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1999 Supreme(All) 245
IN THE HIGH COURT OF ALLAHABAD
Shitla Prasad Srivastava, J.
RAM ROOP - Appellant
Versus
DEPUTY DIRECTOR OF CONSOLIDATION, GHAZIPUR - Respondents
C. M. W. P. 38421 Of 1998
Decided On : 02/24/1999
S.K.Varma, SIDDHARTH VERMA
The Settlement Officer, Consolidation has the authority to grant permission for the construction of a permanent structure on the holding, subject to the condition that the land will not be allotted to any other tenure-holder in the chak allotment proceeding.
Headnote:
CONSOLIDATION OF HOLDINGS ACT - SECTION 5 (1) (C) - INTERPRETATION - PERMISSION FOR CHANGE OF LAND USE - SCOPE AND PROCEDURE - REVISION OF ORDER - JURISDICTION OF DY. DIRECTOR OF CONSOLIDATION.
Fact of the Case:
Petitioner challenged the order of the Dy. Director of Consolidation allowing revision of the order of the Settlement Officer, Consolidation granting permission to the respondents to construct a house on a plot of land subject to consolidation proceedings.
Finding of the Court:
1. Section 5 (1) (c) of the Consolidation of Holdings Act permits tenure-holders to use their holdings for purposes other than agriculture, horticulture, or animal husbandry with the prior written permission of the Settlement Officer, Consolidation. 2. The Act does not specify any procedure for granting such permission or require the impleading of any person as a party to the proceedings. 3. The definition of "land" in the Act includes the site of a house or other similar structure, indicating that a change in land use may include the construction of a permanent structure. 4. The Settlement Officer, Consolidation has the authority to grant permission for the construction of a permanent structure on the holding, subject to the condition that the land will not be allotted to any other tenure-holder in the chak allotment proceeding. 5. The Settlement Officer, Consolidation does not have the authority to review or suspend the permission granted under Section 5 (1) (c) of the Act. 6. The order passed by the Settlement Officer, Consolidation suspending the permission was a final order, and revision was maintainable before the Dy. Director of Consolidation. 7. The Dy. Director of Consolidation, as a superior authority, had the jurisdiction to exercise the powers of the Settlement Officer, Consolidation under Section 5 (1) (c) of the Act.
Issues: 1. Whether the Settlement Officer, Consolidation has the authority to grant permission for the construction of a permanent structure on the holding? 2. Whether the Settlement Officer, Consolidation has the authority to review or suspend the permission granted under Section 5 (1) (c) of the Act? 3. Whether the order passed by the Settlement Officer, Consolidation suspending the permission was a final order, and revision was maintainable before the Dy. Director of Consolidation? 4. Whether the Dy. Director of Consolidation had the jurisdiction to exercise the powers of the Settlement Officer, Consolidation under Section 5 (1) (c) of the Act?
Ratio Decidendi: 1. The purpose of the permission under Section 5 (1) (c) of the Act is to ensure that the land for which the change of land use has been granted will not be given to any other tenure-holder in the allotment of chak proceeding. 2. The restriction under the Consolidation of Holdings Act is only that the tenure-holder should obtain permission from the Settlement Officer, Consolidation, and it does not restrict the construction of a permanent nature. 3. The Settlement Officer, Consolidation does not have the authority to review or suspend the permission granted under Section 5 (1) (c) of the Act, as the Act does not provide for any such proceeding. 4. The order passed by the Settlement Officer, Consolidation suspending the permission was a final order, as it closed the chapter and was deemed to have rejected the application. 5. The Dy. Director of Consolidation, as a superior authority, had the jurisdiction to exercise the powers of the Settlement Officer, Consolidation under Section 5 (1) (c) of the Act, as provided under Section 44A of the Act.
Final Decision: The petition challenging the order of the Dy. Director of Consolidation allowing revision of the order of the Settlement Officer, Consolidation granting permission to the respondents to construct a house on a plot of land subject to consolidation proceedings was dismissed.
SHITLA PRASAD SRIVASTAVA, J.
( 1 ) THIS petition under Article 226 of the Constitution or India has been filed by the petitioner for quashing the order dated 12. 11. 1998 passed by the Dy. Director of Consolidation.
( 2 ) AT the time of admission. Sri M. A. Khan, Advocate has appeared to oppose the stay and admission both. A supplementary affidavit has also been filed by the petitioner.
( 3 ) HEARD learned counsel for the parties at the admission stage. The brief facts as stated in the petition are that plot No. 1456 of village Bogana, Pargana Pachotar. District Ghazipur, was the subject-matter of the consolidation proceeding. It is stated by the petitioner that there are 8 divisions of the aforesaid plot. It appears that an application under Section 5 (1) (c) of the U. P. Consolidation of Holdings Act was filed by the respondents before the Settlement Officer. Consolidation. Ghazipur, seeking permission to construct a house. On this application, report was called for by the S. O. C. from the Consolidation Officer and the Assistant Consolidation officer. They submitted report. On 12. 3. 1996 the Settlement Officer. Consolidation gave permission for construction of house on the aforesaid plot. The petitioner filed an objection against the order dated 12. 3. 1996. The respondent also filed objection against the aforesaid application. The Consolidation Officer rejected the application of the respondents for construction of house vide order dated 10. 4. 1996. A revision was filed by the respondents against this order. The Dy. Director of Consolidation allowed the revision on 12. 11. 1998. This order has been challenged by the petitioner in this writ petition.
( 4 ) IT is argued by the learned counsel for the petitioner that the order of the S. O. C. is administrative in nature and no revision was maintainable before the D. D. C. and the jurisdiction under Section 5 (1) (c) of U. P. Consolidation of Holdings Act could be exercised when it was admitted to the parties that the part of the land on which the construction was sought to be made was of the applicant who applied for permission. It is Further submitted that unless the land was converted to abadi under Section 143 of U. P. Zamindari Abolition and Land Reforms Act, no building could be constructed and, further that the D. D. C. had no jurisdiction to give permission. It was only the S. O. C. who could grant the permission. Certain new grounds have been mentioned by way of filing a supplementary affidavit which is also to the same extent as mentioned above.
( 5 ) AN objection was raised on behalf of the contesting respondents who had applied for permission that the petitioner has no right to oppose the application for permission under Section 5 (1) (c) nor has any right to file the present petition. His further submission is that once the permission was granted by the S. O. C. , he has no authority to recall his order and review the same on the objection filed by a person who has no concern with the plot in question. As the order passed by the S. O. C. was without jurisdiction, therefore, the revision was maintainable and the D. D. C. has the same right as the subordinate authority had and the order passed by him does not suffer either from any error of jurisdiction or there is any error apparent on the face of the record. Sri S. K. Varma, in reply has submitted that even if the petitioner, has no title in respect of the plot for which the application was filed, the petitioner has a legitimate expectation that at the time of carvation of chak this plot can come to him, but if its nature was converted from agriculture to abadi and then construction is allowed, then it will not be given to the petitioner. Therefore, on the principle of legitimate expectation, the petitioner has right to object the permission granted to the contesting respondents under Section 5 (1) (c) and the S. O. C. has power to recall the same. For this purpose he has placed reliance on JT 1993 (3) SC 15. He
