Shailendra Nath Rai And Others vs State Of U.P. And Others
2024 Latest Caselaw 17207 ALL

Allahabad High Court

Shailendra Nath Rai And Others vs State Of U.P. And Others on 15 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


				      Neutral Citation No.2024:AHC:87979
 
				       Court No. 48
 
				       WRIT - B No. - 35288 of 2007
 
Petitioners :- 			Shailendra Nath Rai and Others
 
Respondent :- 			State of U.P. & Others
 
Counsel for Petitioner:- 	Awadhesh Kumar Malviya, 							Advocate
 
Counsel for Respondent :- 	R.C. Singh, Senior Advocate, N.D. 					Shukla, Advocate, Mr. Ashutosh 						Kumar Rai, Addl. C.S.C.
 

 
Hon'ble Chandra Kumar Rai,J.
 

1. Heard Sri Awadhesh Kumar Malviya, learned counsel for the petitioners, Sri R.C. Singh, learned Senior Counsel assisted by Sri N.D. Shukla, learned counsel for the contesting respondents and Sri Ashutosh Kumar Rai, learned Addl. C.S.C. for the state-respondents.

2. Brief facts of the case are that the petitioners along with other villagers of the village Maudhiya, Pargana + Tehsil Jakhaniya, Ghazipur filed an application before the Consolidation Commissioner, U.P., Lucknow on 13.9.2006 with the prayer that provisional consolidation scheme be taken place afresh or the village in question be notified under Section 6 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the "U.P. C.H. Act") in order to protect the land belonging to Gaon Sabha. On the aforementioned application dated 13.9.2006, an objection was invited by respondent no.1 from his subordinate authorities vide order dated 22.9.2006. One Smt. Sona Devi filed an application along with order dated 2.3.2007, passed by this Court in Writ Petition No.11742/2004 before respondent no.1 on which an explanation was asked from the authorities, accordingly, the consolidation authorities have jointly submitted a report on 19.5.2007 before respondent no.1. On the basis of the aforementioned report, the Settlement Officer of Consolidation has also submitted his report. Respondent no.2/Deputy Director of Consolidation, submitted his report on 4.6.2007 before respondent no.1/Consolidation Commissioner. On the basis of the report of the Deputy Director of Consolidation dated 4.6.2007, respondent no.1/Consolidation Commissioner passed the impugned order dated 5.7.2007, directing to start demarcation proceeding as well as delivery of possession to the tenure holders of the village. Hence, this writ petition on behalf of the petitioner, challenging the impugned order dated 5.7.2007, passed by respondent no.1/Consolidation Commissioner as well as for mandamus, directing the respondents not to demarcate and not to initiate the proceeding of delivery of possession regarding public utility lands recorded in the name of the gaon sabha or to restart the consolidation proceeding from the stage of Assistant Consolidation Officer after removing false and fictitious entry from the revenue papers.

3. This Court vide order dated 2.8.2007 entertained the matter, issued notice to respondent no.5, inviting counter affidavit from state as well as from respondent no.5 and granted interim protection, staying the operation of the impugned order dated 5.7.2007, passed by respondent no.1/Consolidation Commissioner as well as the implementation of provisional consolidation scheme was ordered to be kept in abeyance.

4. In pursuance of the order dated 2.8.2007, State has filed his counter affidavit and petitioner has filed his rejoinder affidavit.

5. Counsel for the petitioner submitted that in view of the report submitted on 19.5.2007, it is fully demonstrated that proceeding of delivery of possession could not be initiated in the village, without correcting mass of false and fictitious entry regarding public utility plots but the impugned order has been passed by respondent no.1/Consolidation Commissioner in arbitrary manner. He further submitted that the impugned order is wholly perverse and against the settled provisions of U.P. C.H. Act. He further submitted that delivery of possession of the village is pending under Section 24 of the U.P. C.H. Act and in view of the report of the consolidation authorities, the village in question should be notified under Section 6(1) of the U.P. C.H. Act read with Rule 17 of the U.P. C.H. Rules, 1954. He further submitted that two options are open in the matter, one is either to restart the consolidation proceeding from the stage of Assistant Consolidation Officer or to notify the village in question under Section 6(1) of the U.P. C.H. Act. He also submitted that earlier, committee was duly constituted for making spot inspection and calling the public meeting of the villagers of the village in question for perusing the false, fictitious and forged entry in the revenue records but without following the direction, the impugned order as been passed in arbitrary manner. He further submitted that individual interest cannot be violated in order to protect the mass of people's interest. He submitted that the impugned order dated 5.7.2007 be set aside and the village be notified under Section 6(1) of the U.P. C.H. Act or consolidation operation may take place afresh from the stage of Assistant Consolidation Officer.

6. On the other hand, learned Senior Counsel appearing for the private respondents as well as learned Addl. C.S.C. appearing for the state-respondents submitted that there is no illegality in the impugned order passed by respondent no.1. They further submitted that village was notified under Section 4 of the U.P. C.H. Act on 20.12.1983, Section 9 of the U.P. C.H. Act took place on 16.9.1983 and Section 20 of the U.P. C.H. Act took place on 9.4.2001,chak appeals were finally decided on 26.4.2004 and proceedings under Section 24 of the U.P. C.H. Act are pending in the village in question but due to the interim order granted by this Court in 2007, further proceedings of the consolidation operation in the village in questions are held up, as such, the instant writ petition be dismissed so that the pending consolidation operation be concluded in the village in question. He further submitted that consolidation operation in the village in question is held up due to the interim order passed in the instant writ petition filed by the petitioners, which is not maintainable against the order passed by the Consolidation Commissioner. They further submitted that the Consolidation Commissioner has passed the detailed order taking into consideration the complaint of the villagers, report of the consolidation authorities as well as the provisions of the U.P. C.H. Act and the Rules framed thereunder which requires no interference in exercise of jurisdiction under Article 226 of the Constitution of India.

7. I have considered the arguments advanced by learned counsel for the parties and perused the records.

8. There is no dispute about the fact that the village was notified under Section 4 of the U.P. C.H. Act on 20.12.1983 and the proceeding under Section 24 of the U.P. C.H. Act was pending when the interim order was granted by this Court in the instant writ petition. There is also no dispute about the fact that in view of the order passed by this Court in Writ Petition No.11742/2007, directing the Consolidation Commissioner to decide the representation of the petitioners, the impugned order has been passed, holding that it will not be appropriate to notify the village in question under Section 6 of the U.P. C.H. Act rather proceeding under Section 24 of the U.P. C.H. Act (delivery of possession in the village in question) be completed in accordance with law.

9. The perusal of the impugned order dated 5.7.2007 will be necessary which is quoted hereunder:-

"कार्यालय चकबंदी आयुक्त, उत्तर प्रदेश, लखनऊ।

संख्या 2274/जी०-404/80(11)           दिनांक- 5 जुलाई 2007
 
आदेश
 

रिट याचिका संख्या- 11742/2007 श्रीमती सोना देवी बनाम उत्तर प्रदेश राज्य व अन्य में माननीय उच्च न्यायालय द्वारा पारित आदेश दिनांक 273-2007 में यह निर्देश दिया गया है कि एनेक्जर-8 दिनांक रहित का निस्तारण तीन माह में किया जाय। रिट याजिका एनेक्जर-8 प्रत्यावेदन दिनांक रहित में मुख्य रूप से ग्राम का कब्जा परिवर्तन किये जाने का अनुरोध किया गया है।

मा० उच्चन्यायालय के आदेश दिनांक 2-3-2007 के अनुपालन में याची के प्रत्यावेदन दिनांक रहित एनेक्जर-8 पर उप संचालक चकबन्दी से आख्या मांगी गयी। उप संचालक चकबन्दी की आख्या दिनांक 4-6-2007 के अनुसार ग्राम- मौधिया, परगना- सैदपुर, तहसील- जरवनियाँ, जिला- गाजीपुर में धारा-4 का प्रकाशन दिनांक 20-12-83 तथा धारा 23 का पुष्टिकरण 20-7-2005 को किया जा चुका है इस प्रकार ग्राम में धारा-23 की कार्यवाही में लगभग- 23 वर्षों का समय व्यतीत हुआ है।

ग्राम में प्रबल गुटबन्दी होने के कारण कब्जा परिवर्तन की कार्यवाही सम्भव नहीं हो पा रही है।

उप संचालक चकबन्दी की आख्या तथा प्रत्यावेदन का अवलोकन करने के पश्चात् इस निष्कर्ष पर पहुंचा हूँ कि मात्र गुटबन्दी के आधार पर 23 वर्षों की चकबन्दी प्रक्रिया को उलटकर धारा- 6 अर्थात् चकबन्दी से पृथक किया जाना न्याय संगत नहीं है। जिलाधिकारी/जिला उप संचालक चकबन्दी गाजीपुर की धारा- 24 (कब्जा परिवर्तन) की कार्यवाही नियमानुसार पूर्ण कराने का निर्देश दिया जाता है। तद्नुसार प्रत्यावेदन का निस्तारण किया जाता है।

(सी०के०तिवारी)

चकबन्दी आयुक्त

उ०प्र०"

10. So far as the exercise of writ jurisdiction under Article 226 of the Constitution of India in respect to the notification under Sections 4 & 6 of the U.P. C.H. Act is concerned, this Court in the case reported in (2016) 131 RD 478, Jasmit Singh and Others vs. State of U.P. and Others, has held that Rule 17 of the U.P. C.H. Rules is not mandatory rather the same is mere guideline for the authority taking the decision in this regard. Paragraph nos. 28 & 29 of the judgment rendered in Jasmit Singh (supra) is quoted hereunder:-

"28.The contention that the representation of the petitioner was supported by an affidavit which remained un-controverted and therefore, the impugned notification under section 6(1) of the Act could not have been issued, is also without substance. The case law that has been cited, relates to judicial proceedings. The proceedings before the Consolidation Commissioner, if any, were not judicial proceedings. Since even the Writ Court is not competent to direct the Government or its delegatee to legislate in a particular manner, it would be stretching things to far to hold that an authority competent to legislate on a point, must legislate on the basis of an affidavit, or un-controverted affidavit, for that matter. The submission made by the learned Counsel for the petitioner therefore, in this regard, is wholly misconceived.

29.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 31.3.2014 in a bunch of cases, the leading case wherein was Writ Consolidation No. 535 of 2015, Raja Ram Ojha v.Consolidation Commissioner, 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 and 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 guidelines 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."

11. Considering the provisions of the U.P. C.H. Act and the Rules framed thereunder, the ratio of law laid down by this Court in Jasmit Singh (supra) as well as the facts and circumstances of the instant case, particularly that the consolidation operation is pending in the village in question since long back, no interference is required in the matter.

12. The writ petition is dismissed. The consolidation authorities are directed to proceed from the stage of Section 24 of the U.P. C.H. Act in the village in question strictly following the provisions contained under the U.P. C.H. Act and the Rules framed thereunder.

Order Date :- 15.5.2024

C.Prakash

(Chandra Kumar Rai, J.)