Nathunee and ors. Vs. Deputy Director of Consolidation and anr. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - 5. it is not to be repeated again and again that in the allotment of chak proceedings, both parties can never be satisfied. unless the claim of both parties is accepted they cannot claim to be satisfied. every chak holder wants best quality of land near abadi, minimum number of chaks, near roadside etc. needless to say that if the grievance of the parties is in respect to enhancement/reduction of area, increase in number of chaks and no allotment of chak on largest part of holding and near source of irrigation or any other ground of like nature then truth and correctness in rival claim has to be examined looking into ch form 23 and if required by-making spot inspection. it is not to be reminded that in the villages there are small number of persons who are having big holding and better source of agriculture which consists of modern techniques in various respects. , particular portion of land is of good quality and is adjacent to abadi. needless to say that decision by revisional court will be his independent exercise being uninfluenced by any observation or finding so recorded by the lower courts as the revisional court is the last court of fact, empowered to deal with the matter on the question of facts and law as well.s.k. singh, j.1. challenge in this petition is the order of deputy director of consolidation dated 9.1.2004 by which revision filed by the opposite party has been allowed and necessary changes has been made in the chaks of the parties.2. as the pleadings are complete, on the request of learned counsel for the parties, matter has been heard and is being finally decided.3. in the light of the submission as advanced by learned counsel for the parties, the court has dealt with the matter.4. proceedings are under section 20 of u.p.c.h. act which is in respect to allotment of land/plot in the respective chaks of the chak holders.5. it is not to be repeated again and again that in the allotment of chak proceedings, both parties can never be satisfied. unless the claim of both parties is accepted they cannot claim to be satisfied. this may not be possible rather, it is impossible. every chak holder wants best quality of land near abadi, minimum number of chaks, near roadside etc. and thus both sides cannot be adjusted in the light of their claim. in fact in the allotment of chak proceedings, no party suffers in terms of either reduction of area or valuation as certain amount of variation is permitted under section 19 of u.p.c.h. act. in these proceedings, parties are to be allotted compact chak as the land possessed by them are spread at various places and therefore, concern of the consolidation authorities has to be to consolidate the land of the tenure holders which is spread and to allot minimum number of chaks considering it to be more practicable, keeping in mind the agricultural facilities, i.e., source of irrigation etc. needless to say that if the grievance of the parties is in respect to enhancement/reduction of area, increase in number of chaks and no allotment of chak on largest part of holding and near source of irrigation or any other ground of like nature then truth and correctness in rival claim has to be examined looking into ch form 23 and if required by-making spot inspection. changes as made in these proceedings are barred from fresh scrutiny in view of section 49 of u.p.c.h. act. thus, it is for the court to test the claim of parties on the aforesaid frame. besides norms as provided in section 19 of u.p.c.h. act, the court has to balance equity between parties. a chak holder may be having small holding and other may be a big tenure holder. the courts will have to give practical and human approach to the matter. it is not to be reminded that in the villages there are small number of persons who are having big holding and better source of agriculture which consists of modern techniques in various respects. the majority consists of holders of small land and therefore, if they are not allowed chaks considering their convenience that will cause great hardship to them for which, there cannot be any cure after close of consolidation process. in view of aforesaid, this court need not issue any strict guideline or cannot lay down a particular procedure /process to handle the situation but of course, this can be observed that it has to be the concern of all the consolidation authorities right from the stage of assistant consolidation officer up to the deputy director of consolidation to keep in mind equitable aspect and comparative hardship besides the norms as provided in section 19 of u.p.c.h. act as that is to reflect on the future growth of a family. in the past also this court has opined for giving consideration to the allotment of chak matters in the aforesaid manner but now again time has come to give caution to all the consolidation authorities not to pass orders in these proceedings, without application of mind, without assigning any proper reason and without considering comparative hardship if is to be faced by the parties on a particular change as that will not be in accordance with the spirit of this process for which, law is made.6. so far case in hand is concerned, on the submission of learned counsel, pleading and the judgments as placed on record, it appears that consolidation officer made adjustment after making spot inspection, as stated in his order, (although there is a dispute from the side of respondents mainly for the reasons that the order of the consolidation officer is said to be without any notice/opportunity to them). be as it may, the matter went to the revisional court at the instance of present opposite party, on confirmation of the order of consolidation officer, by appellate authority. learned counsel for the respondents submits that prayer for spot inspection was made on behalf of revisionist for adjusting the chafes. admittedly, the order of revisional court do not indicate that he has made spot inspection. on a perusal of the judgment of the deputy director of consolidation, it appears that after hearing counsel for parties and on perusal of records, he proceeded to record findings in respect to factual aspects, i.e., particular portion of land is of good quality and is adjacent to abadi. the finding recorded by the deputy director of consolidation is under serious challenge from the side of petitioners. the claim of rival parties is dependent on acceptance/rejection of their contention about position of the spot and therefore, this court cannot be in a position to record any finding by accepting/rejecting the claim of either of the party. in view of aforesaid, and keeping in mind the request which is said to have been made by the revisionist and as the consolidation officer has referred to spot inspection it appears that it was obligatory on the part of revisional court to have made spot inspection to record finding in respect to spot situation, for the purpose of accepting/repelling claim of either of the parties. although making of spot inspection by revisional court in each and every case, in allotment of chak proceedings may not be said to be mandatory but, in view of the observation as made above, specially in respect to the cases where equity has to be balanced, in the light or the spot situation and specially when lower authorities have decided the claim of the parties after making spot inspection, it will be mandatory for the revisional court to make spot inspection while upsetting the arrangement made by the court below. in respect to various factual aspects as pleaded by the petitioner in his objection before the consolidation officer and as stated before this court, it appears to be in the ends of justice that revisional court may be called upon to make spot inspection, keeping in mind the stand of the respondents and then decide the matter after giving adequate opportunity of hearing to the parties, in accordance with law. needless to say that decision by revisional court will be his independent exercise being uninfluenced by any observation or finding so recorded by the lower courts as the revisional court is the last court of fact, empowered to deal with the matter on the question of facts and law as well. thus, it is for the revisional court now to take up the matter pursuant to the command of this court and to decide the claim of parties as observed above, without allowing any unwarranted adjournment to them unless it is required for very compelling reason, preferably within a period of four months from the date of receipt of a certified copy of this order from either of the parties, it is made clear that this court has not expressed any opinion either way in relation to the merits of claim of the parties.7. for the reasons recorded above, this petition succeeds and is allowed. the impugned judgment of the deputy director of consolidation dated 9.1.2002 (annexure-4) to the writ petition is hereby quashed and the matter is remitted back to the concerned revisional court to do the needful, in the light of the observation as made above.