Chaturbhuj And Others vs State Of U.P. And Others
2012 Latest Caselaw 4101 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 18
 

 
Case :- WRIT - B No. - 46389 of 2012
 

 
Petitioner :- Chaturbhuj And Others
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Preet Pal Singh Rathore
 
Respondent Counsel :- C.S.C.,Mahesh Narain Singh
 

 
Hon'ble Ran Vijai Singh,J.

This writ petition has been filed with the following prayers:

"1. issue a writ order or direction in the nature of certiorari call for record and quashing the entire consolidation proceedings of the Gram Panchayat Dhharaul, Tehsil Chandausi, District Sambhal.

2. issue a writ order or direction in the nature of mandamus directing the respondents for not to make interfere in the peaceful possession of the respective land of the petitioners in pursuance of present consolidation proceedings.

3. issue a writ order or direction in the nature of mandamus directing the respondent no. 2 to decide the representation dated 21.7.2012 (annexure no. 1) of the petitioner immediately within some specific time.

4. issue a writ order or direction in the nature of mandamus directing the respondents to restart the consolidation operation proceedings afresh in the Village Panchayat of the petitioners in respect of Kabza Parivardhan and in view of the preparation of Aakar Patra - 5 and 23 in respect of village Dhharaul, Tehsil Chandausi, District Sambhal.

5. issue a writ order or direction in the nature of mandamus directing the respondents to serve the copy of notification U/s 4 of Consolidation of Holdings Act in respect of the village of the petitioners immediately within some specific time.

6. issue a writ order or direction in the nature of mandamus directing the respondent nos. 1 and 2 to take necessary penal action against the respondents consolidation authorities in accordance with law, for their faults and irregularities committed in the consolidation proceedings in the village of the petitioners.

7. issue any other writ order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

8. To award the cost of the petition to the petitioners."

Heard Sri Preet Pal Singh Rathore, learned counsel for the petitioners, Sri M.N. Singh, learned counsel for the Gaon Sabha and learned Standing Counsel appearing for the State - respondents.

This writ petition appears to have been filed by 26 petitioners with the allegations that more than 300 tenure holders, out of 500 tenure holders, of Village Dhharaul, Pargana and Tehsil Chandausi, District Bhim Nagar are aggrieved by the continuance of the consolidation proceedings and pray for quashing of the same.

It is contended that amongst the aggrieved tenure holders, the members of the consolidation committee have also signed the representation, which has been made to the Divisional Comissioner, Moradabad Division, Moradabad. The allegations are that the notification under section 4 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'the Act') was issued in the year 2005 and at present, the proceedings with regard to the carving of chak is going on. In the submissions of Sri Rathore, the consolidation authorities are committing irregularities, like allotment of chak over the ponds and they are also not following the procedure of U.P. Road Side Control Act.

A preliminary objection has been raised by the learned Standing Counsel stating therein that for redressal of petitioners' grievance, neither the Divisional Commissioner nor the Deputy Director of Consolidation is competent. In his submissions, the petitioners have efficacious remedy under section 6 of the Act read with Rule 17 of the U.P. Consolidation of Holdings Rules, 1954 (hereinafter referred to as, 'the Rules') and in case the petitioners are aggrieved, they may approach to the State Government / competent authority to whom such power has been delegated, for redressal of their grievance.

In the submissions of Sri Rathore, the entire consolidation proceedings should be quashed for the various irregularities committed by the consolidation authorities. In support of his submissions, he has placed reliance upon the judgments of this Court in the cases of Smt. Saroj Sharma Vs. State of U.P. and Others, 2004 (96) RD 454 and Harpal Singh and Others Vs. State of U.P. and Others, 2006 (101) RD 792.

I have heard learned counsel for the petitioners and learned Standing Counsel. For appreciating the controversy, the provisions contained under section 6 of the Act and Rule 17 of the Rules are reproduced hereinunder:

"6. Cancellation of notification under Section 4. (1) It shall be lawful for the State Government at any time to cancel the notification made under Section 4 in respect of the whole or any part of the area specified therein.

(2) Where a notification has been cancelled in respect of any unit under sub-section (1), such area shall, subject to the final orders relating to the correction of land records, if any, passed on or before the date of such cancellation, cease to be under consolidation operations with effect from the date of cancellation.

Rule 17. Section 6. The notification made under Section 4 of the Act, may among other reasons, be cancelled in respect of whole or any part of the area on one or more of the following grounds, viz, that -

(a) the area is under a development scheme of such a nature as when completed would render the consolidation operations inequitable to a section of the peasantry;

(b) the holdings of the village are already consolidated for one reason or the other and the tenure - holders are generally satisfied with the present position;

(c) the village is so torn up by party factions as to render proper consolidation proceedings in the village very difficult; and

(d) that a co-operative society has been formed for carrying out cultivation in the area after pooling all the land of the area for this purpose."

From the perusal of section 6 of the Act read with Rule 17 of the Rules, it transpires that the power of cancellation of the notification under section 4 of the Act is vested with the State Government under section 6 of the Act and the grounds for cancellation are mentioned in Rule 17 of the Rules. The petitioners herein, it appears, have done no spade work and the writ petition has been filed on the bald allegations without there being any concrete detail with regard to the irregularities in the consolidation proceedings. Therefore, the cases cited by the petitioners in the cases of Smt. Saroj Sharma and Harpal Singh (supra) are of no avail. In the case of Harpal Singh (supra), it appears, the notification was issued in the year 1960 and the writ petition was filed in the year 2006, almost 46 years after the date of notification, and this Court has interfered and quashed section 4 notification on the ground that during these long years, valuation of the land has gone much higher and that aspect has to be considered. So far as in the case of Smt. Saroj Sharma (supra) is concerned, the facts of that case are also different from the facts of this case. Otherwise also, sitting under Article 226 of the Constitution of India, this Court is not supposed to enter into the factual controversy and investigate the fact and record any finding over that, particularly, in the circumstances when the efficacious remedy is available under the Act and Rules.

The Apex court in numerous cases has observed that where alternative remedy is available the court must move on very slow pace in entertaining the writ petition under Article 226 of the Constitution of India. In Rashid Ahmed Vs. Municipal Board Kairana AIR 1950 Supreme Court 163, the Apex Court held that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid Case namely K.S. Rashid and Son Vs. Income Tax Investigation Commission AIR 1954 S.C. 207 where the Supreme Court reiterated the proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to entertain in a petition under Article 226 of the Constitution of India. This proposition was again considered by a Constitution Bench of the Apex Court in A.V.Venkateswaran, Collector of Customs Vs. Ramchand Sobhraj Wadhwani AIR 1961 Supreme court 1506 and another Constitution Bench decision in Calcutta Discount Co. Ltd. Vs. ITO, Companies Distt. AIR 1961 Supreme court 372.

In Whirlpool Corporation Vs. Registrar of Trade Marks 1998 (8) SCC the Apex court although held that the High Court should have entertained the writ petition instead of throwing the person to avail the alternative remedy but in that case the order passed by the authority concerned was without jurisdiction and therefore the Apex Court had taken the view that if the order was without jurisdiction, the writ petition should have been entertained instead of throwing it at threshold. In this case, the competent authority has yet not been approached for redressal of their grievance. This Court is already overburdened, therefore, in view of the availability of the efficacious alternative remedy, I refuse to exercise the discretion under Article 226 of the Constitution of India by entertaining this writ petition.

In view of that, I am not inclined to interfere in this matter. No relief, as prayed for, can be granted under Article 226 of the Constitution of India. The writ petition is disposed of with the liberty to the petitioners to file a detailed representation with careful spade work giving details of the irregularities before the State Government / competent authorities to whom such power has been conferred, for redressal of their grievance alongwith certified copy of the order of this Court. In case such representation is made, that may be considered and decided on its own merit in accordance with law.

Order Date :- 12.9.2012

Amit Mishra