Allahabad High Court
Becha Lal vs State Of U.P. Thru Dy. Collector Lucknow ... on 18 July, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?AFR Neutral Citation No. - 2025:AHC-LKO:41212 Court No. - 6 Case :- WRIT - C No. - 1003588 of 2003 Petitioner :- Becha Lal Respondent :- State Of U.P. Thru Dy. Collector Lucknow And 2 Ors. Counsel for Petitioner :- Kishore Kr. Srivastava,Ravi Shanker Tewari,Sheo Pal Singh Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey,R.N. Gupta Hon'ble Alok Mathur,J.
1. Heard Shri Ravi Shanker Tewari, learned counsel for the petitioner as well as Shri Badrish Kumar Tripathi, learned Standing Counsel on behalf of respondents.
2. By means of the present writ petition, the petitioner has challenged the order dated 30.08.2001 passed by Sub-Divisional Magistrate, Sadar, Lucknow thereby rejecting the application preferred by petitioner.
3. The petitioner moved an application under Section 34 of the Land Revenue Act for mutation of his name in place of name of recorded tenure holder on the basis of registered sale deed whereby the petitioner had purchased a plot of land Khasra No.874 Khatauni No.134 area 6 Biswa situated at Village Sikroori, Pergana, Tehsil and District Lucknow from its recorded tenure holder Shri Kailash Chandra Yadav son of Late Shri Baboo Lal.
4. It has been submitted by counsel for the petitioner that the area of Khasra No.874, total area was 2 Bighas 9 Biswa, out of which the petitioner has purchased only 6 Biswas of land which was a fragment of the total holding of the recorded tenure holder. On the application of the petitioner for mutation, a notice was issued by the Sub-Divisional Magistrate, Sadar, Lucknow under Section 166/167 of the U.P.Z.A.&L.R. Act asking him to respond as to why the said land should not be vested in the State Government in light of the provisions contained in Section 168-A of the U.P.Z.A.&L.R. Act, which provides for a clear injunction of fragmenting that holdings. The proceedings before the S.D.M. were conducted ex parte and the petitioner did not appear and only after perusal of the record, the S.D.M. recorded a satisfaction to the effect that the petitioner had purchased 6 Biswa of land in Gata No.874 which happens to be a fragment of the total area which is not permissible in light of provisions under Section 168-A of the U.P.Z.A.&L.R. Act and accordingly, directed the vesting of the said land in the State Government. It was further submitted that as per provision of 166 of the U.P.Z.A.&L.R. Act, any transfer made in contravention of the Act was void and as per the consequences provided under Section 167 of the U.P.Z.A.&L.R. Act, the said land vested in the State Government after he declared the said transfer to be void.
5. The petitioner being aggrieved by the order dated 30.08.2001 preferred a revision under Section 333 of the U.P.Z.A.&L.R. Act before the Additional Commissioner (Judicial), Lucknow Mandal, Lucknow. Before revisional authority, it was submitted that the proceedings before the Sub-Divisional Magistrate are illegal and arbitrary and in gross violation of principle of natural justice inasmuch as no opportunity of hearing was given and hence prayed for setting aside the said order.
6. The Additional Commissioner (Judicial) considered the arguments of the petitioner, who subsequently, did not appear in the revision and consequently, it was rejected holding that there has been no violation of principle of natural justice.
7. The counsel for the petitioner while assailing both the orders date 30.08.2001 and 11.10.2002 has submitted that a perusal of Section 168-A of the U.P.Z.A.&L.R. Act would indicate that injunction against transfer of fragments applies only if the said land is situated in consolidated area and does not extent to any other area which is not found to be part of consolidated area. He submits that the said amendment was brought into effect by U.P. Act, 18 of 1956 but it was omitted from the statute book by U.P. Act 27 of 19 from 2004 with effect from 23.08.2004. It has been submitted that at the time when the U.P.Z.A.&L.R. Act was enacted, the U.P. Consolidation of Holdings Act, 1953 was not in existence and it is only after enactment of the Act of 1953 that the "consolidated area" came to be defined under Section 2A of the Act of 1953 which is quoted hereunder:
"2A.[ 'Consolidation area' means the area, in respect of which notification under Section 4 has been issued, except such portions thereof to which the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950,] [Added by U.P. Act No. 38 of 1958.] [or any other Law by which Zamindari System has been abolished] [Added by U.P. Act No. 30 of 1991 (w.e.f. 19.02.1991).] do not apply;"
8. Accordingly, it is stated that such area would be deemed to be consolidated area only where a notification under Section 4 of the Act of 1953 is issued with regard to such area. It has been submitted that notice under Section 4 of the Consolidation of Holdings Act, 1953 was issued on 25.09.1982 but before the consolidation operations could be concluded, order for cancellation of the notification under Section 4 was issued on 26.10.1985. The aforesaid facts have also been stated in affidavit dated 28.05.2025 filed by Sri Praveen Singh Gautam, Additional Consolidation Officer, Bakshi ka Talab, Lucknow.
9. It is in the aforesaid circumstances, this Court is called upon to consider the fact that when a fragment of a holding has been transferred during the period when Section 168-A of the U.P.Z.A.&L.R. Act was in existence with regard to an area which though initially was subject to proceedings under Section 4 of the U.P.. Consolidation of Holdings Act, 1953 but were subsequently cancelled by issuance of notification under Section 6 before the proceedings were finalized, would bar of Section 168-A still apply?
10. Considering the provisions of Section 168-A of the U.P.Z.A.&L.R. Act, one of the conditions necessary for the applications of injunction against transfer of fragment is the fact that the fragment should be situated in a "consolidation area", except where the transfer is in favour of tenure holder, whose plot is contiguous to the fragment or the transfer is not in favour of any such tenure holder.
11. Accordingly, the moot question for consideration is as to whether at the relevant time whether the said unit can be held to be included in the consolidated area.
12. To consider the aforesaid submissions, one has to consider the provisions of Sections 6 (2) of the Act of 1953 which provides that 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 corrections of land records, if any, passed on or before the date of such cancellation seized to be under consolidation operations w.e.f. date of cancellation. Hence, on issuance of a notification under Section 6 of the Act of 1953, cancelling the notification under Section 4 of the Act of 1953, all the consolidation operations cease except the final order relating to corrections of land record.
13. The ambit of Sections 4 and 6 has been elaborated by a Division Bench of this Hon'ble Court in the case of Dalip Singh and 3 others versus Vikram Singh and 6 others, Special Appeal Defective No.421 of 2015 wherein following has been observed:
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."
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.
14. In the present case, there is no dispute that the consolidation operations had not attained finality and accordingly, all the proceedings had ceased from the issuance of the notification under Section 6 of the Act of 1953. On issuance of the aforesaid notification, the said land could not be held to be under consolidation operations and hence, excluded from being considered a consolidated area.
15. The S.D.M. did not consider the aforesaid aspect of the matter and merely assuming that the area was subject to consolidation operations, concluded that the disputed land was liable to be considered as a consolidated area as per Section 2A of the Act of 1953. This presumption is clearly contrary to the statutory provisions as discussed hereinabove. On the issuance of the notification under Section 6 of the Act of 1953, the area which in fact came under consolidation operation got excluded from the consolidated area and therefore, also came to be excluded from the rigors of Section 168-A of the UP. Zamindari and Abolition Act,
16. Accordingly, in light of the above, both the impugned orders dated 30.08.2001 and 11.10.2002 are illegal and arbitrary and are set aside. The petition stands allowed.
[Alok Mathur,J.] Order Date :- 18.7.2025 KR