Dismissed

Molhad Singh v. D.d.c and Ors.

Uttarakhand HC24 Jul 2017WPMS/700/2006

Case brief

AI extract

What is this about?

The High Court dismissed the petitioner's writ challenge to orders declining recall of an appellate decision and dismissing a revision petition in consolidation proceedings. The Court held the petitioner receives chaks on original holdings (Gata No. 206), fulfilling statutory mandates without prejudice. Previous finding by revisional court regarding spot inspection is accepted.

What did the court decide?

The writ petition was dismissed as the petitioner is holding chaks on original holdings and no grievance remains.

Molhad Singh Vs D.d.c and Ors. — Specific Performance | Uttarakhand HC (2017)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition (M/S) No. 700 of 2006

Molhad Singh

...….……Petitioner

Versus

Deputy Director of Consolidation & Ors. ………. Respondents

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Present: Mr. Tapan Singh, Advocate for the petitioner. Mr. Pankaj Purohit, Deputy Advocate General for the State. Mr. M.S. Tyagi, Advocate for the private respondents no. 3 to 5.

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Hon’ble Sharad Kumar Sharma, J. (Oral)

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The petitioner claims that he has two original holdings i.e. on gata no. 207 and on gata no. 206M. Gata No. 207 was a groove land and it was excluded from Consolidation proceedings and CH8 was issued. After the initiation of proceedings under Section 21, an objection was preferred by the respondents under Section 21(1) before Consolidation Officer, registered as Case No. 1345 which was rejected by Consolidation Officer by its order dated 03.10.2003, against which the respondents have preferred an appeal being Appeal No. 664 of 2003 which has been decided by the Assistant Settlement Consolidation Officer by an order dated 27.04.2004 which has been allowed. Against the said order dated 27.04.2004, petitioner filed a recall application, seeking recall of the order dated 27.04.2004, and to restore the appeal. This recall was registered on 28.09.2004. Petitioner being against the order dated 27.04.2004 allowing appeal of respondent rejecting recall dated 28.09.2004, preferred revision which was numbered as Revision no. 429/2004-05 which has been dismissed by the Deputy Director of Consolidation by the order dated 17.05.2006.

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It is these two orders passed by the Assistant Consolidation Officer on 27.04.2004 as well as the order of the Settlement Officer, Consolidation rejecting the restoration on 28.09.2004 and the Revisional Court order dated 17.05.2006 has been questioned by the petitioner before this Court.

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It is an admitted case of the petitioner that he had two original holdings, one on gata no. 207 and another on gata no. 206. He, during the consolidation proceedings had been able to get gata no. 207, excluded from the consolidation proceedings on the ground that there exists a groove. However, since the said exclusion is not an issue, this Court is refraining from making any observation as far as the said exclusion is concerned by issuance of CH8.

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The case of the respondent nos. 3, 4 and 5 before the court below was that they are the chak holders of 71 and they raised a cause before the Consolidation Officer by filing an objection contending that the proposed chaks allotted to them is scattered at two places, would be resulting into dividing their plots into two parts and consequently allocation of two plots which would be posing difficulty in taken into account to their cultivation activities and is contrary to mandate of under Section 19 of Consolidation of Holdings Act.

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However, their objection was rejected vide order dated 03.10.2003. The respondent preferred an appeal under Section 21(2) which has been decided by the Assistant Settlement Consolidation Officer on 27.04.2004. The

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Consolidation Officer, while deciding the appeal, after hearing of the parties had considered the case of the rival parties and came to the conclusion that by making alterations as given in the talika the right of the petitioner would not be effected for the reason that on the basis of the settlement of chaks, he has been allotted chaks on his original holdings, as the same would be apparent from the talika annexed, which constitutes the part of the appellate order dated 27.04.2004 in which he has been allocated with gata no. 206 which is his original holdings which constitutes the major part and even the area of chak allotted has been increased.

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The contention of the petitioner in the writ petition is that the order passed by the Consolidation Officer was without compliance with the provisions contained under sub Section (3) of Section 21 i.e. for holding the spot inspection. In response thereto the contention of the learned counsel for the respondent is that as far as holding of spot inspection is concerned, the said issue is no more open for him to argue. The reason being that before the appellate court, he being the respondent in appeal had not filed any application praying for holding upon a spot inspection and as such he faced an appellate proceedings without raising such plea, now he is estopped from raising the issue.

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On perusal of the talika apparently major segment of the holding of the tenure holder i.e. petitioner has been allocated on gata No. 206 which goes to be in consonance to the provisions of Section 19, Consolidation Scheme of the Consolidation of Holdings Act. Against this order of the

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appellate authority, a restoration was preferred though it was legally not maintainable in view of Full Bench judgment as no power of review or recall is vested with Consolidation authorities because the order of Assistant Settlement Officer, Consolidation was on merits, but however the same was also rejected. The matter traveled to the proceedings under Section 48 by the Revision filed by the petitioner and the Revisional Court too after taking into consideration the fact that the chak allotted by the Assistant Settlement Officer, Consolidation to the petitioner happens to be on his original holding, hence he cannot said to be prejudiced and the allotment of chaks are not contrary to the Consolidation Scheme as given on original holdings of petitioner as Gata No. 206/1, 206/2 and 206/3.

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Further, the finding which has been recorded by the Deputy Director of Consolidation in the Revision, it has also come up in the decision dated 17.05.2006 was proceeded by the respondent inspection which was conducted by the Deputy Director of Consolidation himself in the presence of the parties and thus as a matter of fact, the grudge of the petitioner that the court below have proceeded without holding the spot inspection stands stud avenged.

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In the proceedings under Section 21, the basic purpose of it is to ensure that the largest holding of a tenure holder is provided on his original holder. It is not in dispute between the parties that the co-tenure holder and gata no. 206 is their original holdings out of which major segment of the holding allotted to the petitioner since retains in it original

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allotting the gata no. 206 which has been held by both the courts, this Court feels that no grievance is left with the petitioner now because he is holding chaks on original holdings and thus the writ petition fails and is dismissed.

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(Sharad Kumar Sharma, J.) 24.07.2017

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Mahinder/

Molhad Singh v. D.d.c and Ors.

Case brief

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Molhad Singh v. D.d.c and Ors.

Case brief

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