Allahabad High Court
Praveen Yadav vs State Of Up And 3 Others on 1 August, 2024
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:123561
Court No. - 49
Case :- WRIT - B No. - 1693 of 2024
Petitioner :- Praveen Yadav
Respondent :- State Of Up And 3 Others
Counsel for Petitioner :- Aklank Kumar Jain
Counsel for Respondent :- C.S.C.
Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for the petitioner and the learned standing counsel for the State respondents no.1 to 4.
2. The petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India assailing the order dated 22.7.2024 passed by the Consolidation Commissioner (respondent no.2) whereby representation moved on his behalf beseeching issuance of notification under Section 6(1) of U.P. Consolidation of Holdings Act, 1953 (in brevity 'UPCH Act') to cancel the consolidation operation has been rejected.
3. Having considered the submissions advanced by learned counsel for the petitioner as well as learned standing counsel and perusal of record, it is manifested that the village in question i.e. Gram Bhandri, Tehsil Sirsaganj, District Firozabad, is second time notified for Consolidation operation in the year 2009 and the consolidation operation is still going on in the village. The previous consolidation operation was completed in the year 1964. It is case of the petitioner that most of the villagers are in favour of cancelling the consolidation operation, therefore, a representation was moved before the authorities concern to cancel the notification under Section 4 A (2) of the UPCH Act by virtue of promulgation of a notification under Section 6(1) of UPCH Act. Having found delay in deciding the said representation, the petitioner has approached before this Hon'ble Court by filing Writ B No.2564 of 2019, beseeching a direction commanding the consolidation authorities to issue a notification under Section 6(1) of UPCH Act. A Coordinate Bench of this court, vide order dated 26.11.2019, has disposed of the aforesaid writ petition with a direction that the representation dated 30.9.2019 pending before the Consolidation Commissioner shall be decided in accordance with law within a period of four months from the date of presentation of the certified copy of the order. In pursuance of the order dated 26.11.2019, the petitioner has approached before the learned Consolidation Commissioner and submitted a representation alongwith a certified copy of the order dated 26.11.2019, which was received in the office of the Consolidation Commissioner on 10.12.2019. Having been received the order passed by this court, the learned Consolidation Commissioner has issued a direction to the authorities concerned to submit report qua grievance of the petitioner as mentioned in the representation dated 30.9.2019. The District Magistrate/District Deputy Director of Consolidation has submitted his report dated 12.2.2020 alongwith the report dated 7.2.2020 submitted by Settlement Officer of Consolidation. In his representation dated 30.9.2019, the petitioner came with the plea that majority of villagers are satisfied with the previous consolidation operation which was finalised in the year 1964 and all facilities viz. drainage lane, chak road, pasture land, school, hospital and abadi site are available, therefore, a second round consolidation operation is not required. It is further averred in the application that the consolidation authorities are unnecessarily harassing the villagers by disturbing the valuation and area of plots which is causing harassment and oppression to the villagers. There are groupism in the village pertaining to carrying out the consolidation operation and there are sufficient grounds available for the cancellation of the consolidation operation as enunciated under Rule 17 of the UP Consolidation of Holdings Rules. It has also been emphasised in the representation that more than 70% of the villagers are in favour of cancelling the consolidation operation.
4. In his report dated 12.2.2020, the District Magistrate has unequivocally mentioned that the notification under Section 20 of the UPCH Act has been promulgated on 8.2.2019 after fulfilling all the formalities as required for the chak allotment proceedings. The consolidation operation is going on as per the rules and with the consent accorded by the Consolidation Committee and the villagers. The provisions for chak marg, harizan abadi, general abadi and manure pit etc. have been made while carrying out the consolidation operation. In case of any discrepancies in the area or valuation of the plots, the same would be corrected on the objections being received from the chak holders concerned. A meeting of the villagers has been convened to determine as to whether the consolidation operation should be carried out or not. Out of 500 villagers/farmers, 108 have cast their votes in favour of carrying out the consolidation operation, whereas 141 have voted against the consolidation operation, however, remaining have not expressed their views on the given subject. It is clearly observed by the District Deputy Director of Consolidation in his report that the Chairman and members of the Consolidation committee have filed their respective affidavits to carry out consolidation operation. He has found most of the objections to be baseless and ambiguous. After due enquiry he has recommended to carry out the consolidation operation. Having considered the report submitted by District Deputy Director of Consolidation alongwith the report of the Settlement Officer of Consolidation, learned Consolidation Commissioner came to the conclusion that no valid ground persists to cease the consolidation operation. The provision as enunciated under Rule 17 of the UP Consolidation of Holdings Rules are not attracted in the matter. In this backdrop of the facts, the learned Consolidation Commissioner has passed the order impugned dated 2.3.2020, rejecting the representation moved by the petitioner and issued a direction to carry out the consolidation operation in proper and legal manner. I am sceptical of the submission advanced by learned counsel for the petitioner that the relevance of issuance of the notification under Section 4 A(2) of UPCH Act can be the subject matter of judicial review and same can be cancelled by the court. He has reiterated and reaffirmed all the grounds as mentioned in the representation dated 30.9.2019 and laid emphasis on the grounds as envisaged in Rule 17 of the Consolidation of Holdings Rules. It is no more res integra that a notification under Sections 4, 4-A or 6 is a piece of legislation, therefore, in the normal course, it cannot be interfered. In this respect, a detail order has been passed by this court after examining the validity of judicial review. The relevant portion of the order dated 12.7.2022 passed by this Court in the case of Chandrashekhar Vs. State of U.P. and three others, (2022) 11 ADJ 645 is quoted herein below:-
"Sections 4(1)(a), 4-A(1) and 6 (1) of the U.P.C.H. Act entrusts power to the State Government for issuing notification to bring a district or part thereof under the consolidation operation or its cancellation as mentioned in the said sections respectively. The State Government exercises its power for issuing notification through delegated legislation as enunciated under Section 44 of U.P.C.H. Act and to delegate its power under the provisions of Section 44 of the U.P.C.H. Act, the State Government has issued notification dated October 19, 1956 authorizing the Director of Consolidation (Consolidation Commissioner) of the State to issue notification under Sections 4(1)(a), 4-A (1) & 6 (1) of U.P.C.H. Act respectively. For ready reference, provisions as enunciated under Section 44 of the U.P.C.H. Act is quoted herein under:-
"Section 44. Delegation.-- The State Government may, by notification in the Official Gazette, and subject to such restrictions and conditions as may be specified in the notification.
(i) delegate to any officer or authority any of the powers conferred upon it by this Act; and
(ii) confer power of the Director of Consolidation, Deputy Director, Consolidation, the Settlement Officer, Consolidation, and the Consolidation Officer under this Act or the rules, made thereunder on any officer or authority."
The provisions, as mentioned above, succinct the power of State Government to promulgate the notifications, as required in it's opinion and such notifications are part of legislative functions which are not open in ordinary course for judicial review unless it suffers with the grounds of ultra vires or lack of competence of legislation or unreasonableness.
Scope of judicial review against the notification under Sections 4 & 6 of the U.P.C.H. Act has been examined by the Division Bench of this Court in the matter of Agricultural & Industrial Syndicate Ltd. vs. State of U.P. reported in 1976 RD 35 and it has been expounded that "when the Director of the Consolidation issued a notification under Section 4 or 6 of the Act, he performs neither a quasi judicial function nor exercises any administrative power but performs a legislative function. To judge the validity of the notification, the Court must apply the same as it would apply to a piece of legislation. Just as, it cannot be contended that any legislative authority should given reason in support of its legislation or give a hearing to those affected before proceeding to legislate. The Director of Consolidation also cannot be required to give either a reasoned order or to accord hearing to the tenure holders concerned before issuing a notification under Section 6 of the Act."
More over, the Division Bench has further held that "If the High Court allows the writ petition and quashes the notification issued under Section 6, the result would be in substance a direction to the State Government to continue the consolidation proceedings in the area in question in spite of the fact that it has not considered it fit to do so in exercise of powers vested in it by the legislature. As the notification under Section 4 & 6 are issued by the State Government in exercise of conditional legislative power, it cannot be conceivably contended that the High Court can issue a mandamus to the legislature to legislate on any subject or to apply any law to any area. The High Court cannot pass an order making it obligatory on the State Government to enforce the scheme of consolidation in an area where, in its opinion, such scheme should not be enforced. It would amount to compel the State Government to exercise its power of conditional legislation."
In case of Deo Nath Kewat vs. Dy. Director of Consolidation and others (1990 RD 177), co-ordinate Bench of this Court has held that as the issuance of notification under Section 6 for cancellation of the notification under Section 4 (four) is an administrative-cum-policy matter to be decided by the State Government, either to issue notification under Section 4 for the consolidation operation to commence in the area or to issue notification under Section 6. As a matter of fact the scope of writ of mandamus can not be extended to such an extent as to enforce administrative or legislative powers. In fact, either to issue notification under Section 6 for cancellation of notification is a sort of legislative power of the state. The jurisdiction of High Court under Article 226 need not be stretched to such an extent so as to compel the State Government to legislate on a particular subject, particularly when it does not give a corresponding right in favour of the petitioner.
Relying upon the judgment of the Division Bench in the case of Agricultural & Industrial Syndicate Ltd. (Supra), a Coordinate Bench of this Court in batch of cases, leading Writ Petition No. 337 of 1990 (Rajaram Ojha vs. Consolidation Commissioner) decided on 31.03.2014 reported in MANU/UP/2782/2014, has held as well that it would not be proper to interfere in the notification issued by the State Government to carry out consolidation operation or its cancellation. Relevant paragraph nos. 8 & 9 of this judgment is quoted hereinunder :-
"8. Coming to the authorities cited on behalf of the State, it is appropriate to refer to the Division Bench decision of this Court in the Case of the Agricultural and Industrial Syndicate Limited v. State of U.P. 1976 RD 35. In this case it was held that the notifications issued either under section 6 of the U.P. Consolidation of Holdings 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. It was observed by the Supreme Court in The State of Bihar v. Sir Kamleshwar Singh MANU/SC/8741/2006:-
"It cannot possibly have been intended that the legislature should be under an obligation to make a law in exercise of that power, for no obligation of that kind can be enforced by the Court against a legislative body." Similarly, this Court could not pass an order which would make it obligatory on the State Government to enforce the scheme of consolidation in an area where in its opinion such scheme should not be enforced. It would amount to compel the State Government to exercise its powers of conditional legislation."
9. The Second judgment relied upon by the State is Dev Nath Kewat v. Deputy Director of Consolidation 1990 RD 175. This judgment, relying upon the ratio laid down in the case of Agricultural and Industrial Syndicate Limited (supra), has held as follows :--
"The scope of writ of mandamus is by now well settled that unless there is some denial of the statutory duty cast upon the State and authority and the State has refused to carry out the statutory duty, in that event writ of mandamus cannot be issued. In the instant case by refusing to issue notification under section 6(1) of the Act it cannot be said that the State Government has refused to carry out any statutory duty imposed upon it. In such matters no writ of mandamus can be issued. However, it is open to the petitioners to approach the State Government with their representation if so advised."
In the case of Smt. Kalpi Devi vs. Consolidation Commissioner & Another reported in 2016 (131) R.D., 738, a Division Bench of this Court has shown its agreement with the decision of previous Division Bench of this Court in the case of Agricultural & Industrial Syndicate Ltd. (Supra). It is apposite to mention that in the said judgment the Division Bench has also considered the another judgment of the Division Bench of this Court rendered in the matter of Dalip & 3 Others vs. Vikram Singh & 6 Others reported in 2015 (128) R.D., 666. Relevant paragraph no. 3 of the judgment in the case of Smt. Kalpi Devi (Supra) is quoted hereinunder :-
"3. This Court obviously cannot issue a writ which would make it obligatory upon the State Government to enforce a scheme of consolidation in an area where in its opinion such a scheme should not or cannot be enforced. It would amount to compelling the State Government to exercise its power of conditional legislation. The law as declared by the Division Bench in Agricultural & Industrial Syndicate Limited has been consistently followed by this Court and stood reiterated in the recent pronouncement of the Court in Dalip Singh. We therefore find no ground which would warrant interference with the view taken by the learned Single Judge especially when the same was itself founded on what had been consistently held by the Division Benches of this Court."
So far as the applicability of Rule 17 of U.P.C.H. Rules is concerned, from perusal of Rules, it is clear that rules are made by the State Government by applying its power under Section 54 of the U.P.C.H. Act. Rule 17 of the U.P.C.H. Rules are neither exhaustive nor mandatory for the purposes of issuance of notification under Section 6(1) of the U.P.C.H. Act to cancel the consolidation operation carrying out in pursuance of notification promulgated under Section 4 or Section 4-A of the U.P.C.H. Act. It is noteworthy to state that all these rules as framed under Section 54 of the U.P.C.H. Act are subject to provisions as enunciated under Section 54(3) of the U.P.C.H. Act.
Considering the scope and nature of Rule 17 of the U.P.C.H. Rules, a Coordinate Bench of this Court in Writ-B No. 8706 of 2016 (Jasmeet Singh vs. State of U.P. & 2 Others) decided on 07.04.2016 has held as under :-
"The only other point which survives for consideration is as to whether the provisions contained in Rule 17 of the Act are mandatory. I have in the judgment dated 31.03.2014 in a bunch of cases, the leading case wherein was Writ Consolidation No. 535 pf 2-15, Raja Ram Ojha Vs. Consolidation Commissioner and others, already considered this aspect and have held that the opening words in Rule 17 are :'the notification made under Section 4 of the Act may among other reasons be cancelled" are such that the conditions mentioned in Rule 17 are rendered merely illustrative. Anything which is only illustrative cannot be mandatory. The wording of Rule 17 is not such that would lead to a conclusion that these conditions are comprehensive or mandatory. Besides the Division Bench decision in the case of Agricultural & Industrial Syndicate Limited has already laid down that no reasons are required to be disclosed for issuing the notification either under Section 4 or Section 6 of the Act. It therefore, necessarily follows that it is the subjective satisfaction of the Authority competent to issue the notification which alone is of any consequence. If reasons are not to be assigned for issuing the notification, it is not open for the writ Court to scrutinize the reasons for the same. The conditions enumerated in Rule 17 are therefore, mere guidance for the Authority taking the decision in this regard and for this reason also, the conditions in Section 17 cannot be held to be mandatory by any stretch of imagination."
5. Applying the legal proposition as discussed above in the given circumstances of the present case, I am of the considered view that the present petition does not deserve indulgence of this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. A perusal of the order impugned dated 2.3.2020 evince that the learned Consolidation Commissioner has decided the representation dated 30.9.2019, in compliance of the order dated 26.11.2019 passed by this Court in Writ B No.2564 of 2019, after calling for the reports from the authorities concerned. Having considered the report dated 12.2.2020 submitted by the District Deputy Director of Consolidation alongwith the report dated 7.2.2020 submitted by the Settlement Officer of Consolidation, the learned Consolidation Commissioner has turned down the request made by petitioner to cease the consolidation operation and came to the conclusion that it would be befitting to carry out the consolidation operation to its logical end. All the pleas taken by the petitioner in his representation have been answered in the negative. While rejecting the representation, he has unequivocally directed to the Settlement Officer of Consolidation that all the villagers/farmers shall be informed by the Consolidation Committee that they are free to file their respective objections even time barred, in case they feel aggrieved with dismantling fences of their plots, if any. It is further directed that the valuation of plots should properly be reviewed and ensure that no injustice should encompass the tenure holders. Any objection moved by villagers qua deficiencies in area or any other grievances should properly be redressed. The consolidation operation should properly be carried out in consonance with the rules, with full transparency and the cooperation of the villagers.
6. Learned counsel for the petitioner has laid emphasis on the news item to strengthen his submission that 141 votes were cast against the consolidation operation, however, only 8 votes are cast in its favour which has illegally been represented by the consolidation authorities to be 108 votes. This aspect of the matter, as to how many villagers have participated in the meeting and cast their vote for and against the consolidation operation, is a matter of fact which is concluded by the report and the finding of fact returned by Consolidation Commissioner. A news clip can not be an admissible evidence to rebut the finding of fact returned by the learned Consolidation Commissioner. The grounds envisaged under Rule 17 of the Consolidation of Holdings Rules are not absolute or mandatory rather they are suggestive and illustrative, which may be considered as one of the grounds for the purposes of cancelling the consolidation operation, as discussed in the proceeding paragraphs, therefore, much emphasis cannot be laid on the grounds stipulated under Rule 17 of the U.P. Consolidation of Holdings Rules. Moreover, the order under challenge passed by the Consolidation Commissioner on the representation moved by the petitioner is not a judicial order. He has returned findings of fact after conducting a proper inquiry through the authorities concerned, who have submitted their report, and accorded a proper opportunity of hearing to the parties concerned.
7. In this conspectus, as above, I am of the considered view that no justibale ground is made out to entertain the instant writ petition and interfere in the order under challenge dated 2.3.2020 (Annexure 8). There is no illegality, perversity, ambiguity or infirmity in the order under challenge which may warrant the indulgence of this court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. Even otherwise there is no justification to review the intent of legislation promulgated under Section 4 A of U.P. Consolidation of Holdings Act.
8. Resultantly, the instant writ petition, being misconceived and devoid of merits, is dismissed with no orders as to the costs.
Order Date :- 1.8.2024/vkg
