Allahabad High Court
Chandrashekhar vs State Of U P And 3 Others on 12 July, 2022
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 32 Case :- WRIT - B No. - 978 of 2022 Petitioner :- Chandrashekhar Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Arun Kumar Srivastava Counsel for Respondent :- C.S.C. Hon'ble Dinesh Pathak,J.
Heard learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.
Present writ petition has been filed challenging the order dated 04.03.2022 (Annexure-8) passed by the Consolidation Commissioner (respondent no. 4), rejecting the representation dated 31.12.2021 moved by one Awadhesh Mishra, in pursuance of the order dated 18.11.2021 passed by this Court in Writ-B No. 1764 of 2021; Awadhesh Mishra vs. State of U.P. & 3 Others (Annexure-7).
Grievance of the petitioner is that village Chandadih, Pargana Sikendarpur, Tehsil Belthara Road, District Ballia has illegally been brought under the consolidation operation by issuing notification under Section 4-A of the U.P. Consolidation of Holdings Act (in brevity 'U.P.C.H. Act') promulgated on 27.05.2016 and the Consolidation Commissioner has illegally rejected the representation without adverting to the grievance raised before him.
Facts culled out from the averments made in the writ petition are that some of the villagers have shown their dissatisfaction against the issuance of notification under Section 4-A of the U.P.C.H. Act, inter alia, on the grounds that previously, consolidation operation had already been finalized in the year 1971 and there was no occasion to carry out second round consolidation operation. Feeling aggrieved against the said notification under Section 4-A of the U.P.C.H. Act, one Awadhesh Mishra had filed writ petition before this Court challenging the said notification being Writ-B No. 1764 of 2021 (Awdhesh Mishra vs. State of U.P. & 3 Others). While deciding the said writ petition, this Court has observed that there was a sharp division of opinion amongst the villagers qua carrying out second round consolidation operation. Some of the villagers are in favour of carrying out consolidation operation and some are in favour of cancellation of the notification, consequently, this Court, vide order dated 18.11.2021, has disposed of the writ petition with a direction to the Consolidation Commissioner to decide the representation of the petitioner, which is quoted herein below :-
"1. Heard Sri Deepak Kumar Jaiswal, Advocate holding brief of Sri Arun Kumar Srivastava, learned counsel for the petitioner as well as learned Standing Counsel for the State respondents.
2. Supplementary affidavit and instructions are taken on record.
3. Sri Girish Chandra Maurya, Advocate has filed impleadment application for impleadment of applicants as respondents as they are necessary party to the case. The impleadment application is not objected by learned counsel for the petitioner, same is accordingly allowed and learned counsel for the applicants is directed to incorporate necessary impleadment during course of the day.
4. In the present writ petition, notification under Section 4 of the Consolidation of Holdings Act was issued on 30.09.2021, but it seems that the petitioner is aggrieved by the said proceedings inasmuch as according to him majority of villagers are not in favour of such proceedings as according to him no fruitful purpose would be served by the same.
5. On the other hand an application for impleadment has been moved claiming to be representing majority of villagers, who, according to him are in favour of the consolidation proceedings. He further submits that a report has been submitted by the Consolidation Committee to the authorities concerned in favour of the consolidation proceedings.
6. The question involved in this writ petition is as to whether consolidation proceedings should proceed or not. In the present circumstances, as there are clearly two versions available contradicting each other and consequently it would be appropriate that the issue need be suitable considered by the Consolidation Commissioner, U.P. at Lucknow.
7. Accordingly, in the light of above, with the consent of learned counsel for the parties, present writ petition is disposed of with direction that the Consolidation Commissioner, U.P. at Lucknow shall look into the matter and pass reasoned and speaking order on the representation of the petitioner within two months, from the date of production of certified copy of this order, after giving opportunity of hearing to all the concerned, in accordance with law.
8. The effected persons who have approached this Court may approach the Consolidation Commissioner for redressal of their grievance along with the decision on the representation of the petitioner.
9. With above observations/directions the writ petition stands disposed of."
In pursuance of the order dated 18.11.2021, respondent no. 4 has passed impugned order dated 04.03.2022 rejecting the representation dated 31.12.2021 moved by Awadhesh Mishra (petitioner in Writ Petition No. 1764 of 2021) for cancellation of the notification under Section 4A of the U.P.C.H. Act and has further directed to the authorities concerned for preparation of the provisional consolidation scheme as enunciated under Section 19 & 19A of the U.P.C.H. Act.
Said impugned order dated 04.03.2022 passed by respondent No. 4 is being challenged in the presnt writ petition by third person namely Chandrashekhar (the petitioner herein) who is claiming himself to be the resident of said village.
Learned counsel for the petitioner submits that no justifiable ground was available to the State authority to put the village in question under consolidation operation. Representation moved by Awadhesh Mishra has illegally been rejected by the Consolidation Commissioner without adverting to the grievance as raised by the villagers in the representation. It is further submitted that material available on the record has illegally been ignored by the Consolidation Commissioner in deciding the representation. Counsel for the petitioner has drawn the attention of the Court towards the provisions as enunciated under Rule 17 of the U.P. Consolidation of Holdings Rules (in brevity 'U.P.C.H. Rules') in support of his submission that tenure holder of the village are generally satisfied with the present position, therefore, they do not want any consolidation operation in the village and owing to party factions in the villagers, proper consolidation proceeding in the village is very difficult. It is further submitted that the Consolidation Commissioner has passed the impugned order in a very cursory manner without application of mind which is illegal, unwarranted under the law and tainted with irregularities, therefore, liable to be quashed and the consolidation authorities may be directed not to carry out consolidation operation in the village in pursuance of notification promulgated on 27.05.2016.
Per contra, learned Standing Counsel has contended that respondent No. 4 has rightly decided the matter after calling for the report from the District Magistrate/District Deputy Director of Consolidation and the joint report of Settlement Officer of Consolidation and the Additional District Magistrate. Before passing order the Consolidation Commissioner has given full opportunity of hearing to the villagers including the Village Pradhan and Awadhesh Mishra who was the petitioner in previous writ petition. It is further contended that the notification under Section 4-A of the U.P.C.H. Act is not assailable in the court of law being conditional legislation and the State is not under legal obligation to record the reason for exercising its legislative power in a peculiar way. It is also contended that the legislation cannot legislate on the sweet will of any person, therefore, the instant writ petition, challenging the order impugned and seeking a mandamus against the authorities concerned not to proceed with the notification under Section 4-A of the U.P.C.H. Act, is nothing but an abuse of process of law, misconceived and devoid of merits which is liable to be dismissed in limine.
Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, the question for consideration in the present petition lies in a very narrow compass as to whether this Court can examine the legality and validity of issuance of notification under Section 4-A of the U.P.C.H. Act or not.
Before considering the scope of judicial review qua issuance of notification under Section 4-A of the U.P.C.H. Act, it would be befitting to go through the relevant provisions relating to cancellation of notification under Section 4 or 4-A of the U.P.C.H. Act, as enunciated under Section 6 of the U.P. Act read with Rule 17 of the U.P.C.H. Rules which are reproduced hereinunder :-
" Section 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 canceled 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.] 'Rule 17'. Section 6.--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, viz, that --
(a) the area is under a development scheme of such a nature as when completed would render the consolidation operations inequitable to a section of the peasantry;
(b) the holdings of the village are already consolidated for one reason or the other and the tenure-holders are generally satisfied with the present position;
(c) the village is so torn up by party factions as to render proper consolidation proceedings in the village very difficult; and
(d) that a co-operative society has been formed for carrying out cultivation in the area after pooling all the land of the area for this purpose."
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 hereinunder:-
"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."
Applying the legal proposition, as discussed above, in the facts and circumstances of the instant case, I am of the view that the present petition does not deserve any indulgence of this Court. Perusal of the impugned order dated 04.03.2022 reveals that before deciding the representation, the Consolidation Commissioner has called for the report dated 08.02.2022 from the District Magistrate/District Deputy Director of Consolidation and the joint report dated 03.02.2022 submitted by the Additional District Magistrate and the Settlement Officer of Consolidation. In the said reports it has been pointed out that the considerable area of Gaon Sabha is in the possession of illegal occupants. In the joint meeting with villagers, 97 chak holders have opposed the consolidation operation whereas 243 chak holders were in favour of carrying out the consolidation operation. Total area of village is measuring 362 hectare and there are 1094 plots (holdings). During spot inspection only 263 plots were found along side the chak road and remaining 841 plots were found without facility of chak road. In the impugned order, the Consolidation Commissioner considered the points as raised on behalf of villagers including Awadhesh Mishra (petitioner in the previous writ petition) and the village Pradhan. Maximum villagers and the Village Pradhan have categorically stated that there is a shortage of drainage, chak road and place for public convenience. Having considered the rival submissions and the reports submitted by the authority concerned, the Consolidation Commissioner has given a categorical finding that the maximum land of public utility, belongs to the Gaon Sabha, are in the illegal occupation of miscreants. Apart from that only 253 plots (23.12%) are with the facility of chak road and remaining 75% of the land are without the facility of chak road which is causing difficulty to access the holdings. It is also observed by the Consolidation Commissioner that land of the maximum chak holders are in scattered position without the facility of drainage and chak road. A categorical finding has also been recorded that maximum number of villagers are in favour of carrying out the consolidation operation. Even Awadhesh Mishra (petitioner in previous writ petition) has also agreed to carry out the consolidation operation with the condition of minimum deduction and to avoid unnecessary shifting of chaks.
After discussing all the material available on record and the averments made by the parties concerned in detail, the Consolidation Commissioner has returned the finding of fact emphasizing the need to carry out the consolidation operation in the village/unit in question and issued a direction to proceed with the consolidation operation and issuance of notification under Section 19 & 19-A of U.P.C.H. Act to carry out the provisional consolidation scheme. It has also been directed that minimal area should be disturbed/shifted while allotment of chaks to the chak holders considering their convenience. Finding of fact as returned by the Consolidation Commissioner in the impugned order with respect to the necessity for carrying out the consolidation operation, as discussed in the impugned order, has not been challenged by the petitioner in this writ petition. It is also apposite to mention that the petitioner of earlier writ petition has accepted the carrying out of consolidation operation with a condition to avoid unnecessary shifting of chak which has appropriately been accepted by the Consolidation Commissioner and, accordingly, issued direction to complete consolidation operation. Moreover, order under challenge passed by the Consolidation Commissioner on the representation moved by villagers is not a judicial order. He has returned finding of fact after conducting proper enquiry by the authorities concerned, who have submitted their report, and accorded proper opportunity of hearing to the parties concerned.
In this conspectus as above, I am of the considered view that no justifiable ground is made out to interfere in the order under challenge. Counsel for the petitioner has failed to substantiate his submission in assailing the impugned order and the issuance of notification under Section 4-A of the U.P.C.H. Act. There is nothing on the record to demonstrate as to how the petitioner is prejudiced or is there any likelihood of causing miscarriage of justice to him due to the order under challenge. There is no illegality, perversity and ambiguity in the order under challenge which may warrant indulgence of this Court in exercise of its extra ordinary 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 the U.P.C.H. Act.
Resultantly, instant writ petition, being misconceived and devoid of merits, is dismissed with no order as to costs.
Order Date :- 12.7.2022 VR