ASHA RAM MISRA Vs. JOINT DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) By means of this petition filed under Article 226 of the Constitution of India, the petitioners have challenged the order dated 4.8.1983 passed by the Deputy Director of Consolidation, in exercise of power under Section 48(3) of the U.P. Consolidation of Holdings Act (for short "the Act'), remanding the proceedings back to the Consolidation Officer.

(2.) The facts are that after finalisation of proceedings under Section 9 as well as Section 20 of the Act an application was moved by opposite party no.2 that he has not been provided "chak nali' for irrigation of plot nos. 257 & 259 included in his chak from his tubewell installed over his second chak no. 413 and as such he may be provided the same through plot no. 256. The Settlement Officer Consolidation vide order dated 1.1.1983 directed the Consolidation Officer to submit a report after making an inquiry and to send a proposal in case "chak nali' has not been provided. The Consolidation Officer vide order dated 7.1.1983 called for a report from the Assistant Consolidation Officer, who in his turn, called for a report from the Consolidator. Accordingly, the Consolidator submitted a report dated 14.1.1983 that no "chak nali' has been provided for irrigation from the tubewell existing in plot no. 413 and accordingly, the same may be provided which will affect the petitioner nos. 1 & 2. The Assistant Consolidation Officer forwarded the report to the Consolidation Officer on 14.2.1983. When the reference reached the Settlement Officer Consolidation he found that reports are ex-parte and as such he directed the Consolidation Officer to submit a fresh report after hearing the parties. The Consolidation Officer after hearing only the petitioner nos. 1 & 2 recorded that they have not given consent to the proposed "nali' and directed the parties to appear before the Settlement Officer Consolidation on 24.4.1983. The Settlement Officer Consolidation without hearing the parties forwarded his recommendation on 3.5.1983 to the Deputy Director of Consolidation for accepting the reference. The Deputy Director of Consolidation vide order dated 7.6.1983 accepted the reference ex-parte without any notice or opportunity of hearing to the petitioners. The petitioners thereafter, moved an application for recalling the said order.

(3.) The case set up by petitioner nos. 1 & 2 was that plot no. 256/2 is chak out and the same belong to all the petitioners and they have their "pucca house' & "pucca madaha' and 6 ft. high boundary wall standing on the land through which the "chak nali' is being proposed. The Deputy Director of Consolidation vide impugned order dated 4.8.1983 recalled the earlier order dated 7.6.1983 and remanded the case back to Consolidation Officer to submit a fresh report after hearing the parties and after making a spot inspection himself to ascertain whether the proposed "nali' is being carved out on the area of plot no. 256/2 which is chak out or from the area of the plot which is included in consolidation operation. The impugned order of remand has been challenged by the petitioners mainly on the ground that no "nali' can be provided for the benefit of an individual tenure-holder from the chak out land of the petitioners or even from the "bachat' land as such the entire exercise is futile and there was no justification to remand the case back and the Deputy Director of Consolidation ought to have rejected the reference. Reliance in support of the contention has been placed on the decision of a learned Single Judge in the case of Sri Ram Maharaj Dubey vs. Joint Director of Consolidation, 1982 RD 350. It has also been urged that all the petitioners are co-tenure holders and the reports have been submitted ex-parte without hearing all of them and their pucca construction standing on the land in dispute through which "nali' is proposed is liable to be demolished.