Court No. - 17
Case :- WRIT - B No. - 4822 of 2018 Petitioner :- Obaidullah Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shama Begum Counsel for Respondent :- C.S.C.
Hon'ble Rajiv Joshi,J.
Heard learned counsel for the petitioner and learned Standing Counsel.
This writ petition has been filed for issuance of mandamus commanding respondent no.2-Sub Divisional Magistrate, Tehsil-Sadar, Gorakhpur to pass appropriate order on the application of petitioner dated 30.7.2016, appended as annexure-3 within stipulated time.
From perusal of the application, it indicates that the application was filed before the Sub Divisional Magistrate for implementation of the order dated 30.03.2005 passed by the Settlement Officer Consolidation. The order of the consolidation authorities can only be implemented in the proceeding under Rule 109-A of the U.P.C.H. Rules, 1954 (hereinafter referred to as Rules) and the said power is with the consolidation authorities.
Rule 109-A of the Rules, 1954 is quoted as under:
"109A. Section 52(2). - (1) Orders passed in cases covered by sub-section (2) of Section 52 shall be given effect to by the consolidation authorities, authorised in this behalf under sub- section (2) of Section 42. In case there be no such authority the Assistant Collector, incharge of the sub-division, the Tahsildar, the Naib-Tahsildar, the Supervisor kanungo, and the Lekhpal of the area to which the case relates shall, respectively, perform the functions and discharge the duties of the Settlement Officer, Consolidation, Consolidation Officer, the Assistant Consolidation Officer, the Consolidator and the Consolidation Lekhpal respectively for the purpose of giving effect to the orders aforesaid.
(2) If for the purpose of giving effect to any order referred to in sub- rule (1) it becomes necessary to reallocate affected chaks, necessary orders may be passed by the Consolidation Officer, or the Tahsildar, as the case may be, after affording proper opportunity of hearing to the parties concerned.
(3) Any person aggrieved by the order of the Consolidation Officer, or the Tahsildar, as the case may be, may, within 15 days of the order passed under sub-rule (2), file an appeal before the Settlement Officer, Consolidation, or the Assistant Collector incharge of the sub-division, as the case may be, who shall decide the appeal after affording reasonable opportunity of being heard to the parties concerned, which shall be final.
(4) In case delivery of possession becomes necessary as a result of orders passed under sub-rule (2) or sub-rule (3), as the case may be, the provisions of Rules 55 and 56 shall, mutatis mutandis, be followed."
From perusal of the said Rule, it is apparent that only the Consolidation Officer has the right to implement the order dated 30.3.2005 passed by the Settlement Officer Consolidation.
Learned counsel for the petitioner contends that since the notification under Section 6 of the U.P.C.H. Act has been issued and therefore, the Consolidation Officer has no jurisdiction to implement its own order.
The contention of learned counsel for the petitioner is totally misconceived merely the notification under Section 6 of U.P.C.H. Act has been issued does not debar the applicability of Rule 109-A of the Rules. No such direction is to be required to the Sub Divisional Magistrate to implement the order dated 30.03.2005 passed by the Settlement Officer Consolidation.
Writ petition is totally misconceived and is, accordingly, dismissed.
Order Date :- 24.8.2018 Noman