Indra Narain Misra vs State Of U.P.Thorugh Its Secy. ...
2023 Latest Caselaw 21886 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:54243
 
Court No. - 18
 

 
Case :- WRIT - B No. - 47 of 2009
 

 
Petitioner :- Indra Narain Misra
 
Respondent :- State Of U.P.Thorugh Its Secy. Revenue Deptt. Civil Sectt.
 
Counsel for Petitioner :- Fareed Ahmad
 
Counsel for Respondent :- C.S.C.,Lalji Yadav,Virendra Prasad
 

 
Hon'ble Saurabh Lavania,J.

Heard.

Present petition has been filed for the following main relief(s):-

"(i) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties no.3 and 4 not to compel the subordinate revenue authorities to prepare new Khatauni on the basis of basic year Khatauni which are destroyed and torn out and illegible.

(ii) Issue a writ, order or direction in the nature of certiorari quashing all the orders passed by opposite party No.2 and 4 for preparation of new Khatauni on the basis of basic year record after summoning the original from their possession.

(iii) To issue a writ, order or direction in the nature of Certiorari quashing the impugned notification No.158/70 dated 21.11.1997 issued in behalf of State Govt. by the Director consolidation under Section 6(1) of the U.P. Consolidation of Holdings Act, (Annexure No.1) after summoning the original of the same from the opposite parties as well as to hold and declare. Said notification to be ultraviras the provisions of Article 14 of the Constitution of India and of Section 6 of the U.P.C.H. Act with Rule 17 of the U.P.C.H. Act 1954.

(iv) To issue a writ, order or direction in the nature of mandamus commanding the opposite parites to refrain from enforcing implementing and give effect to the impugned notification under Section 6 of the U.P.C.H. Act (Anneuxre No.1).

(v) To issue, a writ, order or direction in the nature of Mandamus commanding the opposite parties No.1 to 6 to treat the Village still under the Consolidation operations for the purposes of completing the remaining proceeding which are in the last phase/stage as well as to complete the same in accordance with the consolidation of holdings Act consequent upon the quashing of the impugned notification (Annexure No.1).

(vi) To issue, a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite parties No.1 to 6 not to cender the things and done during the consolidation operations till before coming into force of the notification dated 21.11.1997 under Section 6 of the U.P. Consolidation of Holdings Act will and visit as well as not to change alter the present revenue records entries in the name of the petitioners in pursuance of orders passed by consolidation officer and settlement officer consolidation during the pending of writ petition."

Considering the relief(s), quoted above, this Court is of the view that the relief No.(i) is consequential to relief No.(ii). However, with regard to relief No.(ii) no order has been annexed alongwith the present petition. It is settled principle of law that unless the order, under challenged, is filed and placed on record, the Court could not quash the same. In Surinder Singh vs. Central Government & Ors., AIR 1986 SC 2166, the Hon'ble Apex Court held that the High Court cannot pass an order in such a case in absence of the impugned order being on record.

In so far as relief Nos.(iii), (iv) and (v) are concerned, the law with regard to the same has already been settled by this Court in the following judgment(s) passed (i) Raja Ram Ojha vs. Consolidation Commissioner; reported in MANU/UP/2782/2014, decided on 31.03.2014; (ii) Jasmit Singh vs. State of U.P. and 2 Others; reported in (2016) 04 AHC CK 0064 (iii) Daswant Ram vs. Consolidation Commissioner U.P. And 2 Others; decided on 23.12.2014 (iv) Runup Gramodyog Evam Sewa Sansthan vs. State of U.P. & Ors. reported in MANU/UP/1587/2022, decided on 23.03.2022. To the view of this Court reference to relevant paras of judgment passed in the case of Daswant Ram (Supra) and Runup Gramodyog (Supra) would suffice.

Relevant paras of the judgment passed in the case of Daswant Ram (Supra) are as under:-

"In the first group of cases, the notifications issued under section 6(1) of the U..P. Consolidation of Holdings Act (for short, the Act), cancelling the consolidation operations in the unit are under challenge. This group includes the following writ petitions: WRIT - B Nos. - 11369, 24386, 27643, 28050, 28842, 40719, 41037, 45974, 50816, 51548, 61754 and 67061, all of the year 2014.

In the second group of cases, a mandamus has been sought, commanding the respondents to take an appropriate decision on the representations made by the petitioners therein, seeking cancellation of the consolidation operations. In this group are WRIT -B NOS. 27237, 35709, and 62775, all of 2014.

The third group consists of cases where the representations made by the villagers for canceling the consolidation operations have been rejected. In this group are WRIT -B NOS 27137 of 2010 and 28049 of 2014.

The fourth group consists of cases where recommendations have been made by the consolidation authorities for issuance of notifications under section 6(1) of the Act. These are WP Nos. 42349 and 34567, both of 2014. In these two cases, a writ of mandamus has been sought for enforcing the recommendations made.

In WP No. 26995 of 2014, the recommendation made for issuance of notification under section 6(1) of the Act has been challenged.

Under the circumstances, it would be appropriate to consider the aforementioned categories of cases separately.

In the first group of cases, the argument is that the notifications under section 6(1) are not in consonance with Rule 17 of the Rules framed under the Act. The second contention raised is that the consolidation operations have been largely completed and, therefore, the same should not be canceled. It has also been argued that the notifications, canceling the consolidation operations, can be issued only when the conditions specified in Rule 17 are made.

As far as the argument regarding non-compliance of the conditions enumerated in Rule 17 of the Rules is concerned, it would suffice to state that the conditions enumerated in Rule 17 are only illustrative and not exhaustive as is clear from a bare reading of the rule itself, which provides that "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, ...".

Besides, this submission has already been considered and decided by the judgement passed by me in a bunch of cases, while sitting in Lucknow Bench, wherein the leading case was Writ (Consolidation) No. 535 of 2013: decided on 13.3.2014. By this judgement, relying upon a Division Bench decision reported in 1976 RD 35: Industrial Syndicate Ltd. Versus State of U.P. it has been held that the notifications issued under section 6(1) of the Act are conditional legislation and, therefore, can be challenged only on the grounds available for challenging any piece of legislation. No such ground has been raised in any of these writ petitions, and, therefore, they are liable to be dismissed in view of the earlier decision noted above.

One of the additional submissions made in the Writ Petition No. 28842 of 2014 is that the notification under section 6(1) of the CH Act is cryptic and does not assign any reason; therefore, such an action is not justified in a welfare State and also because the UP Consolidation of Holdings Act is a welfare legislation, enacted to consolidate fragmented holdings of tenure-holders so as to enhance agricultural productivity and to make the agricultural operations more convenient and simpler. In my considered opinion, this ground, though prima facie attractive, cannot be accepted in view of the ratio in the case of Industrial Syndicate Ltd. Vs. State of U.P., reported in 1976 RD 35 wherein it has been held that no reasons are required to be assigned while issuing a notification under section 6(1) of the Act.

The second ground taken is that the notification has been issued by the Director of Consolidation, whose powers are defined under section 3(4) of the Act. The power to issue a notification under section 6(1) is with the State Government. There is no provision under the Act whereby the State Government is authorized to delegate its powers to the Director of Consolidation and, therefore, the impugned notification is without jurisdiction.

A perusal of the impugned notification shows that the powers under section 6(1) of the Act have been delegated by means of a notification issued in the year 1956. This notification, delegating the power to the Director of Consolidation, has been specifically mentioned in the impugned notification, but has not been challenged in the writ petition and, therefore, there is no justification to consider this argument raised on behalf of the petitioner.

In the second category of cases, recommendations for cancelling the notifications under section 4 have been made by the consolidation authorities and such recommendations are sought to be enforced by issuance of a writ of mandamus. The Division Bench decision in the case of Industrial Syndicate Ltd. (supra), has held that notifications under section, especially under sections 4 and 6(1) of the U.P. Consolidation of Holdings Act are conditional legislation, and any direction by a writ court in this regard would amount to directing the legislature to legislate in a particular manner, which is not permissible. For this reason alone, no mandamus can be issued by this Court. Therefore, the writ petitions wherein mandamus has been prayed for are liable to be dismissed.

In the Writ Petition No. 61754 of 2014, the grievance of the petitioner therein is that the consolidation authorities had recommended that the consolidation operations be not cancelled, yet the notification under section 6(1) of the Act was issued. Since the notification has been issued contrary to the recommendation of the local consolidation authorities, the same is liable to be quashed.

As already noticed above, the notification under section 6(1) of the Act is a piece of conditional legislation. It is within the competence of the legislature to legislate in the manner it thinks appropriate. In my opinion, such conditional legislation can be challenged either on the ground of lack of legislative competence or on the ground that it is ultra vires. No such plea has been raised in the writ petition and, therefore, it is liable to be dismissed. For the same reason, this Court is not competent to issue a mandamus directing the State Government to cancel the notifications issued under section 6(1) of the Act, nor directions can be issued to the State Government to issue a notification under section 6(1) and cancel the consolidation operations. Therefore, the relief for mandamus is misconceived and no such mandamus can be issued by this Court.

In the last group of cases, the recommendations made by the consolidation authorities have been challenged. A recommendation, in any case, is a mere recommendation and it is for the authorities concerned to either act in accordance with the recommendations or to take a decision contrary to what has been recommended. The recommendation is, at best, an opinion of the authority concerned keeping in mind the facts and circumstances prevalent in the unit. It is made only to aid the State Government in taking an appropriate decision in the matter and, therefore, in my considered opinion, the same is not open to judicial review. Moreover, in case such a recommendation is interfered with, it would again amount to issuing directions to the State Government to issue a conditional legislation in a particular manner, which, as already observed, the Court is not competent to do.

It would be appropriate to notice the facts and arguments in WP No. 67061 of 2014. In the instant case, it has been argued that the consolidation operations were cancelled on the ground that a part of the land of the unit was covered by a notification under section 3 of the Municipalities Act. It is for this reason that the consolidation operations were cancelled as the same land cannot be subject-matter of notifications both under section 3 of the Municipalities Act and section 4 of the UP CH Act.

Learned counsel for the petitioners does not dispute this position. His submission is that the notification under section 3 of the Municipalities Act pertained to only a part of the land of the unit, and did not pertain to the entire unit. He has, therefore, submitted that the consolidation operations should have been cancelled only with regard to area covered under section 3 of the Municipalities Act and that there is no justification for cancelling the consolidation operations as regards the remaining area. Relying upon Rule 17, learned counsel for the petitioner has submitted that the State Government is empowered to cancel a notification under section 4 of the CH Act either as a whole or as regards a part or parts of the area under such notification.

Sri Sanjai Goswami, learned Addl. Chief Standing Counsel, has, on the contrary, submitted that the notification under section 4 has been cancelled also on account of the fact that a highway divides the village in two parts. As a result thereof, and on account of this highway being an important one, which is a bye-pass known as the Sultanpur-Banaura-Mau-Gorakhpur Bye-pass, the value of the land in the unit has increased considerably and in case the consolidation operations are conducted, it would result in compulsory five percent reduction in the area of each tenureholder, as is mandatory under the Act. This, in turn, will result in a huge financial loss to the tenureholders. He, therefore, submits that the notifications have been issued for cogent reasons and, therefore, should not be interfered with. He has, lastly, submitted that in in any case the State Government is not required to assign any reason for issuing the notifications in view of the law laid down by the Division Bench in the case of the Industrial Syndicate Ltd. (supra).

In rebuttal, learned counsel for the petitioner has submitted that the petitioner is aggrieved because he apprehends that the proceedings that have attained finality during the consolidation operations would also be set at naught by the cancellation of the consolidation operations by the notification under Section 6(1) of the Act.

It, therefore, emerges from the submissions made that the petitioner is aggrieved by the impugned notification only because certain benefits, which have accrued to him during the currency of the consolidation operations and which are alleged to have attained finality, will stand reversed. This apprehension of the petitioner is entirely misconceived because all disputes that have attained finality prior to the cancellation of the consolidation operations stand protected by sub-section (2) of section 6. This writ petition has, therefore, been filed on a misconception of law and on mere apprehension. It, therefore, deserves to be dismissed."

Paras 2 and 3 of the judgment passed in the case of Runup Gramodyog (Supra) are extracted hereinunder:-

"2. The issue is no more res integra having been settled way back by a Division Bench of this Court in Agricultural and Industrial Syndicate Limited Vs. State of U.P. 1976 RD 35.In this case it was held that the notifications issued either under Section 4 of Section 6 of 1953 Act are not in exercise of an executive function but a legislative function. This judgment records as follows:

"As already held, the notifications under Section 4 and 6 of the Act are issued by the State Government in exercise of conditional legislative powers. It cannot be conceivably contended that this Court can issue a mandamus to the legislature to legislate on any subject or to apply any law to any area."

3. Referring toAgricultural and Industrial Syndicate Limited case (supra)and Hon'ble Supreme Court's judgment inHarbhajan SinghVs.State of Himachal Pradesh(2010) 13 SCC 555, another Division Bench of this Court inDalip Singh andothers Vs.Vikram Singh andothers 2015 (5) AWC 4427, observed:

"5. The provisions of Sections 4 and 6 of the Act came up for consideration before a Division Bench of this Court in Agricultural & Industrial Syndicate Ltd. (supra). The Division Bench held that when the Director of Consolidation issues a notification under Section 4 or Section 6, he performs neither a quasi judicial function nor does he exercise an administrative power. In the view of the Division Bench, the power was of a Legislative nature. Moreover, it was held that if a notification is issued under Section 6, the land holder has no rights which are affected in consequence of such a notification. The Supreme Court in the judgment in Harbhajan Singh (supra) while considering a similar provision contained in Section 16(1) of the Consolidation Act in the State of Himachal Pradesh held as follows :

"It is, thus, clear that it is only when the persons entitled to possession of holdings under the Act have been delivered possession of the holdings that they acquire rights, title and interest in the new holding allotted to them and the consolidation scheme in the area is deemed to have come into force. Till such possession of the allotted land under the consolidation scheme is delivered to the allottees and the consolidation scheme is deemed to come into force, the State Government has the power under Section 16(1) of the Act to cancel the declaration under Section 14(1) of the Act."

The Supreme Court also held as follows:

"We have already held that the State Government can issue a notification under Section 16(1) of the Act cancelling the declaration under Section 14(1) of the Act in respect of any area at any time before the persons entitled to possession of holdings under the Act have entered into possession of the holdings allotted to them. Since, before the persons enter into possession of the holdings allotted to them, they do not acquire any right, title and interest in the holdings allotted to them and they do not lose in any manner their rights, title and interest in their original holdings, their rights are not affected by the issuance of a notification under Section 16(1) of the Act. In other words, a notification under Section 16(1) of the Act issued by the State Government before delivery of possession of the allotted holdings to persons has no civil consequences and, therefore, the State Government is not required to follow the principles of natural justice before issuing such a notification."

6. The principle of law which has been laid down in the judgment of the Division Bench and in the judgment of the Supreme Court is that before persons have entered into possession of the holdings allotted to them, they do not acquire any right, title or interest and they would not lose their rights by the issuance of a notification under Section 6 of the Act. That is the position in law. The writ petition challenging the notification under Section 6 of the Act was not maintainable since there were no rights enuring to the benefit of the original petitioners which were taken away or affected by a notification under Section 6 of the Act."

Taking note of law settled in the judgment(s), referred above and the grounds taken in the present petition, this Court is of the view that the petitioner is not entitled to relief Nos.(iii), (iv) and (v).

In so far as relief No.(vi) is concerned, Sub-section 2 of Section 6 of the U.P. Consolidation of Holdings Act, 1953 (in short "Act of 1953") itself provides that where a notification has been cancelled in respect of any unit under sub-section (1), such area shall, subject to the final order 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. Section 6 of the Act of 1953, on reproduction, reads as under:-

"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 order 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."

Considering the above quoted provision as also taking note of judgment passed in the case of Daswant Ram (Supra) and Consolidation No.5237 of 2017 (Rajendra Prasad Dixit & Others vs. State of U.P. & Others); reported in 2018 (139) RD 322, it is apparent that the final order, if any, passed prior to issuance of notice under Section 6 of the Act of 1953 which has attained finality has been protected. However, the petitioner has not assailed any order before this Court based upon sub-section 2 of Section 6 of the Act of 1953, as such, this Court is not inclined to entertain the present petition for the relief No.6. However, it is expected from the authority concerned that the order passed prior of issuance of notification would be considered in the light of sub-section 2 of Section 6 of the Act of 1953.

For the reasons aforesaid, this Court is not inclined to entertain the present petition. Accordingly, the matter is consigned to record.

Order Date :- 16.8.2023

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