Roshan vs State Of U.P. And 3 Others
2022 Latest Caselaw 5904 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						       Court No. 59
 

 
				         WRIT - B No. - 1446 of 2022
 

 
Petitioner :- 			Roshan
 
Respondent :- 			State of U.P. & Others
 
Counsel for Petitioner:- 	Pramod Kumar Dwivedi
 
Counsel for Respondent :- 	C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Sri Pramod Kumar Dwivedi, learned counsel for the petitioner and the learned standing counsel for the State.

1. Learned counsel for the petitioner is permitted to correct the the array of party in respect of respondent no.3 during course of the day.

2. With the consent of the parties the writ petition is being heard and decided finally at the admission stage.

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

(i) Issue a writ, order or direction in the nature of mandamus directing the respondent nos.3 and 4 to make an entry and correct the recent revenue record in respect of order dated 17.12.1977 in Case No.12381, order dated 10.7.1977 in Case No.7309+7310, order dated 27.12.1977 in Case No.11468, order dated 25.1.1985 in Case No.360 and order dated 18.9.1984 in Case No.833 passed by Consolidation Authorities, Banda, under the provision 6 (2) of U.P. Consolidation Act and issue the copy of fresh Khatauni of Gata No.2838, 1790, 1936 and Chak No.1393 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 20.1.2021 submitted by petitioner before the District Magistrate, Banda.

(iii) Issue any 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, Tahsil- Attara, District Banda came under consolidation operation through notification under Section 4 of the U.P. C.H. Act, published on 5.5.1972. During consolidation operation, Consolidation Officer passed an order dated 17.12.1977 in Case No.12381 and partitioned Plot No.2838 in the name of ancestor of the petitioner. Petitioner inherited the property in dispute as legal heir of deceased. The aforementioned order dated 17.12.1977 has attained finality. In case no.7309+7310, an order dated 10.7.1977 was passed by Asst. Consolidation Officer in respect to Plot No.1790 which has attained finality. An order dated 27.12.1977 was passed by Consolidation Officer in Case No.11468 in respect to Plot No.1936 which has attained finality. An order dated 25.1.1985 in Case No.360 under Section 12 of the U.P. C.H. Act was passed by Asst. Consolidation Officer in respect to Plot No.1936 and name of petitioner was ordered to be recorded in the revenue records, the order dated 25.1.1985 has attained finality. An order dated 18.9.1984 was passed by Asst. Consolidation Officer in Case No.833 for deletion of the name of petitioner's ancestor and recording the name of petitioner in respect to Chak No.1355, the order dated 8.9.1984 has attained finality. Copy of Khatauni and C.H. Form 23(1) have been annexed as Annexure No.2 to 6 respectively. In paragraph No.10 of the writ petition, it is specifically stated that aforementioned orders dated 17.12.1977, 10.7.1977, 27.12.1977, 25.1.1985 & 19.9.1984 passed in respective cases by the Consolidation authorities have not been challenged in any court by any party and the said orders have become final. In the meantime, notification under Section 6(1) of the U.P. C.H. Act has been published on 7.6.2016 in respect to village - Oran, Tahsil- Atarra, District Banda by which notification under Section 4 of the U.P. C.H. Act, issued / published on 5.5.1972 was cancelled. Copy of notification dated 7.6.2016 has been annexed as Annexure No.1 to the Writ Petition. A government order dated 12.12.2014 has been issued by respondent no.2 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. Copy of government order dated 12.12.2014 has been annexed as Annexure No.7 to the Writ Petition. Petitioners made efforts even submitted an application / representation before respondent no.3 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 petitioner.

5. Petitioner 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 petitioner 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.

He further submitted that respondent no.3 is duty bound to record the name of the petitioner forthwith as notification under Section 6(1) was published long back on 7.6.2016. Learned counsel for the petitioner 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 as well as 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.

6. On the other hand, learned Standing Counsel submitted that petitioner has 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, authorised 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 i n sub-rule (1) i t 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.

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."

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

8. There is no dispute about the fact that notification under Section 4 published on 5.5.1972 has been cancelled by publication of notification under Section 6 of U.P.C.H. Act on 7.6.2016, 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.

9. The argument advanced by learned Standing Counsel that petitioner 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.

10. In the present matter notification under Section 6 (1) of the U.P.C.H. Act was published on 7.6.2016 and more than six years have been passed but authorities are sitting tight over the matter.

11. 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 i.e. to ensure compliance of the order dated 17.12.1977 passed in Case No.12381, order dated 10.7.1977 passed in Case No.7309+7310, order dated 27.12.1977 passed in Case No.11468, order dated 25.1.1985 passed in Case No.360 and order dated 18.9.1984 passed in Case No.833, in the light of the provision contained under Section 6 (2) of the U.P.C.H. Act and issue fresh Khatauni with respect to the petitioner's disputed land situated in the Village- Oran, District- Banda expeditiously, 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 if it has been 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.

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

Order Date :- 5.7.2022

C.Prakash

(Chandra Kumar Rai, J.)