M.H. Beg, J. - (1.) THE Petitioner, Bindeshwari, who died during the pendency of the writ petition and is now represented by his sons, was a small chak -holder No. 117 to whom an allotment had been made by the Consolidation Officer Under Section 21 of the UP Consolidation of Holdings Act (hereinafter referred to as 'the Act'). He as well as certain other allottees were dissatisfied with the allotments made. The Petitioner filed an appeal Under Section 22(2) of the Act with regard to the exclusion of plots Nos. 240 to 242, which had been allotted to chak holder No. 122, Rajbali, opposite party No. 2. The Petitioner's appeal was allowed on the ground that the Petitioner's house and "charans" were situated in those plots. The Settlement Officer (Consolidation) thought that there was considerable force in the Petitioner's claim?. Contesting opposite party, Rajbali, then went up in revision to the Dy. Director of Consolidation who allowed his revision Under Section 48 of the Act on 19 -9 -1963 after observing that the khasra of the village showed that there was nothing belonging to the Petitioner on the plots in question. The Dy. Director also observed that if there was anything of the Petitioner on the plots, the Petitioner, in whose favour there wan no entry in the khasra, must be a trespasser and he must remove his trespass. Among the reasons given by the Dy. Director for allowing the revision was that the Settlement Officer had not inspected the spot. Nevertheless, the Dy. Director did not state that he had himself inspected the spot. On the other hand, his order shows that he had based his decision on the entries in the khasra and the village map. Therefore, if the inspection of the site was necessary, as it seemed to be to the Dy. Director, he too ought to have inspected the site and recorded that his conclusion was the result of the site inspection. His conclusion was that a portion of plots Nos. 241 and 242 had to be allotted to the contesting opposite party No. 2 in order to give the opposite party access to the village. If this was the only case in which some modification to the disadvantage of the Petitioner had been made, it may have been possible to urge that there was no necessity for interference Under Article 226 of the Constitution. This brings me to another case in which also an order was passed by the Dy. Director on 19 -9 -1963.
(2.) ONE Lutu, opposite party No. 4, was also one of the objectors with regard to the allotment of plot No. 297 to the Petitioner. His objection had been dismissed by the Consolidation Officer and the Settlement Officer (Consolidation). The Dy. Director, however, interfered with the allotment to chak -holder No 117 on the ground that this chak -holder had originally a much smaller valuation of land near the village than Lutu, chak holder No. 113, who had 54.416 units which had been reduced to 33.542 units whereas the allotment to chak -holder No. 117 of land near the village had increased ii valuation from 4.928 to 16.022 units. This appeared to the Dy. Director to be a sufficient reason for taking away and of plot No. 297 and to allot a fourth chak to the Petitioner, the whole object being to increase the area near the village allotted to Lutu. The Dy. Director stated that he was doing so notwithstanding that it would result in giving four chaks to the Petitioner. The Petitioner has alleged, in para 5 of his petition, that he is a small tenure holder compared with Lutu. The correctness of assertions made in this paragraph is not denied in the counter affidavit filed on behalf of Lutu. I am unable to see why the mere fact that a large tenure holder, who had more land of greater valuation near the village as compared to a small tenure holder, who is bound to have a smaller valuation of land whether near or away from the village, must always be given the land of the same value as he had originally near the village, even if the underlying principle of consolidation laid down in Section 19(2)(c) has to be sacrificed to this consideration or desire of a chak holder to have as much land as possible near the village. Section 19(i)(e) lays down the requirement: Every tenure -holder is as far as possible, allotted a compact area at the place where he holds the largest part of his holding. This requirement is followed by a proviso: Provided that no tenure holder should be allotted more chaks than three, except with the approval in writing of the Deputy Director Consolidation. This provision clearly means that compactness of the area is the primary consideration. Indeed, this is the whole object of consolidation under the Act. In carrying out this object of compactness, the largest part of the holding of a tenure holder should be located "as far as possible" where the largest part of his holding originally lay. In other words, the second requirement of location has to be linked up with compactness. The proviso clearly shows that the principle that no tenure holder should be given more than three chaks must prevail over the requirement mentioned earlier unless there is an approval in writing given by the Deputy Director. This implies that the approval will be given only in exceptional cases. The writing must, therefore, indicate why a case is exceptional so as to condone violation of the prohibition.
(3.) THE Deputy Director did not state why the allotment to a tenure holder, who is apparently a small tenure holder as compared with others, must be split up into four chaks so as to violate the first and more basic principle. The Deputy Director has merely stated that no other adjustment is possible. But, he has given no facts or reasons to justify such a conclusion. All that the Dy. Director says is that the Petitioner's chak had to be split up into four chaks so that a chak holder who had a large area near the village originally should have an allotment which also satisfied such a condition. In other words, the first condition or prohibition against splitting up chaks into four, which had to be given precedence over the previously mentioned requirement so as to carry out the purposes of the Act, was to be subordinated to the requirement about location for no other reason than that the requirement about location was there. This is a plain and obvious reversal of the order of importance statutory requirements without the exceptional reasons which could justify a change of the order of relative importance of requirements of a consolidation scheme. The first mentioned is not necessarily the first in legal importance. Moreover, compactness is mentioned even before the requirement about location if the mere order in which conditions, which may involve a conflict in application, occur has any significance. The proviso merely clarifies and specifies the limits within which the primary and basic principle of compactness could be sacrificed in the interests of a far location of plots.;