SHRIPATTI Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Heard Mr. Vinod Shankar Tripathi, learned counsel for the petitioner and Mr. Jitendra Narain Rain, learned Additional Chief Standing Counsel for the State-respondents.

(2.) Brief facts of the case are that dispute relates to Khata No. 425 Plot No. 251 area 1.7840 hectares situated at Village-Khajuri-Khurd, Koraon, District-Prayagraj. Petitioner and contesting respondents are co-sharer of the aforementioned plot in question. In the proceeding under Sec. 9 of U.P. Consolidation of Holdings Act, 1953 hereinafter referred to as "U.P.C.H. Act" Assistant Consolidation Officer passed an order dtd. 24/8/2013 dividing share of the parties on the basis of compromise in respect to plot of Khata No. 425. A proceeding under Sec. 42-A of U.P.C.H. Act was initiated at the instance of contesting respondents which was registered as Case No. 58 of 2015-16 before Consolidation Officer. The aforementioned proceedings was concluded on 4/1/2016. Appeal filed by petitioner against the order dtd. 4/1/2016 was dismissed as not maintainable accordingly petitioner filed a revision under Sec. 48 of U.P.C.H. Act which was registered as revision No. 983 before Deputy Director of Consolidation. The aforementioned revision was allowed vide order dtd. 1/11/2017 setting aside the order dtd. 4/1/2016 and 16/9/2016. Contesting respondents challenged the revision order dtd. 1/11/2017 before this Court through Writ B No. 2939 of 2018 which was disposed of by this Court vide order dtd. 20/2/2018 permitting the petitioners of Writ B No. 2939 of 2018 who are contesting respondents in the instant writ petition to challenge the order dtd. 24/8/2013 in accordance with law. In pursuance of the order of this Court dtd. 20/2/2018 contesting respondents filed an appeal under Sec. 11 (1) of U.P.C.H. Act along with the prayer for condonation of delay which was registered as Appeal No. 28 before Settlement Officer of Consolidation. In the aforementioned appeal delay in filing the appeal was condoned as well as Settlement Officer of Consolidation vide order dtd. 8/10/2020 allowed the appeal setting aside the order dtd. 24/8/2013 and remanded the matter back before Consolidation Officer to decide the Case No. 277+840+841 Under Sec. 9 of U.P.C.H. act afresh on merit. Petitioner challenged the order dtd. 8/10/2020 in revision under Sec. 48 of U.P.CH. Act before Deputy Director of Consolidation, which is stated to be pending before Deputy Director of Consolidation. Petitioner also filed Writ-B No. 1123 of 2022 which was disposed of by this Court vide order dtd. 3/8/2022 directing the petitioner to move a fresh representation along with the order dtd. 18/12/2020 which shall be decided within a period of three months. The proceedings under Rule 109-A of U.P.C.H. Rules has been initiated by the petitioner by way of application dtd. 16/8/2022 which was registered as case No. 97111 of 2022-23 with the prayer that illegal construction made by Balkaran and others be removed and possession be delivered to petitioner. Respondent No. 3/Consolidation Officer heard the matter and vide order dtd. 1/3/2024 rejected the application dtd. 25/8/2022 under the impugned order dtd. 1/3/2024, hence this writ petition on behalf of the petitioner for the following relief :

(3.) Learned counsel for the petitioner submitted that impugned order has been passed in arbitrary manner rejecting the petitioners' application under Rule 109-A of U.P.C.H. Rules, as such the same is liable to be set aside. He further submitted that writ petition filed by contesting respondents was disposed of without making any interference against the orders passed in proceeding under Sec. 42-A of U.P.C.H. Act, as such the application filed under Sec. 109-A cannot be rejected by Consolidation Officer. He further submitted that private respondents are raising construction over the plot in question, as such private respondents be restrained from raising construction over the plot in question unless title of the petitioner is negative by the consolidation court. He further submitted that Consolidation Court while passing the impugned order has failed to consider the order dtd. 1/11/2017 passed by Deputy Director of Consolidation in revision No. 983, as such the impugned order is illegal.