Shiv Bodhan vs State Of U.P. And 3 Others
2022 Latest Caselaw 5905 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 59
 

 
Case :- WRIT - B No. - 1429 of 2022
 

 
Petitioner :- Shiv Bodhan
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Pramod Kumar Dwivedi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

Heard Mr. Pramod Kumar Dwivedi, learned counsel for the petitioner and learned Standing Counsel for respondent nos.1 to 4.

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.

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

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 28.10.1980 in Case No.3585+3586+4614 and order dated 28.10.1980 in Case No.3372+3373+4151, order dated 09.09.2015 in Case No.399 and order dated 29.08.2008 in Case No.210 passed by the Consolidation Authorities, Banda, District- Banda, under provision 6 (2) of U.P. Consolidation Act and issue the copy of fresh Khatauni of Khata No.620 and Khata No.327 and Chak No.107, 108 of Village- Pauhar, District- Banda.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.3 to consider and decide the representation dated 29.04.2022 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."

Brief facts of the case are that Village- Pauhar Tehsil- Attara, District- Banda came under consolidation operation through notification under Section 4 of the U.P.C.H. Act published on 22.7.1978. During consolidation, plot no.620 was partitioned in the name of ancestor of petitioners in Case No.3585+3586+4614 by consolidation officer by order dated 28.10.1980. In Case No.3372+3373+4151, Assistant Consolidation Officer partitioned plots of Khata No.327 vide order dated 28.10.1980 in the name of ancestor of petitioner. In the proceeding under Section 12 of U.P.C.H. Act, name of petitioner along with his co-sharer was ordered to be recorded in the place of their ancestor in Case No.399 and 210 vide order dated 9.9.2015 and 2.8.2008 in respect to Chak No.107 and 108 respectively. Copy of Khatauni and CH form 23 (1) have been annexed as Annexure Nos.2, 3, 4 and 5 respectively. In paragraph no.9 of the writ petition it is specifically stated that aforementioned orders dated 28.10.1980, 9.9.2015, 29.8.2008 have not been challenged in any Court by any party and the orders have attained finality. In the meantime, notification under Section 6 (1) of U.P.C.H. Act has been published on 3.2.2017 in respect to Village- Pauhar, Tehsil- Attara, District- Banda by which the notification under Section 4 of the U.P.C.H. Act issued / published on 22.7.1978 was cancelled. A Government Order dated 12.12.2014 has been issued by respondent no.2 to the effect that orders which have attained finality before the notification under Section 6 (1) of the U.P.C.H. Act took place, the same must be recorded / implemented in the revenue records. The copy of the Government Order dated 12.12.2014 has been annexed as the Annexure No.6 to the writ petition. Petitioner made efforts to record his name in revenue records on the basis of final order passed before notification under 6 (1) of U.P.C.H. Act as provided under 6 (2) of U.P.C.H. Act but authorities have failed to discharge their statutory duty, hence this writ petition on behalf of petitioner.

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) of the U.P.C.H. Act was published long back on 3.2.2017. 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.

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 i n cases covered by sub-section (2) of Section 52 shall be given effect to by the consolidation authorities, authorised i n 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."

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

There is no dispute about the fact that notification under Section 4 published on 22.7.1978 has been cancelled by publication of notification under Section 6 of U.P.C.H. Act on 3.2.2017, 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.

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.

In the present matter notification under Section 6 (1) of the U.P.C.H. Act was published on 3.2.2017 and more than five years have been passed but authorities are sitting tight over the matter.

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 28.10.1980 passed in the Case No.3585+3586+4614, order dated 28.10.1980 passed in Case No.3372+3373+4151, order dated 09.09.2015 in Case No.399 and order dated 29.08.2008 in Case No.210 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- Pauhar Tehsil- Attara, District- Banda expeditiously preferably within a period of three 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

Rameez