Shivshwaroop vs State Of U P And 2 Others
2022 Latest Caselaw 16235 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 52
 

 
Case :- WRIT - B No. - 2873 of 2022
 

 
Petitioner :- Shivshwaroop
 
Respondent :- State Of U P And 2 Others
 
Counsel for Petitioner :- Ajay Singh,Ila Deol
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Ajay Singh, learned counsel for the petitioner and learned standing counsel for respondent Nos.1 to 3.

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 and direct the District Magistrate/Collector, Banda, to comply order dated 20.12.1980, 10.10.1980 passed in Misc. Case No.4594+4596, 3573+4597, 3781 order passed by A.C.O. in Khata No.609, 29, 610, 87, the name of petitioner and Ramsajivan be recorded in the revenue record and to issue a fresh khatauni in the interest of justice, otherwise the applicant/petitioner shall suffer irreparable loss and injury.

II. Issue a writ, order or direction in the nature of Mandamus, commanding and directing the concerned respondent no.2, the District Magistrate/Collector, Banda, to decide the representation dated 6.9.2022 and mutate the name of the petitioner and his ancestor in the revenue record and issue a fresh khatauni in the name of petitioner and heirs."

4. Brief facts of the case are that Village-Pauhar, Tehsail, Pargana-Atarra, District-Banda came under operation of U.P. Consolidation of Holdings Act through notification dated 22.7.1978 under Section-4 of U.P. Consolidation of Holdings Act. In Consolidation Case No.4594+4596, an order dated 10.10.1980 was passed in respect to Khata No.609 and Gata No.2688, measuring area 1.79 hectare, Gata No.2819, measuring area 0.19 hectare, gata no. 2309, measuring area 0.10 hectare and gata no.2688, measuring area 0.40 hectare wherein it was held that in Aadhar Varsh Khatauni the name of Badri Chunbad be deleted and name of Ramshajeevan be recorded. In para No.8 of the writ petition, it is specifically stated that order dated 10.10.1980 has attained finality no appeal or revision has been filed against the order dated 10.10.1980. Similarly, order dated 20.12.1980 and order dated 10.10.1980 have been passed which have attained finality as stated in paragraph nos. 9 to 14 of the writ petition. Copy of Khatauni & C.H. Form 23 have been annexed as Annexure Nos. 1 to 5 to the writ petition. Notification under section 6 (1) of U.P.C.H. Act took place on 3.2.2017 in respect to village in question by which notification under Section 4 of the U.P. C.H. Act, issued / published on 22.07.1978 was cancelled. A government order dated 12.12.2014 has been issued by Consolidation Commissioner U.P. as well as by Secretary, Board of Revenue, 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. Petitioner made efforts even submitted an application / representation before respondent nos. 2 and 3 for the implementation of the orders and recording the name of petitioner 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."

6. He further submitted that respondent no.2 is duty bound to record the name of the petitioner forthwith as notification under Section 6(1) was published long back on 03.02.2017. 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, 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 petitioner 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 22.7.1978 has been cancelled by publication of notification under Section 6 of U.P.C.H. Act on 03.02.2017, 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.

11. 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.

12. In the present matter notification under Section 6 (1) of the U.P.C.H. Act was published on 03.02.2017 and more than 5 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.2-District Magistrate/ Collector, Banda to implement the order dated 10.10.1980 and 20.12.1980 in the revenue record 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 petitioners' disputed land situated in the Village-Pauhar, Pargana and Tahsil- Atarra, 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 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 :- 9.11.2022

C.Prakash