HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Chief Justice's Court Case :- SPECIAL APPEAL DEFECTIVE No. - 421 of 2015 Appellant :- Dalip Singh And 3 Others Respondent :- Vikram Singh And 6 Others Counsel for Appellant :- N.B. Nigam Counsel for Respondent :- C.S.C.,Rakesh Kumar Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Yashwant Varma,J.
The appellants are in appeal against a judgment and order of the learned Single Judge dated 27 April 2015. The appellants claim to be tenure holders of Village Hanspur, Gutaiyaj Natthapur, Tehsil Puwaya, District Shahjahanpur. The village was placed under consolidation and a notification was issued under Section 4 of the U.P. Consolidation of Holdings Act, 19531 on 5 August 1972. The first, second and third respondents, who are the original petitioners, moved an application before the Consolidation Officer, Shahjahanpur in 2011-12 nearly forty years after the commencement of consolidation proceedings in 1972 and nearly thirty two years after the framing of a preliminary consolidation scheme in 1980. The Consolidation Officer by an order dated 28 July 2012 rejected the application. Appeals were filed against the order of the Consolidation Officer. The Settlement Officer (Consolidation) by an order dated 12 November 2012 remanded the proceedings back to the Consolidation Officer for disposal afresh. On 9 July 2013, a notification was issued by the Consolidation Commissioner under Section 6(1) of the Act cancelling the notification under Section 4 of the Act. The first, second and third respondents filed a writ petition seeking to challenge the legality of the notification dated 9 July 2013 and also seeking a mandamus to the consolidation authorities to conclude the consolidation proceedings expeditiously. The appellants, who are tenure holders, were not parties to the proceedings. The writ petition was allowed by a learned Single Judge by a judgment and order dated 27 April 2015 in the following terms:
"The writ petition has been filed for quashing the notification dated 09.07.2013 by which consolidation operation has been closed in village Hanspur, Gutaiyaj Natthapur, tehsil Puwaya, District Shahjahanpur. Impugned notification does not contain any reason as such the counter affidavit has been called for. In the counter affidavit it has been stated that in spite of efforts made by the consolidation authority they could not be able to demarcate the chak as well as deliver possession, although more than 40 years have passed, as such the notification under section 6 was issued.
The reason given in the counter affidavit shows that there was dereliction in discharge of statutory duties. If consolidation authorities could not demarcate the Chaks and deliver possession over it, then it can not be a ground for quashing the consolidation proceeding.
In the result, the writ petition is succeeded and is allowed. The notification dated 09.07.2013 issued by Consolidation Commissioner, U.P. is quashed.
District Deputy Director of Consolidation, Shahjahanpur is directed to ensure the demarcation of the chaks and delivery of possession by deputing necessary police force in the villages upto June, 2015."
The submission which has been urged on behalf of the appellants is that it is a well settled principle of law that an order passed under Section 6(1) of the Act cancelling a notification under Section 4 of the Act does not affect the rights of any individual and has no civil consequences, since before persons enter into possession of the holdings allotted to them, they do not acquire any right, title or interest nor do they lose any of the rights, title or interest in their original holdings. Hence, it has been held by the Supreme Court that such an order is not even required to be preceded by an opportunity of being heard. Reliance was placed on the judgment of the Supreme Court in Harbhajan Singh Vs. State of Himachal Pradesh2 where similar provisions of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 were considered. A similar view was taken in an earlier decision of a Division Bench of this Court in Agricultural & Industrial Syndicate Ltd. Vs. State of U.P.3 On the other hand, it was sought to be urged on behalf of the first, second and third respondents that there was no lawful justification for the issuance of a notification under Section 6 of the Act cancelling the earlier notification under Section 4 of the Act and, as the learned Single Judge observed, there was a dereliction of duty on the part of the consolidation authorities in completing the consolidation operations. In view thereof, the learned Single Judge has it is urged, correctly issued the impugned direction.
Section 4 of the Act empowers the State Government, where it is of the opinion that a district or part thereof may be brought under consolidation operations, to make a declaration to that effect through a gazette notification. Thereupon, it is lawful for any officer or authority empowered by the District Deputy Director of Consolidation, inter alia, to enter upon and survey the land within such areas; and to do all acts, if necessary, to ascertain the suitability of the area for consolidation operations. Section 6 of the Act empowers the State Government to cancel at any time a notification made under Section 4 of the Act in respect of the whole or any part of the area specified therein. The consequence of the issuance of a notification under sub-section 1 is provided in sub-section 2.
The provisions of Sections 4 and 6 of the Act came up for consideration before a Division Bench of this Court in Agricultural & Industrial Syndicate Ltd. (supra). The Division Bench held that when the Director of Consolidation issues a notification under Section 4 or Section 6, he performs neither a quasi judicial function nor does he exercise an administrative power. In the view of the Division Bench, the power was of a legislative nature. Moreover, it was held that if a notification is issued under Section 6, the land holder has no rights which are affected in consequence of such a notification. The Supreme Court in the judgment in Harbhajan Singh (supra) while considering a similar provision contained in Section 16(1) of the Consolidation Act in the State of Himachal Pradesh held as follows:-
"It is, thus, clear that it is only when the persons entitled to possession of holdings under the Act have been delivered possession of the holdings that they acquire rights, title and interest in the new holding allotted to them and the consolidation scheme in the area is deemed to have come into force. Till such possession of the allotted land under the consolidation scheme is delivered to the allottees and the consolidation scheme is deemed to come into force, the State Government has the power under Section 16(1) of the Act to cancel the declaration under Section 14(1) of the Act."
The Supreme Court also held as follows:
"We have already held that the State Government can issue a notification under Section 16(1) of the Act cancelling the declaration under Section 14(1) of the Act in respect of any area at any time before the persons entitled to possession of holdings under the Act have entered into possession of the holdings allotted to them. Since before the persons enter into possession of the holdings allotted to them, they do not acquire any right, title and interest in the holdings allotted to them and they do not lose in any manner their rights, title and interest in their original holdings, their rights are not affected by the issuance of a notification under Section 16(1) of the Act. In other words, a notification under Section 16(1) of the Act issued by the State Government before delivery of possession of the allotted holdings to persons has no civil consequences and, therefore, the State Government is not required to follow the principles of natural justice before issuing such a notification."
The principle of law which has been laid down in the judgment of the Division Bench and in the judgment of the Supreme Court is that before persons have entered into possession of the holdings allotted to them, they do not acquire any right, title or interest and they would not lose their rights by the issuance of a notification under Section 6 of the Act. That is the position in law. The writ petition challenging the notification under Section 6 of the Act was not maintainable since there were no rights enuring to the benefit of the original petitioners which were taken away or affected by a notification under Section 6 of the Act.
A counter affidavit was filed in the proceedings before the learned Single Judge by the Consolidation Officer stating that after the notification was issued under Section 4A(2) of the Act on 30 May 1970 for launching consolidation operations, the consolidation authorities made several attempts to complete the work of demarcation and delivery of possession of chaks but the rival groups in the village seriously opposed the work of demarcation. There was an apprehension of a breach of peace in the village, as a result of which it became impossible to start and complete the work at the stage of Section 24 of the Act. The village was notified in 1970 and though more than 40 years had elapsed, the village consolidation scheme could not be implemented. In these compelling circumstances, the District Deputy Director of Consolidation directed the District Consolidation Authority to submit a report on whether a consolidation scheme in the village could be completed or not. Pursuant thereto, the Settlement Officer (Consolidation) and the Consolidation Officer visited the village. In the course of the enquiry, it was found that during the pendency of certain writ petitions before this Court, stay orders had been passed and there was serious local opposition to the work of demarcation. Despite the passage of nearly forty years, the villagers were still in possession of their original holdings and almost all the villagers were in favour of the issuance of a notification under Section 6 of the Act. The Settlement Officer (Consolidation) reported the matter to the District Deputy Director of Consolidation who, in turn, forwarded it to the Consolidation Commissioner for appropriate action. It was on this basis that a decision was taken to cancel the notification under Section 4 of the Act since it was found that there was no need to effect a change, the villagers being in possession of their plots for almost forty years.
The submission which has been urged on behalf of the appellants has a clear basis in the law which has been laid down in the judgment of the Supreme Court as well as in the judgment of the Division Bench of this Court noted above. The issuance of a notification under Section 6 of the Act cannot be regarded as arbitrary having due regard to the facts and circumstances of the case noted above. No rights enuring to the benefit of the first, second and third respondents stood affected by the issuance of a notification under Section 6 of the Act. Hence, the order of the learned Single Judge quashing the notification was clearly not warranted. The learned Single Judge, in fact, issued a further direction to the consolidation authorities to ensure the demarcation of chaks and the delivery of possession with the assistance of police force. These directions have caused serious prejudice to the appellants who are not parties to the proceedings and would be directly affected by such directions.
For these reasons, we hold that the impugned judgment and order dated 27 April 2015 is unsustainable. The special appeal is accordingly allowed by setting aside the judgment and order of the learned Single Judge dated 27 April 2015. The writ petition filed by the first, second and third respondents shall, in consequence, stand dismissed. There shall be no order as to costs.
Order Date :- 7.7.2015 VMA (Dr. D.Y. Chandrachud, C.J.) (Yashwant Varma, J.) Chief Justice's Court Civil Misc. Permission Application No.190986 of 2015 In re :
Case :- SPECIAL APPEAL DEFECTIVE No. - 421 of 2015 Appellant :- Dalip Singh And 3 Others Respondent :- Vikram Singh And 6 Others Counsel for Appellant :- N.B. Nigam Counsel for Respondent :- C.S.C.,Rakesh Kumar Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Yashwant Varma,J.
Leave is granted to appeal to the appellants to appeal against the judgment and order of the learned Single Judge dated 27 April 2015. The appellants would be directly affected by the impugned judgment and order of the learned Single Judge quashing the notification under Section 6 of the U.P. Consolidation of Holdings Act, 1953 and directing the demarcation of chaks and delivery of possession.
Order Date :- 7.7.2015 VMA (Dr. D.Y. Chandrachud, C.J.) (Yashwant Varma, J.)