Allahabad High Court
Jai Narain Chauhan vs Consolidation Commissioner U.P. ... on 12 December, 2018
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 9 Case :- WRIT - B No. - 32590 of 2014 Petitioner :- Jai Narain Chauhan Respondent :- Consolidation Commissioner U.P. Lucknow & 2 Others Counsel for Petitioner :- Sheo Ram Singh,Rajesh Maurya Counsel for Respondent :- C.S.C. Hon'ble Anjani Kumar Mishra,J.
1. This writ petition has been filed by the petitioner seeking the following relief:
"I) issue, a writ, order or direction in the nature of Mandamus commanding the respondent no. 3 to ensure the execution of delivery of possession to the tenure holders over the holdings of village Khemajit Pargana Chiraiya Kote, Tehsil Sadar, District Azamgarh as per final Consolidation Scheme in the period so stipulated by this Hon'ble Court."
2. On the petition being filed in the year 2014, vide order dated 17.07.2014, learned Standing Counsel had been granted two weeks' time to obtain instructions.
3. The matter next came up before the Court on 26.10.2018 more than four years thereafter. The Court finding that no instructions had been received by learned Standing Counsel, directed the Deputy Director of Consolidation, Azamgarh to be present before the Court on 20.11.2018 alongwith his personal affidavit and original records to inform the Court as to whether delivery of possession had been affected in the unit.
4. A personal affidavit sworn on 17.11.2018 has been filed on 29.11.2018, on which date Sri Ramesh Chand Yadav, Deputy Director of Consolidation, Azamgarh had also appeared in person before the Court. Another personal affidavit of the said, Ramesh Chand Yadav, Deputy Director of Consolidation, Azamgarh sworn on 07.12.2018 is also available on record, wherein it has been stated that the unit was brought under consolidation operations by means of a notification under Section 4 (2) of the U.P. Consolidation of Holdings Act, issued on 21.04.2004. Publication under Section 9 of the Act was made on 04.07.2007 and the publication under Section 20 of the Act was made on 19.07.201. It has been stated that the chaks were confirmed in the unit, on 25.03.2012.
5. In paragraph 3 of the affidavit it has been stated that delivery of possession could not be completed due to strong opposition by tenure holders of the village
6. In paragraph 4, it has been stated as follows:
"That thereafter, since 2013, after harvesting the Rabi Crops the Consolidation Authorities have tried to make delivery of possession of the chaks of the tenure-holders on the spot but it could not be taken place due to strong opposition of the tenure-holders who have said collectively that if the authorities would implement the proceeding for delivery of possession of chaks by force then there would be arised a major problem of law and order."
7. Along with this affidavit, certain orders passed by the Writ Court disposing of similar writ petitions have been annexed. These writ petitions have been disposed of in the year 2014 with direction that if needed, requisite force be employed for assisting the consolidation authorities for affecting delivery of possession.
8. In paragraph 8 of the affidavit, it has been stated that the Consolidation Committee has passed a resolution that any delivery of possession will entail huge loss to the tenure holder.
9. In paragraph 9, it has been stated that efforts were made to affect delivery of possession of chaks in the year 2015, 2016, 2017 and 2018.
10. It is, therefore, writ large on the face of record that the notification required to be issued under Section 24 of U.P. Consolidation of Holdings Act, informing the date wherefrom, tenure holders are entitled to enter into possession over the chaks proposed and allotted to them, has not been issued.
11. Under law, it is only after this notification, specifying the date on which the consolidation Scheme comes into force, is issued, a tenure-holder is entitled to enter into possession over his chak. In case he is unable to obtain possession, he has a window of six months, thereafter, to make an application to the A.C.O. for being put in possession over his chak. When such application is filed, the applicant is required to put him in possession, exercising all powers exercisable by the Civil Court while executing a decree for delivery of possession of immovable property, as is provided under Section 28 of the Act. Once this window of six months expires, every tenure-holder is deemed to have obtained actual physical possession of the chak allotted to him.
12. Rule 54-A provides that before the date from which the final consolidation scheme comes into effect, is notified under Section 24 of the Act, it is the duty of the Settlement Officer, Consolidation to satisfy himself that boundary lines of chaks have been demarcated as per the final consolidation scheme.
13. The date to be notified under Section 24 of the Act has not been notified by the consolidation authorities in the case at hand, as observed above.
14. The Consolidation Authorities have, therefore, failed to perform then statutory duties and for reasons best known to them are transferring the blame of such inaction upon the villagers on the plea that the villagers are not permitting delivery of possession.
15. It would, however, be relevant to note that in similar petitions various orders of the writ Court, passed right from the 2015 have not been complied with. The consolidation authorities are, therefore, in clear contempt of orders of the High Court. It would also be relevant to note that this is a continuing contempt.
16. Although an averment had been made that attempts have been made right from the year 2015, every year, to affect the delivery of possession, this averment in the facts and circumstances of the case, is a mere eyewash.
17. The U.P. Consolidation of Holdings Act was enacted with the purpose of consolidating scattered holdings of tenure-holder to make such holding more viable for agricultural operations.
18. Today this court finds that the prices of land have sky rocketed even in rural areas. The size of agricultural holdings are shrinking with each passing generation because the same parcel of land gets divided amongst the successors of the original tenure-holder. Moreover, since the land prices have escalated dramatically, it is rarely feasible for an agriculturist to procure a large tract of land, through sale.
19. This Court has also encountered numerous writ petitions wherein allegations of arbitrariness have been raised against the consolidation authorities. Large number of writ petitions have been filed on the the ground that the provisions of the U.P. Consolidation of Holdings Act are being misused by politicians and other politically powerful members of the rural communities for securing private ends, under the garb of consolidation operations. Such persons get notifications issued bringing villages under consolidation operations, and in the ensuing proceedings, the prime land in the units gets allotted to powerful persons while the disadvantaged sections of agriculturists are shifted to comparatively infertile and commercially inconsequential lands.
20. However, be that as it may, once an enactment has been enforced by the State Government, the same has to be enforced in its totality. The State Government or its functionaries cannot take a plea that they are unable to implement the provisions of an enactment which is in force. Such a plea can only mean two things; either the functionaries of the State, the Consolidation Authorities, included, are incompetent or else they are not performing their statutory duties, probably at the behest of their political masters. Such a situation cannot be allowed to continue.
21. Besides, there are numerous instances where taking shelter of alleged opposition to delivery of possession by villagers, notifications have been issued by the State Government/Consolidation Commissioner, in exercise of powers conferred by Section 6 (1) of the Act, canceling consolidation operations. Such action, again, is no solution because the consolidation authorities while doing so, fail to comprehend the implication of sub-Section 2 of Section 6 of the Act, which provides that despite cancellation of consolidation operations, any matter which has attained finality before consolidation operations are canceled, shall have to be implemented. The effect is that there would be numerous instances where chak allotments have become final prior to cancellation operations, which in every case have to be implemented by the authorities. Hence, issuance of notifications under Section 6 (1) of the Act, which is being frequently resorted to by the consolidation authorities, is not a remedy, but mere abdication and/or failure to exercise/perform their statutory duties.
22. Moreover, such abdication of authority is at a huge cost, both to the exchequer as also to individual tenure-holders, who have to face litigation, forced upon them by the provisions of the U.P. Consolidation of Holdings Act. This cost is both in terms of time spent as also in financial terms which includes cost of litigation. The State and consolidation authorities, by their inaction or misplaced actions are ultimately seeking to deprive the tenure-holders of the fruits of their labour and financial resources, expended in such forced litigation.
23. Let a copy of this order be given to learned Standing Counsel for onward transmission to the Principal Secretary, Revenue, Government of U.P., Lucknow inviting his comments. The Principal Secretary shall respond as to why the State Government, if it is totally incompetent and incapable of implementing a particular enactment, is continuing to enforce the same in the State of U.P. and whether under the prevailing circumstances, there exists any other option but to repeal the enactment, itself.
24. Put up this case in the additional cause list on 21.12.2018 for compliance and further hearing.
Order Date :- 12.12.2018 Kamarjahan