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Daswant Ram vs Consolidation Commissioner U.P. ...

High Court Of Judicature at Allahabad|23 December, 2014

JUDGMENT / ORDER

This bunch of writ petitions involve similar controversy and can be broadly categorized into following groups.
In the first group of cases, the notifications issued under section 6(1) of the U..P. Consolidation of Holdings Act (for short, the Act), cancelling the consolidation operations in the unit are under challenge. This group includes the following writ petitions: WRIT - B Nos. - 11369, 24386, 27643, 28050, 28842, 40719, 41037, 45974, 50816, 51548, 61754 and 67061, all of the year 2014.
In the second group of cases, a mandamus has been sought, commanding the respondents to take an appropriate decision on the representations made by the petitioners therein, seeking cancellation of the consolidation operations. In this group are WRIT -B NOS. 27237, 35709, and 62775, all of 2014.
The third group consists of cases where the representations made by the villagers for canceling the consolidation operations have been rejected. In this group are WRIT -B NOS 27137 of 2010 and 28049 of 2014.
The fourth group consists of cases where recommendations have been made by the consolidation authorities for issuance of notifications under section 6(1) of the Act. These are WP Nos. 42349 and 34567, both of 2014. In these two cases, a writ of mandamus has been sought for enforcing the recommendations made.
In WP No. 26995 of 2014, the recommendation made for issuance of notification under section 6(1) of the Act has been challenged.
Under the circumstances, it would be appropriate to consider the aforementioned categories of cases separately.
In the first group of cases, the argument is that the notifications under section 6(1) are not in consonance with Rule 17 of the Rules framed under the Act. The second contention raised is that the consolidation operations have been largely completed and, therefore, the same should not be canceled. It has also been argued that the notifications, canceling the consolidation operations, can be issued only when the conditions specified in Rule 17 are made.
As far as the argument regarding non-compliance of the conditions enumerated in Rule 17 of the Rules is concerned, it would suffice to state that the conditions enumerated in Rule 17 are only illustrative and not exhaustive as is clear from a bare reading of the rule itself, which provides that "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, ...".
Besides, this submission has already been considered and decided by the judgement passed by me in a bunch of cases, while sitting in Lucknow Bench, wherein the leading case was Writ (Consolidation) No. 535 of 2013: decided on 13.3.2014. By this judgement, relying upon a Division Bench decision reported in 1976 RD 35: Industrial Syndicate Ltd. Versus State of U.P. it has been held that the notifications issued under section 6(1) of the Act are conditional legislation and, therefore, can be challenged only on the grounds available for challenging any piece of legislation. No such ground has been raised in any of these writ petitions, and, therefore, they are liable to be dismissed in view of the earlier decision noted above.
One of the additional submissions made in the Writ Petition No. 28842 of 2014 is that the notification under section 6(1) of the CH Act is cryptic and does not assign any reason; therefore, such an action is not justified in a welfare State and also because the UP Consolidation of Holdings Act is a welfare legislation, enacted to consolidate fragmented holdings of tenure-holders so as to enhance agricultural productivity and to make the agricultural operations more convenient and simpler. In my considered opinion, this ground, though prima facie attractive, cannot be accepted in view of the ratio in the case of Industrial Syndicate Ltd. Vs. State of U.P., reported in 1976 RD 35 wherein it has been held that no reasons are required to be assigned while issuing a notification under section 6(1) of the Act.
The second ground taken is that the notification has been issued by the Director of Consolidation, whose powers are defined under section 3(4) of the Act. The power to issue a notification under section 6(1) is with the State Government. There is no provision under the Act whereby the State Government is authorized to delegate its powers to the Director of Consolidation and, therefore, the impugned notification is without jurisdiction.
A perusal of the impugned notification shows that the powers under section 6(1) of the Act have been delegated by means of a notification issued in the year 1956. This notification, delegating the power to the Director of Consolidation, has been specifically mentioned in the impugned notification, but has not been challenged in the writ petition and, therefore, there is no justification to consider this argument raised on behalf of the petitioner.
In the second category of cases, recommendations for cancelling the notifications under section 4 have been made by the consolidation authorities and such recommendations are sought to be enforced by issuance of a writ of mandamus. The Division Bench decision in the case of Industrial Syndicate Ltd. (supra), has held that notifications under section, especially under sections 4 and 6(1) of the U.P. Consolidation of Holdings Act are conditional legislation, and any direction by a writ court in this regard would amount to directing the legislature to legislate in a particular manner, which is not permissible. For this reason alone, no mandamus can be issued by this Court. Therefore, the writ petitions wherein mandamus has been prayed for are liable to be dismissed.
In the Writ Petition No. 61754 of 2014, the grievance of the petitioner therein is that the consolidation authorities had recommended that the consolidation operations be not cancelled, yet the notification under section 6(1) of the Act was issued. Since the notification has been issued contrary to the recommendation of the local consolidation authorities, the same is liable to be quashed.
As already noticed above, the notification under section 6(1) of the Act is a piece of conditional legislation. It is within the competence of the legislature to legislate in the manner it thinks appropriate. In my opinion, such conditional legislation can be challenged either on the ground of lack of legislative competence or on the ground that it is ultra vires. No such plea has been raised in the writ petition and, therefore, it is liable to be dismissed. For the same reason, this Court is not competent to issue a mandamus directing the State Government to cancel the notifications issued under section 6(1) of the Act, nor directions can be issued to the State Government to issue a notification under section 6(1) and cancel the consolidation operations. Therefore, the relief for mandamus is misconceived and no such mandamus can be issued by this Court.
In the last group of cases, the recommendations made by the consolidation authorities have been challenged. A recommendation, in any case, is a mere recommendation and it is for the authorities concerned to either act in accordance with the recommendations or to take a decision contrary to what has been recommended. The recommendation is, at best, an opinion of the authority concerned keeping in mind the facts and circumstances prevalent in the unit. It is made only to aid the State Government in taking an appropriate decision in the matter and, therefore, in my considered opinion, the same is not open to judicial review. Moreover, in case such a recommendation is interfered with, it would again amount to issuing directions to the State Government to issue a conditional legislation in a particular manner, which, as already observed, the Court is not competent to do.
It would be appropriate to notice the facts and arguments in WP No. 67061 of 2014. In the instant case, it has been argued that the consolidation operations were cancelled on the ground that a part of the land of the unit was covered by a notification under section 3 of the Municipalities Act. It is for this reason that the consolidation operations were cancelled as the same land cannot be subject-matter of notifications both under section 3 of the Municipalities Act and section 4 of the UP CH Act.
Learned counsel for the petitioners does not dispute this position. His submission is that the notification under section 3 of the Municipalities Act pertained to only a part of the land of the unit, and did not pertain to the entire unit. He has, therefore, submitted that the consolidation operations should have been cancelled only with regard to area covered under section 3 of the Municipalities Act and that there is no justification for cancelling the consolidation operations as regards the remaining area. Relying upon Rule 17, learned counsel for the petitioner has submitted that the State Government is empowered to cancel a notification under section 4 of the CH Act either as a whole or as regards a part or parts of the area under such notification.
Sri Sanjai Goswami, learned Addl. Chief Standing Counsel, has, on the contrary, submitted that the notification under section 4 has been cancelled also on account of the fact that a highway divides the village in two parts. As a result thereof, and on account of this highway being an important one, which is a bye-pass known as the Sultanpur-Banaura-Mau-Gorakhpur Bye-pass, the value of the land in the unit has increased considerably and in case the consolidation operations are conducted, it would result in compulsory five percent reduction in the area of each tenureholder, as is mandatory under the Act. This, in turn, will result in a huge financial loss to the tenureholders. He, therefore, submits that the notifications have been issued for cogent reasons and, therefore, should not be interfered with. He has, lastly, submitted that in in any case the State Government is not required to assign any reason for issuing the notifications in view of the law laid down by the Division Bench in the case of the Industrial Syndicate Ltd. (supra).
In rebuttal, learned counsel for the petitioner has submitted that the petitioner is aggrieved because he apprehends that the proceedings that have attained finality during the consolidation operations would also be set at naught by the cancellation of the consolidation operations by the notification under Section 6(1) of the Act.
It, therefore, emerges from the submissions made that the petitioner is aggrieved by the impugned notification only because certain benefits, which have accrued to him during the currency of the consolidation operations and which are alleged to have attained finality, will stand reversed. This apprehension of the petitioner is entirely misconceived because all disputes that have attained finality prior to the cancellation of the consolidation operations stand protected by sub-section (2) of section 6. This writ petition has, therefore, been filed on a misconception of law and on mere apprehension. It, therefore, deserves to be dismissed.
In so far as the Writ Petition No. 27137 of 2010 is concerned, a writ of certiorari has been sought for quashing the order dated 15.1.2010 passed by the Consolidation Commissioner, as also for quashing the consolidation proceedings.
A perusal of the order impugned in this petition indicates that a representation made by the petitioner has been rejected on the ground that the petitioner is seeking cancellation of the consolidation operations which have been closed long back by issuance of notification under section 52(1) of the Act.
Learned counsel for the petitioner has not been able to point out anything from the record which would show that this reasoning is in any way vitiated, or is factually incorrect. This Court is, therefore, constrained to hold that this writ petition is entirely misconceived and merits dismissal.
Accordingly, and for the reasons given above, as also the reasons given in the judgement passed in Writ Petition (Consolidation) No. 535 of 2013, decided by me at Lucknow Bench, on 31.3.2014, all the writ petition in this bunch are dismissed.
Two writ petitions, namely, Writ -B No. 15297 of 2014 and Writ-B No. 48014 of 2014, have wrongly been shown as connected with this bunch of cases and, therefore, they are being de-tagged from this bunch. They will be decided along with the bunch of cases to which they relate.
Order Date :- 23.12.2014 sks-grade iv
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Title

Daswant Ram vs Consolidation Commissioner U.P. ...

Court

High Court Of Judicature at Allahabad

JudgmentDate
23 December, 2014
Judges
  • Anjani Kumar Mishra