Allahabad High Court
Abhishek Singh vs State Of Up And 4 Others on 23 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:70655 Court No. - 48 Case :- WRIT - B No. - 1147 of 2024 Petitioner :- Abhishek Singh Respondent :- State Of Up And 4 Others Counsel for Petitioner :- Arvind Kumar Trivedi,Jitendra Singh Counsel for Respondent :- C.S.C. Hon'ble Chandra Kumar Rai,J.
1.Heard Mr. Jitendra Singh, learned counsel for the petitioner and Mr. T.P. Gupta, learned Standing Counsel for the State-respondents.
2.Brief facts of the case are that Village-Teni, Tehsil-Khaga, Pargana-Hathgaon, District-Fatehpur has been brought under consolidation operation by way of notification dated 29.08.2023 issued under Section 4 of U.P. Consolidation of Holdings Act, 1953 hereinafter referred to as U.P.C.H. Act. Petitioner along with other villagers of the village in question have filed a representation dated 23.12.2023 before Consolidation Commissioner, as well as other authorities for withdrawal of the consolidation operation in the village in question as majority of the villagers are satisfied with the allotment of chak etc but authorities are sitting tight over the matter, hence this writ petiion on behal of petitioner for following relief:
"(1) a writ order or direction in the nature of mandamus commanding/ directing the respondents (specially respondent no.2) to consider and decide the petitioner's representation dated 23.12.2023 (Annexure No.6 to the writ petition) qua withdrawal of Consolidation proceedings unexercised of powers under Section 6 (1) of the U.P.C.H. Act, 1963, within stipulated period granted by this Hon'ble Court. The Hon'ble Court may further be pleased to stipulate the period."
3. Learned counsel for the petitioner submitted that majority of tenure holders are not interested in consolidation operation in the village in question, as such representation dated 23.12.2023 has been filed before the authorities but authorities including consolidation Commissioner are not considering the representation of the petitioner. He further submitted that consolidation Commissioner be directed to consider the representation of the petitioner in accordance with law.He further placed the copy of certain orders passed by this Court in which this Court has directed that petitioner can file application before Consolidation Commissioner which will be decided in accordance with law.
4. Mr. T.P. Gupta, learned Standing Counsel for the State-respondents submitted that writ petition is not maintainable for the relief claimed in the writ petition in view of the ratio of law laid down by this Court from time to time.
5. I have considered the arguments advanced by the learned counsel for the parties and perused the record.
6. In order to appreciate the controversy involved in the matter the perusal of Section 4 & 6 of U.P.C.H. Act and Rule 17 of U.P.C.H.Rules will be relevant which are as under:
Section [(4) Declaration and notification regarding consolidation. -
(1)(a) The State Government may, where it is of opinion that a district or part thereof may be brought under consolidation operations, make a declaration to that effect in the Gazette, whereupon it shall become lawful for any officer or authority who may be empowered in this behalf by the District Deputy Director of Consolidation -
(i) to enter upon and survey, in connection with rectangulation or otherwise, and to take levels of any land in such area;
(ii) to fix pillars in connection with rectangulation, and;
(iii) to do all acts necessary to ascertain the suitability of the area for consolidation operations.
(b) The District Deputy Director of Consolidation shall cause public notice of the declaration issued under clause (a) to be given at convenient places in the said district or part thereof.
(2) (a) When the State Government decides to start consolidation operations, either in an area covered by a declaration issued under sub-section (1) or in any other area, it may issue a notification to this effect.] [(b) Every such notification shall be published in the Gazette and in a daily newspaper having circulation in the said area and shall also be published in each unit in the said area in such manner as may be considered appropriate.] 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 cancelled 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."
7. This Court in the case reported in 1999 (4) AWC 2788 Sazid and others vs. Commissioner of Consolidation and others has held that Court should not take over the task of examining the validity of the notification issued under Section-4 of the U.P.C.H Act.
8. This Court in another case reported in 2016 (131) RD 478 Jasmit Singh and others Vs. State of U.P. and others has considered the provisions of Section 4 and 6 of U.P.C.H Act as well as Rule 17 of U.P.C.H Rules and held that Conditions enumerated under Rule-17 of UP.C.H, Rules are mere guidelines and the same are not mandatory. Paragraph Nos. 26, 29 and 30 of the judgment rendered in Jasmit Singh (Supra) will be relevant for perusal which is as under:
"26. In my considered opinion, consideration of the representations made, if any, would be required only if the Act provided for such a representation. Besides, the Division Bench in the case of Agricultural and Industrial Syndicate Limited (supra) has held that the notifications under Sections 4 and 6 are conditional legislation. It is true that an authority which has the power to legislate on an issue may take recourse to consultation with the public at large. However, there is no mandatory requirement that the legislation must be made only after due consultation of the public at large or that it should specify the reasons for legislating one way or the other.
29. 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.
30. 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 of 2015, 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 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."
9. In view of ratio of law laid down by this Court in the Case of Jasmit Singh (Supra) there is no scope of interference by this Court to exercise jurisdiction under Article 226 of the Constitution of India in respect to withdrawal of consolidation operation in the village in question by way of writ of mandamus to consider the petitioner's application for issuing notification under Section 6 (1) of U.P.C.H. Act.
10. Writ petition filed by petitioner is misconceived and dismissed accordingly.
Order Date :- 23.4.2024 PS*