Allahabad High Court
Rama Shanker Singh And 2 Others vs State Of U.P. And 10 Others on 15 November, 2016
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Reserved on: 16.09.2016 Delivered on: 15.11.2016 Court No. - 5 Case :- WRIT - B No. - 40642 of 2016 Petitioner :- Rama Shanker Singh And 2 Others Respondent :- State Of U.P. And 10 Others Counsel for Petitioner :- Ram Niwas Singh,Mayank Krishna Singh Chan,Vinay Kumar Singh Chandel Counsel for Respondent :- C.S.C. Hon'ble Anjani Kumar Mishra,J.
Heard Shri Ram Niwas Singh, learned counsel for the petitioners and learned Standing Counsel for the State-respondents.
The petitioners, by means of this writ petition, seek a writ of certiorari for quashing a notification issued by the Consolidation Commissioner under Section 6 (1) of the UP Consolidation of Holdings Act, 1953 (herein after referred to as the 'Act, 1953'), cancelling consolidation operations in Village Rajwari, Pargana Katehar, Tehsil and District Varanasi, issued.
Quashing of the order dated 18.9.2013, passed by the Deputy Director of Consolidation, abating a Revision No. 6671603/895/1052 (Rajendra Singh and another vs. Rama Shankar and others) on the ground that consolidation operations have been cancelled and, therefore, the revision cannot proceed, is also prayed for.
A writ of prohibition has also been sought restraining the Sub-Divisional Officer, respondent No. 4, from making Amaldaramad of an order dated 22.4.1993 passed by him.
The dispute in the writ petition appears to have a long and chequered history and pertains to Plot No. 464 of Village Rajwari.
It appears that Badri Narain and one Manki were co-sharers of this plot. The petitioners, claiming on the basis of sale-deeds, allegedly executed in their favour by Badri Narain and Manki, got their names recorded over the plot in question by an order passed by the Supervisory Kanoongo.
Upon a complaint being made by one Ram Adhar, father of respondent Nos. 5 and 6, this entry was ordered to be expunged by the Sub-Divisional Officer, vide order dated 22.4.1993.
Against this order, passed by the Sub-Divisional Officer, the petitioners preferred a Writ Petition No. 15018 of 1993, which was dismissed vide order dated 26.8.1998. Perusal of the order passed by the Writ Court, reveals that a direction was also sought in this writ petition for restraining the Sub-Divisional Officer from taking any action for correction of entries, on the basis of the order passed by him.
During the pendency of the litigation aforementioned, the village was brought under consolidation operations by a notification dated 25.4.1991 issued under Section 4 (2) of the Act, 1953.
During consolidation operations, an objection was raised by the petitioners which gave rise to Case No. 2599. The dispute therein was with regard to a double entry in this plot.
The Consolidation Officer vide order dated 18.4.1998 found that an area of 422 acre was recorded double and this double entry was ordered to be expunged from Gatas No. 244 and 344. The Consolidation Officer in this order also observed that Plot No. 464 was recorded in as many as eight gatas, namely, gata Nos. 152, 244, 284, 344, 153, 131, 248 and 289.
Aggrieved by the order passed by the Consolidation Officer, two restoration applications were filed; one by respondent Nos. 5 and 6 and another by one Rajnath.
The Consolidation Officer, vide order dated 27.5.1999, dismissed the restoration applications on the ground that the applicants had failed to prove that they were, in any manner, aggrieved by the order sought to be recalled.
The respondent Nos. 5 and 6 thereafter preferred an appeal, which was also dismissed on 7.6.2002.
They thereafter preferred Revision No. 6671603/895/1052 (Rajendra Singh and another vs. Rama Shankar and others). Perusal of the memo of this revision filed on record, shows that it challenged the order dated 18.4.1998 passed by the Consolidation Officer expunging a double entry in Gata Nos. 244 and 344, the order dated 27.5.1999 rejecting the restoration application as also the appellate order dated 7.6.2002. It is this revision, which has been ordered to abate upon issuance of a notification under Section 6 (1) of the Act, cancelling the consolidation operations.
It appears that in the year 2006, some application was filed by respondent Nos. 5 and 6, which were treated to be one under Section 42-A of the Act.
This application was allowed, but subsequently, the order was recalled on an application filed by the petitioners. The consequential revision filed by respondent Nos. 5 and 6 was also dismissed. It has been stated that this order has attained finality.
However, in my considered opinion, rejection of the application under Section 42 of the Act, is of no consequence. The dispute was pending consideration before the competent court, therefore, during the pendency of such proceedings, no correction under Section 42-A of the Act, could have been ordered as regards the plot in question. This application was, in my considered opinion, totally misconceived and was rightly rejected.
From the facts narrated above, it emerges that in proceedings under Section 34 of the UP Land Revenue Act, 1901, an order was passed by the S.D.O on 22.4.1993 directing that the name of the petitioners, which had been recorded over Plot No. 464, by an order passed by the Supervisory Kanungo, be expunged. This order became final upon dismissal of the writ petition filed by the petitioners challenging the same.
The petitioners seek a writ of prohibition restraining the Sub-Divisional Officer from making Amaldaramad of this order in the Revenue records.
In my considered opinion, this relief is entirely misconceived and cannot be granted because an identical relief was claimed in the Writ Petition No. 15018 of 1993 filed by the petitioners, which writ petition was dismissed. The relief claimed therein, stood refused.
No writ of prohibition can be issued restraining the S.D.O. from making Amaldaramad of an order passed by a competent court, especially, when an identical relief has already been refused by the High Court. The Relief (B), which prays for a writ of prohibition is, therefore, refused.
Only two other points survive for consideration; first is the challenge to be notification issued under Section 6 (1) of the Act, 1953. The second is challenge to be order dated 18.9.2013 whereby a revision have been abated by Deputy Director of Consolidation on the ground that the consolidation operations have been cancelled and, therefore, the consolidation courts cease to have jurisdiction.
Contention of learned counsel for the petitioners as regards the order dated 18.9.2013, is that there exists no provision for abatement of a revision pending before the consolidation courts.
The other contention raised in this regard is that a restoration application filed by the respondents for recall of the order dated 18.4.1998, passed by the Consolidation Officer, was rejected. It is submitted that it is settled law that a restoration case does not abate on the start of consolidation operations. Drawing an analogy, it has been submitted that the revision pertained only to the question as to whether the restoration application filed by the respondents had been rightly rejected or not and in view of the analogy drawn, the revision could not have been ordered to abate.
The consolidation courts assume jurisdiction once a unit is brought under consolidation operations and these courts decide the various disputes arising during consolidation operations in accordance with the provisions of the Act and the Rules framed thereunder.
Section 6 (1) of the Act, 1953 provides that on issuance of a notification under Section 6 (1), the unit shall cease to be under consolidation operations from the date of notification itself. It, therefore, necessarily follows that once the unit has ceased to be under consolidation operations, the consolidation courts that were exercising jurisdiction to decide disputes, cease to have jurisdiction. As a consequence, pending proceedings must abate, as the court where they are pending, have lost their jurisdiction to adjudicate. This and this alone, emerges from a bare reading of Section 6 (2) of the Act, 1953, which provides that the consequence of issuance of a notification under Section 6 (1), cancelling consolidation operations. Further, only the orders passed by the consolidation courts, which have attained finality before the notification under Section 6 (1) of the Act, 1953, are saved. Any dispute, which has not attained finality must, as noticed above, necessarily abate and status quo ante prevailing on the date, the unit was brought under consolidation operations, must be restored, be it on the spot or in the Revenue records.
For the same reason, I do not find any substance in the contention of learned counsel for the petitioners that any Amaldaramad in the Revenue records must be made under Rule 109-A of the UP Consolidation of Holdings Act or under Section 38 of the Revenue Code, 2006, for correction of papers and not on a miscellaneous application.
The Amaldaramad of an order passed by a Revenue Court is necessarily required to be made in the Revenue records. Such an Amaldaramad is made once the court passing the order issues a Parwana Amaldaramad. The respondents are seeking Amaldaramad of an order dated 22.4.1993, which appears to have been passed in proceedings under Section 34 of the Act, 1901. Since, this order has become final, upon the dismissal of the writ petition filed by the petitioners, challenging it, there exists no reason why its Amaldaramad be not made.
In view of the above discussion, I do not find any illegality in the order dated 18.9.2013 whereby the revision filed by the respondents has been ordered to abate, since the notification bringing the unit under the consolidation operations has been cancelled by the notification, issued under Section 6 (1) of the Act, 1953.
Besides, there is no merit in the submission of learned counsel for the petitioners that only a restoration case, was pending consideration at the revisional stage. Not only is the analogy that is being drawn with the provisions contained in Section 5, pertaining of abatement of proceedings, on the start of consolidation operations wholly misconceived, the contention is also factually incorrect, inasmuch as, it was not just the order rejecting the restoration application, which was under challenge is the revision but also the order passed by the Consolidation Officer on 18.4.1998.
The notification, cancelling consolidation operations, issued on 15.5.2013, has been challenged on the ground that the power to issue such a notification vests in the State. This power has been delegated to the Consolidation Commissioner. This delegation suffers from the vice of excessive delegation and it amounts to violation of Articles 14 and 21 of the Constitution of India.
It has also been urged that the notification is colourable exercise of power. Besides, the notification is arbitrary as it does not disclose any reason for issuing it. It has also been submitted that the power under Section 6 (1) of the Act, 1953, is arbitrary as no time limit has been prescribed in the Act, for exercising this power.
As regards, the submission that the impugned notification suffers from the vice of excessive delegation, it would be relevant to note that both the power to bring the unit under consolidation operations by the issuance of under Section 4 (2) of the Act as also the power to cancel the notification under Section 6 (1) of the Act, 1953, has been delegated to the Consolidation Commissioner.
In case, the contention of learned counsel for the petitioners is accepted, it would necessarily follow that both the notification under Section 4 (2), bringing the unit under consolidation operations and the notification under Section 6 (1), cancelling the consolidation operations, would necessarily fall. It would, therefore, necessarily follow that the order, which the petitioners have obtained from this, the Consolidation Officer, on 18.4.1998, would also necessarily fall as this order would be without jurisdiction. In case, the notification bringing the unit under consolidation operations is also bad, it would necessarily follow that the situation as it existed on the date of the notification under Section 4 (2) of the Act, 1953, would have to be restored.
Therefore, in my considered opinion, the argument that has been raised by learned counsel for the petitioners is self-destructive. Petitioners seek to protect the order dated 18.4.1998 by means of this writ petition, on various grounds raised therein. Upon acceptance of his argument, just the reverse will necessarily follow.
Insofar as, the notifications issued under Section 4 (2) of the Act as also under Section 6 (1) of the Act, 1953 are concerned, a Division Bench of this Court has held that these notifications are conditional legislation and any interference with these notifications would amount to a direction by a Writ Court, to the legislature, to legislate in a particular matter, which power does not exist with the Writ Court. This judgment has been reiterated by another Division Bench in its judgment dated 7.7.2014 passed in Special Appeal (Defective) No. 421 of 2015. The aforesaid two judgments are, in my considered opinion, a complete answer to the submissions made by the learned counsel for the petitioners.
Insofar as, the submission that Section 6 (1) is arbitrary, the same, in my considered opinion, is not liable to be accepted because sub-section 2 of this section saves all orders, which have attained finality and, therefore, it cannot be said that a litigant is deprived of the fruits of his litigation. Only orders, which have not attained finality, cease to have any value, once, the village or unit ceases to be under consolidation operations on issuance of a notification under Section 6 (1) of the Act.
The contention that once consolidation operations have been cancelled, a litigant is deprived of a forum for adjudication of disputes, is also, without substance. All disputes are required to be settled in the manner and before the forum provided for in various statutes. Once, a unit comes under consolidation operations such disputes are to be raised before the forum provided under UP Consolidation of Holdings Act, 1953. The forums earlier available, revive and can be invoked, once the consolidation operations come to a close be it by means of a notification under Section 6 (1) of the Act, 1953 or by means of a notification under Section 52 closing the consolidation operations. Therefore, it cannot be said that a litigant is deprived of a forum for resolution of pending disputes upon a notification under Section 6 (1) of the Act, being issued.
I also find the submission made that no specific procedure has been prescribed for issuing notification under Sections 6 and 4 of the Act, 1953, to be without force. The notifications are required to be published in the official Gazette, as is the case with all legislations. There exists no provision of law, which provides that a piece of legislation is to be circulated amongst the general public, for it to be valid. and, therefore, I do not find the provisions to be arbitrary or illegal.
In view of the foregoing discussion, the writ petition is found to be devoid of merits and is, accordingly, dismissed.
Order Date :- 15.11.2016 LN Tripathi