Allahabad High Court
Sohanvir Singh Bamal And 9 Others vs State Of U.P. And 5 Others on 7 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 18 Case :- WRIT - B No. - 1293 of 2020 Petitioner :- Sohanvir Singh Bamal And 9 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Sharad Chand Rai,Vinay Kumar Srivastava Counsel for Respondent :- C.S.C.,Azad Rai,Sunil Kumar Singh Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Anil Kumar Aditya, Advocate along with Mr. Vinay Kumar Srivastava, Advocate for the petitioners, learned Standing Counsel for the State-respondents and Mr. Azad Rai for respondent No.6, Gram Panchayat.
2. The instant writ petition has been filed for quashing the order dated 06.08.2020, passed by the Consolidation Commissioner, U.P. Lucknow/respondent no.2.
3. Brief facts of the case are that Village-Sikandarpur, Kakodi, District-Hapur came under first consolidation operation through notification under Section 4 of U.P. Consolidation of Holdings Act on 22.4.1972 and Village was denotified under Section 52 of U.P.C.H. Act on 15.9.1979. The Village-Sikandarpur, Kakodi, District Hapur again came under consolidation operation through notification under Section 4 of U.P.C.H. Act on 2.8.2014. Petitioners along with other villagers submitted a representation before the District Magistrate as well as before Consolidation Commissioner on 17.9.2019 and 1.1.2020 for cancellation of consolidation proceeding in the village as there is no requirement of consolidation in the village. Petitioners filed a writ B No. 668 of 2020 before this Court for cancellation of consolidation in the village in question which was disposed of by this Court vide order dated 5.3.2020 directing the Consolidation Commissioner to decide the petitioners' representation within period of three months from the date of filing of representation along with certified copy of the order. In pursuance of the order of this Court, Consolidation Commissioner considered the petitioners' representation dated 8.3.2020 and rejected the same vide order dated 6.8.2020. Hence this writ petition for the following reliefs:-
"(i) Issue a writ, order or direction in the nature of certiorari calling for the records of the case and quashing the impugned order dated 6.8.2020, passed by respondent No.2, Consolidation Commissioner, Uttar Pradesh Government, Lucknow (Annexure No.11 to the writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to cancel the consolidation proceedings pertaining to Village Sikandarpur Kakodi, Tehsil, Hapur within stipulated time as may be fixed by this Hon'ble Court.
(iii) Issue any other writ, order or direction in the nature of writs, as this Hon'ble Court may deem fit and proper, to meet the ends of justice.
(iv) Award the cost of this writ petition to the petitioners.
(v) Issue a writ, order or direction in the nature of certiorari to quash the alleged report dated 29.7.2020, after summoning from the respondent authority."
4. Counsel for the petitioners submitted that on the basis of the alleged ex-parte report dated 29.7.2020 of District Magistrate/ Deputy Director of Consolidation impugned order has been passed by Consolidation Commissioner without affording opportunity of hearing to the petitioners. He further submitted that under the order of this Court by which the earlier petition was disposed of, direction was issued to decide the petitioner's representation after affording proper opportunity of hearing but proper opportunity of hearing has not been accorded and the impugned order has been passed. He further placed reliance upon Rule 17 (b) & (c) of the U.P. C.H. Rules and on the basis of the provisions contained under Rule 17(b) & (c) of the U.P. C.H. Rules, counsel for the petitioners submitted that there was no necessity for putting the village under consolidation, as such, the impugned order rejecting the representation of the petitioners is wholly illegal. Counsel for the petitioners further submitted that most of the villagers are not interested in the consolidation operation in pursuance of the notification issued under Section 4 of the U.P. C.H. Act but Consolidation Commissioner has not considered the same and arbitrarily rejected the representation filed by the petitioners.
5. On the other hand, learned standing counsel submitted that in the Village, at present, consolidation proceeding is going on and against the proposed Consolidation Scheme, 46 regular and 143 time barred total 189 objections have been concluded by the Consolidation Officer. He further submitted that at present 13 chak appeals are pending before the Court of Settlement Officer Consolidation, as such, the villagers are participating in the consolidation process. He further submitted that in the Village after about 40 years, second consolidation is going on. However, after a long period of time there being extension of Abadi and for development works, as per the demand of the villagers for various public purposes, in the consolidation process the lands have been reserved. Along with it, encroachment upon the land of Gram Sabha specifically Nali and Chak Marg are being got vacant through consolidation process. There is no suitable reason for protest of consolidation. He further submitted that in pursuance of the order of this Court, the Consolidation Commissioner has considered each and every aspect of the case as well as the provisions of the U.P. C.H. Act and Rule 17 of U.P.C.H. Rules and considering the every grievance set up in the representation and replying the same in the impugned order, has rejected the representation/application holding that the consolidation operation is the only remedy by which the grievance of the villagers can be redressed. He further submitted that no interference is required against the impugned order in exercise of jurisdiction under Article 226 of the Constitution of India, as such, writ petition is liable to be dismissed.
6. I have considered the arguments advanced by learned counsel for the parties and perused the records.
7. There is no dispute about the fact that the village in question was brought under consolidation operation by way of notification under Section 4 of the U.P. C.H. Act. There is also no dispute about the fact that the representation filed by the petitioners, has been rejected holding that consolidation operation cannot be cancelled as claimed by the petitioners in his representation.
8. In order to appreciate the controversy, the provisions contained in rule 17 of the U.P. C.H. Rules will be relevant which is quoted hereunder:-
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.
9. This Court in Jasmit Singh and Others vs. State of U.P. and Others, reported in 2016 (131) RD 478 has considered the scope of notification under Sections 4 and 6 of U.P.C.H. Act as well as Rule 17 of the U.P. C.H. Rules and has held that provisions of Rule 17 are not mandatory in nature and the notification under Sections 4 & 6 are conditional legislation , as such, no interference can be made in exercise of jurisdiction under Article 226 of the Constitution of India. Paragraph nos. 29, 30 & 31 of the judgment are quoted hereunder:-
"29. 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.
30. I therefore see no justification for referring this issue for consideration by a larger Bench.
31. Accordingly and in view of the above, the writ petition is found to be devoid of merits and is dismissed."
10. In the case of Dalip Singh and Others vs. Vikram Singh and Others, (2015) 128 RD 666, this Court has held that the notification under Section 4(1) & 6(1) are legislative in nature and no tenure holder can claim any right, title or interest upon the land allotted to him until possession over the same have not been delivered to him.
11. This Court in Raja Ram Ojha vs. Consolidation Commissioner, U.P., Lucknow and Others, reported in (2015) 126 RD 124 has held in paragraph 21 as under:-
"21. In view of the aforesaid discussion and for the reasons given above, there appears no justification for quashing the impugned notifications which are conditional legislation and not policy decisions. Conditional legislation or any legislation can be questioned only on the ground of being ultra vires, on the ground of lack of competence or on the ground of unreasonableness. No such ground has either upon pleaded or urged before me. The factual issues raised that a very small area of the village is under agricultural operations or that consolidation operations have been cancelled on account of a single interim order of this Court it would suffice to record that all these are issues to be considered by the concerned authority whose subjective satisfaction is required before cancelling the consolidation operations. No material has been placed to show that the impugned notifications have been issued without the authority having been satisfied that it was expedient to cancel the consolidation operations."
12. In the instant case, the Consolidation Commissioner while passing the impugned order has considered each and every aspect of the matter as well as the points set up in the representation has been answered point-wise while rejecting the representation, as such, it cannot be said that proper opportunity has not been afforded to the petitioners. Paragraph No. 5/operative portion of the impugned order dated 6.8.2020 is relevant for perusal which is as under :-
5- ??? ???? ???????? ?????? ??? ?????? ?????????-668/2020 ??? ????? ???? ?????? 05.03.2020 ???? ??????? ???? ???? ??? ?????? ?????? ???????? ??????????? ?????? 08.03.2020 ??? ??????? ??? ??????? ??????????/???? ?? ?????? ???????, ?????? ?? ????? ?????? 29.07.2020 ?? ??????? ???? ?? ???? ??? ?? ???????? ????? ??? ??? ??????? ???? ???? -11????? ?? ????? ???? ?? ??? ??? ?????? ??????? ???? ??????? ????? ?? ???? ??? ???? ??, ?????? ???? ?????? ??????? ?? ????? ????? ?? ???? ?? ???? ?? ??? ?? ?? ????? ??? ??? ??????? ?? ?????? ?? ???? ??????? ? ???? ?? ?? ??????? ???? ???? ????? ?? ????? ??? ?????? ???? ???? ??? ??????? ????????? ?? ?????? ?????? ?????? ???????? ?? ???? ??? ????? ?????? ?? ???? ?? ???? ?????/???????? ???? ???? ??? ????? ??? ???????, ???????? ??? ???? ???? ?????? ? ???? ?? ?????? ????? ???, ????? ???? ????? ???? ?? ?????? ?? ?????? ??? ??? ???? ??? ?? ??????? ????????? ?? ????? ???? ???? ????? ?????? ???? ??????? ???? ???? ? ???? ?????? ???? ??????? ?????? ?????? ???????? ? ????? ?????? ?? ???? ?? ???? ?????/???????? ???? ??? ??? ??????????/???? ?? ?????? ???????, ????? ?????? ??????? ????? ??? ?? ?????? ?? ??????????? ?? ???? ?????/???????? ?? ????? ?? ?? ?????? ??? ??????? ???? ?? ???????? ?? ???????? ???? ?? ???? ?????? ???? ??? ???? ?????/???????? ?? ???? ?? ??????? ????????? ?? ??? ????? ???? ?? ????? ???????? ?? ??? ??? ??? ?????? ??? ????? ?? ??????? ????????? ???? ???? ?? ????? ?? ???? ?????? ??? ???????? ? ????? ???? ?? ?????? ?? ???? ?? ???? ????? ?? ????????? ??????, ?? ????? ?? ????????? ????? ??? ???? ????? ????? ?? ??????? ????????? ???? ???? ???????? ? ????? ???? ?? ?????? ?? ??? ??? ??? ??? ?????/???????? ?? ??? ?? ????? ??? ???? ???? ?????- ?????????? ??????, ????? ? ????- ?????? ??? ??????? ????????? ?? ??????? ??? ?? ??? ?????? ???? ?? ??????? ???? ???? ???
????????????? ???? ??????? ???? ???? ??? ?????? ?????? ???????? ??????????? ?????? 08.03.2020 ?? ????????????? ????????? ???? ???? ???
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13. Considering the entire facts and circumstances as well as the ratio of law laid down by this Court in Jasmit Singh (supra), Dalip Singh (supra) and Raja Ram Ojha (supra), no interference is required against the impugned order.
14. The writ petition is dismissed.
Order Date :- 7.4.2023 Vandana Y.