1. Heard learned counsel for the petitioner and learned Standing counsel appearing for the State-respondents.
2. The present petition has been filed praying for quashing the order dated 16.10.2020 passed in Case No. 1452/1453 Inre; Ram Sajivan Vs. Kalawati filed under Section 34 of the Uttar Pradesh Revenue Code, 2006 (hereinafter referred to as "Code, 2006") in so far as denial of mutation in accordance with the order dated 28.03.2001 passed in Case No. 364 Inre; Ram Sanjivan Vs. Kalawati filed under Section 12 of the Uttar Pradesh Consolidation and Holdings Act, 1953. Certain other prayers have also been made in the present petition.
3. A preliminary objection has been taken by the learned Standing counsel that as the order has been passed under the provisions of Section 34 of the Code, 2006 by the Tehsildar concerned, consequently considering the provision of Section 35 (2) of the Code, 2006, as the petitioner is aggrieved by the said order, he has got a remedy of filing an appeal before the Sub Divisional Officer.
4. To the said preliminary objection, learned counsel for the petitioner contends that he is not aggrieved by the entire order rather he is only aggrieved so far as mutation of the order dated 28.03.2001 which has been passed in Case No. 364 Inre; Ram Sanjivan Vs. Kalawati has not been made by the authority concerned.
5. Learned counsel for the petitioner argues that in this view of the matter, the present petition would be maintainable.
6. In this regard, learned counsel for the petitioner has placed reliance on the judgments of this Court in the cases of Sudhir Kumar Goswami Vs. District Director of Consolidation reported in [2011 (29) LCD 1963], Madan Shah and ors Vs. Deputy Director of Consolidation reported in [2007 (25) LCD 844] and an unreported judgment passed in Consolidation No. 5237 of 2017 Inre; Rajendra Prasad Dixit and ors Vs. State of U.P and ors decided on 23.03.2017 to contend that the present writ petition would be maintainable against an order passed under Section 34 of the Code, 2006. Reliance has also been placed on a D.O letter dated 12.12.2014 issued by the Consolidation Commissioner, a copy of which is annexure 6 to the petition.
7. Heard learned counsel for the petitioner, learned Standing counsel and perused the records.
8. A perusal of record would indicate that the order impugned in the present petition is an order dated 16.10.2020 passed by the Naib Tehsildar under the provisions of Section 34 of the Code, 2006. A statutory remedy is available to the petitioner, in case he is aggrieved by the said order, of filing of an appeal under the provision of Section 35 (2) of the Code, 2006. Thus, the contention of learned counsel for the petitioner that he is not aggrieved by the entire order rather he is only aggrieved so far as denial of mutation in accordance with an order dated 28.03.2001 has been done and thus, the present petition would be maintainable is patently misconceived more particularly when quashing of the order under Section 34 of the Code, 2006 has been prayed for in this present petiton. The case under Section 34 of the Code, 2006 had been filed by the petitioner, as would be apparent from the cause title of the case itself i;e Ram Sajivan Vs. Kalawati. In the present petition, the petitioner has prayed for quashing of the said order dated 16.10.2020 meaning thereby that he is aggrieved by the said order, consequently once a remedy under Section 35 (2) of the Code, 2006 is available to the petitioner there would not be any occasion for this Court to entertain the present petition.
9. So far as the judgment in the case of Sudhir Kumar Goswami (supra) is concerned that was a case in which a revision had been rejected by the Consolidation Officer aggrieved against which the petitioner had filed the petition before this Court.
10. In the case of Rajendra Prasad Dixit (supra) the point involved in the petition was as to whether the order of Consolidation Officer stood protected by the virtue of Sub Section (2) of Section 6 even after a notification of cancellation under Section 6 (1) of the U.P.Consolidation of Holdings Act, 1953. Thus, it was not an order under Section 34 of the Code, 2006 which had been challenged in the case of Rajendra Prasad Dixit (supra).
11. So far as the case of Madan Shah (supra) is concerned that was a case whereby the petition had been filed challenging the order of the Deputy Director of Consolidation. Again the said order was not an order passed under Section 34 of the Code, 2006 and thus in all the three cases the question, as has been raised in the preliminary objection raised by the learned Standing counsel was not involved. Hence, the said judgments would not be applicable in the facts of the present case. So far as the D.O dated 12.12.2014 is concerned, again the same does not pertain to an order which may have been passed under the provision of Section 34 of the Code, 2006.
12. Considering the aforesaid discussion made above, the present petition is dismissed.
13. However, dismissal of the present petition would not preclude the petitioner from availing the other remedies that may be available to him against the impugned order.
Order Date :- 4.2.2021 Pachhere/-