Kunj Bihari vs State Of U.P. And 4 Others
2022 Latest Caselaw 22675 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- WRIT - B No. - 3617 of 2022
 

 
Petitioner :- Kunj Bihari
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Pramod Kumar Dwivedi
 
Counsel for Respondent :- C.S.C.,Achal Singh
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Pramod Kumar Dwivedi, learned counsel for the petitioners, learned standing counsel for respondent Nos.1 to 4 and Mr. Achal Singh, Counsel for respondent No.5-Gram Sabha.

2. With the consent of the learned counsel for the parties, writ petition is being disposed of finally without calling counter affidavit.

3.The instant writ petition has been filed by the petitioners for following reliefs:-

"(i) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent Nos. 3 and 4 make entries and correct the recent revenue record in the respect of order dated 21.11.1977 in case No.12028, order dated 24.04.2000 in case No.288, order dated 20.04.1991 in Case No.26 and order dated 30.04.1991 in case No.27 passed by Consolidation authority of Village Oran District-Banda U/s 6 (2) of U.P.C.H. Act and authority concerned may also be directed to issue the copy of the fresh Khatauni of the aforesaid orders of village Oran District Banda to the petitioner.

(ii) Issue a writ, order or direction in the nature of Mandamus directing the respondent No.3 to consider and decide the representation dated 12.10.2022 submitted by petitioner before the District Magistrate, Banda.

(iii) 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.

(iv) award the cost of the Writ Petition."

4. Brief facts of the case are that village-Oran, Tehsil-Atarra, District-Banda came under operation of U.P. Consolidation of Holdings Act through notification dated 5.05.1972 under Section-4 of U.P. Consolidation of Holdings Act. In paragraph Nos.5, 6 7 and 8 of the writ petition, the specific averment has been made that Assistant Consolidation Officer has passed order dated 21.11.1977 in case No.12028, order dated 24.04.2000 in case No.288, order dated 30.04.1991 in case No.26 and order dated 30.04.1991 in case No. 27 for recording the name of petitioner in respect of plot in dispute as mentioned in the writ petition. In paragraph No.9 of the Writ Petition specific averment has been made that aforementioned orders dated 21.11.1977, 24.04.2000, 30.04.1991 have not been challenged in any competent court by any party and the same have become final but the revenue authority are not issuing fresh khatauni. Notification under section 6 (1) of U.P.C.H. Act took place on 7.06.2016 in respect to village in question by which notification under Section 4 of the U.P. C.H. Act, issued/ published on 5.05.1972 was cancelled. A government order dated 12.12.2014 has been issued by Consolidation Commissioner U.P. to the effect that orders which have attained finality before notification under Section 6(1) took place, the same must be recorded / implemented in the revenue records. Petitioners made efforts even submitted an application / representation before respondents for the implementation of the orders and recording the name of petitioners in the revenue records in compliance of the orders which have attained finality before notification under Section 6(1) of the U.P. C.H. Act took place but authorities are sitting tight over the matter, hence this writ petition on behalf of the petitioners.

5. Petitioners submitted that in view of the publication of notification under Section 6 (1) of U.P.C.H. the final order passed in favour of petitioners be incorporated / implemented in the revenue records as provided under Section 6 (2) of the U.P.C.H. Act. For the ready reference Section 6 of U.P.C.H. Act is as follows:

"6. Cancellation of notification under Section 4 - (1) It shall be lawful for the State Government at any time to cancel the 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 the cancellation."

6. He further submitted that respondent no.3 is duty bound to record the name of the petitioners forthwith as notification under Section 6(1) was published long back on 7.06.2016. Learned counsel for the petitioners placed reliance upon the judgment of this Court in the Case of Ram Deo and Another Vs. State of U.P. and 2 Others delivered on 29.9.2021 in Writ- B No.1895 of 2021, in the Case of Desh Raj and Another Vs. State of U.P. and 3 Others delivered on 8.10.2021 in Writ- B No.1719 of 2021, Writ-B No.1426 of 2021 delivered on 09.09.2021, Writ-B No.31217 of 2016 delivered on 13.07.2016 as well as in the case of Roshan Vs. State of U.P. and others delivered on 05.07.2022 in Writ-B No.1446 of 2022.

7. On the other hand, learned Standing Counsel submitted that petitioners have remedy to file application under Rule 109 A of U.P.C.H. Rules and placed reliance upon Rule 109 A, which is as follows:

"109A. Section 52(2). - (1) Orders passed in cases covered by sub-section (2) of Section 52 shall be given effect to by the consolidation authorities, authorized in this behalf under sub-section (2) of Section 42. In case there be no such authority the Assistant Collector, incharge of the sub-division, the Tahsildar, the Naib-T ahsildar, the Supervisor kanungo, and the Lekhpal of the area to which the case relates shall, respectively, perform the functions and discharge the duties of the Settlement Officer, Consolidation, Consolidation Officer, the Assistant Consolidation Officer, the Consolidator and the Consolidation Lekhpal respectively for the purpose of giving effect to the orders aforesaid.

(2) If for the purpose of giving effect to any order referred to in sub-rule (1) it becomes necessary to reallocate affected chaks, necessary orders may be passed by the Consolidation Officer, or the Tahsildar, as the case may be, after affording proper opportunity of hearing to the parties concerned.

(3) Any person aggrieved by the order of the Consolidation Officer, or the Tahsildar, as the case may be, may, within 15 days of the order passed under sub-rule (2), file an appeal before the Settlement Officer, Consolidation, or the Assistant Collector incharge of the sub-division, as the case may be, who shall decide the appeal after affording reasonable opportunity of being heard to the parties concerned, which shall be final.

(4) In case delivery of possession becomes necessary as a result of orders passed under sub-rule (2) or sub-rule (3), as the case may be, the provisions of Rules 55 and 56 shall, mutatis mutandis , be followed."

8. Perusal of Section 52 (2) of the U.P.C.H. Act will also be necessary which is as follows:

"52(2) Notwithstanding anything contained in sub-section (1), any order passed by a Court of competent jurisdiction in cases of writs filed under the provisions of the Constitution of India, or in cases of proceedings pending under this Act on the date of issue of the notification under sub-section (1), shall be given effect to by such authorities, as may be prescribed and the consolidation operation shall, for that purpose, be deemed to have not been closed."

9. I have considered the submissions advanced by learned counsels for the parties and perused the records.

10. There is no dispute about the fact that notification under Section 4 published on 5.05.1972 has been cancelled by publication of notification under Section 6 of U.P.C.H. Act on 5.05.1972, as such, the final orders passed before publication of notification under Section 6 (1) of U.P.C.H.Act are to be incorporated / implemented in the revenue records as provided under Section 6 (2) of the U.P.C.H. Act.

11. The argument advanced by learned Standing Counsel that petitioners should avail remedy under Rule 109 A of U.P.C.H. Rules is misconceived. The perusal of Rule 109 A of U.P.C.H. Rules and Section 52 (2) of the U.P.C.H. Act as quoted above fully demonstrate that Rule 109 A of U.P.C.H. Rules will apply for the cases covered under Section 52 (2) of U.P.C.H. Act. In respect to the matters where notification under Section 6 (1) of the U.P.C.H. Act has been published, the consequences of the Section 6 (2) of the U.P.C.H. Act will apply and authorities are duty bound to follow the same forthwith.

12. In the present matter notification under Section 6 (1) of the U.P.C.H. Act was published on 7.06.2016 and more than six years have been passed but authorities are sitting tight over the matter.

13. Considering the entire facts and circumstances of the case as well as the ratio of law laid down by this Court in Ram Deo (supra), the present writ petition is allowed directing the respondent No.3.District Magistrate/ District Deputy Director Consolidation Banda to implement the order dated 21.11.1977 in case No.12028, order dated 24.04.2000 in case No.288, order dated 30.04.1991 in case No.26 and order dated 30.04.1991 in case No.27 passed by Consolidation authority of Village Oran, District Banda under Section 6 (2) of the U.P.C.H. Act and issue the copy of fresh Khatauni of the aforesaid orders of village-Oran, Tehsil-Attara, District-Banda to the petitioner, preferably within a period of two months from the date of production of certified copy of this order before him. Respondents shall have liberty to file recall application before this Court if it is found that order which are to be implemented have not attained finality before publication of notification under Section 6 (1) of U.P.C.H. Act.

14. The writ petition stands allowed. No order as to the costs.

Order Date :- 23.12.2022

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