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High Court of Allahabad
K.N. Misra, J.
Raj Narain – Appellant
Versus
Deputy Director of Consolidation – Respondent
Civil Misc. Writ No. 1208 of 1977
Decided On : Sep 30, 1981
CONSOLIDATION OF HOLDINGS ACT, 1953 - SECTION 48(3) - CONVERSION OF CHAK ROAD INTO NALI - JURISDICTION OF DEPUTY DIRECTOR OF CONSOLIDATION - OPPORTUNITY OF HEARING - LEGALITY AND PROPRIETY OF ORDER - WRIT PETITION - MAINTAINABILITY - LOCUS STANDI - NECESSARY PARTIES - GAON SABHA'S RIGHT TO CHALLENGE ORDERS - EASEMENTARY RIGHTS - ABADI LAND - DISTINCTION - CHAK ROAD PROVIDED FOR BENEFIT OF TENURE HOLDERS - ALTERATION IN CHAKS - NOTICE TO AFFECTED TENURE HOLDERS - REGULARITY OF PROCEEDINGS - CORRECTNESS, LEGALITY, AND PROPRIETY OF ORDERS - SCOPE OF JUDICIAL REVIEW - FAMILY PLANNING DRIVE - ASSISTANCE BY INDIVIDUAL TENURE HOLDERS - RELEVANCE IN CONVERSION OF CHAK ROAD INTO NALI.
Fact of the Case:
Petitioners, tenure holders, challenged the orders of the Deputy Director of Consolidation converting a chak road into a nali at the instance of opposite parties who had assisted the consolidation officials in the family planning drive. The petitioners argued that they were not given an opportunity of hearing and that the Deputy Director lacked jurisdiction to make such an order.
Finding of the Court:
The court held that the Deputy Director of Consolidation acted illegally and without jurisdiction in passing the impugned orders. The court found that no objection was filed against the chak road at the relevant stages, that the chak road was provided for the benefit of the tenure holders, and that the conversion of the chak road into a nali would adversely affect the petitioners and other tenure holders. The court also held that the Deputy Director failed to provide an opportunity of hearing to the affected tenure holders and that the conversion of the chak road into a nali was not a ground contemplated under Section 48(3) of the Act.
Issues: 1. Whether the Deputy Director of Consolidation had jurisdiction to convert the chak road into a nali at the instance of opposite parties who had assisted the consolidation officials in the family planning drive? 2. Whether the petitioners were entitled to an opportunity of hearing before the Deputy Director passed the impugned orders? 3. Whether the conversion of the chak road into a nali would adversely affect the petitioners and other tenure holders? 4. Whether the Deputy Director failed to provide an opportunity of hearing to the affected tenure holders? 5. Whether the conversion of the chak road into a nali was a ground contemplated under Section 48(3) of the Act?
Ratio Decidendi: 1. The Deputy Director of Consolidation does not have jurisdiction to convert a chak road into a nali at the instance of individual tenure holders, especially when such conversion would adversely affect other tenure holders. 2. The petitioners were entitled to an opportunity of hearing before the Deputy Director passed the impugned orders. 3. The conversion of the chak road into a nali would adversely affect the petitioners and other tenure holders by depriving them of a passage to their respective chaks. 4. The Deputy Director failed to provide an opportunity of hearing to the affected tenure holders. 5. The conversion of the chak road into a nali was not a ground contemplated under Section 48(3) of the Act, which allows the Deputy Director to review and modify orders passed by subordinate authorities.
Final Decision: The court allowed the writ petition, quashed the impugned orders, and directed the Deputy Director of Consolidation to maintain the chak road.
K.N. Misra, J.
1. THIS petition under Article 226 of the Constitution is directed against the orders dated 12th January, 1977 and 8th July, 1977 passed by the Deputy Director of Consolidation, opposite party no. 1, in proceedings under Section 48, sub-clause (3), of the U. P. C. H. Act, hereinafter referred to as the Act.
2. BRIEFLY stated the facts are that a chak road was provided on plot nos. 525/0. 02, 527/0. 02, 507/0. 8, 509/0. 01 and 502/0. 01. This Chak road was provided in between the chaks of several tenure holders. Towards east of the said chak road the chak of petitioner no. 2, chak holder no. 118, was situated and towards west of it the chak of petitioner no. 1 was situated. The tenure holders were put into possession over their respective allotted chak land in the unit on 3rd March, 1970 and since then they were using the chak road in question for reaching their respective allotted chaks. Petitioners nos. 1 and 2 were also using the said chak road for reaching their chaks and they have been using it for taking their bullocks and bullock-carts etc. from the abadi to their respective chaks. No objection was raised against the carvation of the said chak road in. proceedings under Section 20 of the Act. It appears that opposite parties nos. 2 to 8, who had helped the consolidation officials during the intensive family planning drive by providing some sterilisation cases, applied to the Consolidation Officer on 16th November, 1976 for converting the aforesaid chak road into a nali. The Consolidation Officer called for a report from the Assistant Consolidation Officer vide his order dated 16th November, 1976 and on the same day the Assistant Consolidation Officer submitted his report mentioning therein that the applicants Udit Narain and others have prayed that the chak road which exists on plots nos. 525 etc. be converted into a nali. No further comment was made in the matter as to why the chak road should be converted into a nali and whether it will be appropriate and desirable to convert the said chak road into a nali or not. The report of the Assistant Consolidation Officer is contained in Annexure 2 and from it does not appear that he had heard the petitioners or other tenure holders between whose chaks the said chak road was situated and was used by them as such. The Consolidation Officer on that very day, i.e. 16th November, 1976, submitted the papers to the Settlement Officer (Consolidati6n) for necessary action mentioning therein that approval be accorded for converting the chak road into nali. He also mentioned therein that the applicants had helped in the family planning drive. His report is contained in Annexure 3. He had also not given any notice to the affected tenure-holders nor he had given them any opportunity of hearing. He had also not mentioned as to why the chak road should be converted into a nali. The Deputy Director of Consolidation vide his order dated 12th January, 1977 approved the proposed conversion of chak road into a nali. The petitioners alongwith thirty other tenure-holders filed an application on 15th Feb, 1977 before the Deputy Director of Consolidation for recalling the aforesaid ex-parte order dated 12th January, 1977 and prayed that the case be decided after spot inspection and hearing. This application was signed by the Up Pradhan of the Gaon Sabha and four other members of the Gaon Sabha had also signed it. The Deputy Director of Consolidation vide order dated 8th July, 1977 rejected the said application and maintained the order dated 12th January, 1977. The petitioners have challenged the said orders passed by the Deputy Director of Consolidation in this writ petition.
Learned counsel for the Gaon Sabha, Sri K. B. Garg, raised a preliminary objection regarding the maintainability of the writ petition filed by the petitioners against the impugned orders. He contended that the land in question, which was a chak road, had vested in the Gaon Sabha and as such only the Gaon Sab
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