learned counsel for the petitioners contended that under Section 48, sub-clause (1) of the Act the Deputy Director has got no power of review and as such he could not pass the impugned order dated 6th October 1980. In support of his contention he placed reliance upon the decision in Jai Narain v. Joint Director Consolidation (1982 A. G. J. 30) wherein it has been observed that the Deputy Director of Consolidation is not possessed of any power of review under Section 48 of the Act nor he has got inherent jurisdiction to review. There is no dispute with the proposition of law laid down in the aforesaid decision but the fact remains that by the impugned order the Deputy Director appears to have made slight alterations in the chaks of the petitioners and of opposite parties Nos. 2 and 3 so as to bring it in line of the findings and directions in the order itself and which were in the best interest of the parties. The petitioners have by the impugned order received land in front of this house. This land was allotted to chak holder No. 267 Ram Chandra. By this order a chance of any possible dispute cropping up in future between the petitioners and opposite party No. 2 is obviated as the petitioners have now been allotted land in front of their own house. They, therefore, can have no grievance against the impu gned order possible party No. 2 Ram Chander had received plot No. 14s which originally belonged to him on which his own mango trees are situated. Thus the order passed by the Deputy Director of Consolidation appears to be quite just and proper although he had no jurisdiction to review the order. It has been held by a Division Bench of this Court In Parahu v. Deputy Director (1964 A. L. J. 240) that where in a revision the Deputy Director of Consolidation acted in excess of jurisdiction vested in him under Section 48 of the Act but his order was proper, equitable and a just order the High Court should not issue a writ for setting aside such an equitable order. The Supreme Court in Venkateshara Rao v. Government of Andhra Pradesh (A. I. R. 1966 S. C. 828) observed that even tho ugh the order made on 18. 4. 1963 by Government was bad but the High Court was right in refusing to exercise its extra-ordinary discretionary power under Article 226 of the Constitution. In Jagan Singh v. S. T. A. Tribunal (A. I. R. 1980 Raj. J) the Full Bench of the Rajasthan High Court observed that since there had been no failure of justice in the instant case and as such the impugned order cannot be set aside as it would amount to restoring an illegal order passed by R. T. A. In this view of the matter I am of the opinion that although the Deputy Director had no jurisdiction to review the earlier order but since the impugned order dated 6th October 1980 appears to be just and equitable order, I do not think it to be appropriate to interfere with that order in exercise of powers under Article 226 of the Constitution because by setting aside the impugned order the earlier order dated 31st August 1979 passed by the Deputy Director would be restored which, in my opinion, was not just and proper order. By the impugned order the petitioners have been allotted land in front of their house and by the side of their tube-well. No injustice thus appears to have been caused to them in the matter. Opposite party No. 2 has also received plot No. 145 on which his own mango trees are situate. If the earlier order dated 31st August 1979 is restored by setting aside the impugned order, the position would be that both the petitioners and opposite party No. 2 would stand materially prejudiced. The restoration of earlier said order would result in great injus tice to the parties. In fact the Deputy Director has not reviewed the earlier order but he has made the alterations in the chaks in accordance with the earlier order passed by him by making appropriate alteration in the amend ment chart appended to it. The impugned order thus appears to be quite just, proper and equitable order and calls for no interference by this Court in exercise of powers under Article 226 of the Constitution. In the result the writ petition fails and is dismissed. I, however, direct the parties to bear their own costs. The stay order dated 5th February 1981 is vacated. .