- (1.) HEARD Sri S.C. Verma, learned counsel for the petitioners and Sri Mohan Yadav for the respondent no. 6 and the learned Standing Counsel and the learned counsel for the Gaon Sabha as well.
(2.) THE petitioners have come up challenging the order passed by the Settlement Officer Consolidation dated 4.8.2011 and the order of the Deputy Director of Consolidation dated 14.11.2011 whereby the order of the Consolidation Officer dated 16.10.2009 setting apart Plot No. 6 and 16 partly from consolidation operations has been set aside. The petitioners contend that the order of the Consolidation Officer was justified keeping in view the status of the land which is besides the road and which the petitioners are entitled to retain in terms of the Circular dated 26.5.1981 brought on record as Annexure-4 to the writ petition. The main thrust of the argument of Sri S.C. Verma is that even if an adjudication has taken place in relation to chak allotments and no objections had been filed, then too it is obligatory on the part of the Consolidation Authorities to restore the land of a tenure holder by allotment if it is situate by the roadside. He contends that the land claimed by the petitioners which they were entitled to retain in their holding was situate by the roadside and as such the petitioners had a remedy of approaching the Consolidation Officer which is not barred by any provision of the U.P. Consolidation of Holdings Act, 1953. In sum and substance the argument is that the rights and duties which flow from the Circular dated 26.5.1981 can be enforced at any stage.
(3.) HE further contends that the notification under Section 52 has not yet been published and the petitioners came to know of the said defect at the time of delivery of possession in the year 2008, therefore, there was absolutely no delay in filing of the objection nor does this exercise amount to any review of the earlier proceedings undertaken in relation to allotment. Reliance has been placed on a Full Bench decision of this court in the case of Smt. Mewati Devi Vs. D.D.C. Gorakhpur & others, reported in 1987 RD Pg. 186 to contend that these proceedings can go on simultaneously and there is absolutely no bar which can prevent a tenure holder from raising such a plea at this stage. He therefore submits that the order of the Consolidation Officer dated 16.10.2009 setting apart the disputed holding from consolidation operations does not suffer from any infirmity. The Consolidation Officer also condoned the delay under Section 5 in filing of the objection and he further held that the view taken by him is in consonance with the directions of the Consolidation Commissioner and the Circular dated 26.5.1981 relied on by the petitioners.;