JUDGMENT S.N. Srivastava, J.
1. Challenge in this petition is focused on the order dated 2.9.2005, whereby Director, Consolidation, U.P. rescinded the Notifications dated 1.8.1986 and 8.9.1991 having been issued under Section 4(2)(a) of the U.P. Consolidation of Holdings Act for commencement of the consolidation of the area relating to two villages namely, village Jakhangaon Tahsll Mathura and village Fodar Tahsil Mathura.
2. The petition was called on 11.5.2006 and the same day, by an order of the Court dated 11.5.2006, learned standing counsel was directed to seek instructions from respondents forthwith and the case was listed for 16.5.2006. No counter-affidavit was filed on 16.5.2006 on behalf of Director of Consolidation and instead, the learned standing counsel furnished all the requisite information by producing entire material as received from the office of Director of Consolidation and the same was ordered to be placed on record,
3. A brief resume of necessary facts filtering out unnecessary details, as collected from the papers furnished by the learned standing counsel before the Court, is that vlllage Jakhangaon situated within the circle of Tahsil Mathura was notified under Section 4(1)(a) on 26.10.1991, while village Fodar falling within the circle of Tahsil Mathura was notified for commencement of consolidation proceeding on 23.8.1986. Thereafter records were published under Section 8 of the Act on 31st October, 1994, followed by final records prepared and published on 12th October 1995. It would further transpire from the record that chak allotment proceedings were embarked upon followed by publication of record on 26.2.1996 and thereafter, provisional scheme of chak allotment proceedings came to be confirmed on 1.9.1996. In so far as village Fodar is concerned, notification under Section 4(1)(a) of the Act was issued on 23.8.1986 and final records were published on 24.10.1989 and thereafter chak allotment proceedings were confirmed and published on 20.5.1995. From a further scrutiny of the record, it would appear that a resolution was passed in the matter by the Land Management Committee containing signatures of certain villagers whereby further consolidation proceedings were sought to be rescinded. It would further appear from the record that consolidator and consolidation Lekhpal submitted a report and on the basis of that report, the District Magistrate/District Deputy Director of Consolidation transmitted a report to the Director of Consolidation the text of which is that on account of objection to continuance of consolidation proceeding by the village people, the authorities were not getting cooperation for carrying out further consolidation operation in the village and as a result, the further consolidation proceedings were stymied. Likewise, in the matter of village Jakhangaon, similar view was articulated and ultimately all the papers were transmitted to the Director of Consolidation alongwith proposal for cancellation of consolidation proceeding in relation to the two villages. In the ultimate analysis, order dated 2.9.2005 was passed by Director of Consolidation whereby notifications issued under Section 4(2)(a) of the Act relating to the two villages aforesaid were rescinded.
4. I have heard learned Counsel for the parties and have also been taken through the record.
5. Learned Counsel for the petitioner assailed the impugned order on the ground that after the notifications under Section 4(1)(a) of the U.P. Consolidation of Holdings Act published on 26.10.1991, publication of record was undertaken under Section 9 of the Act and thereafter final records were published under Section 10 of the Act in the year 1995 followed by chak allotment proceeding which were published and subsequently the matter attained finality under Section 23 of the Act in the year 1996 and only action that remained to be taken up, was to hand over possession to respective tenure holders. He argued that order of cancellation of notification militates against the provisions of Section 6 read with Rule 17 of the U.P. Consolidation of Holding Rules. He further canvassed that the Director of Consolidation passed the impugned order sans any reasons. Per contra, learned standing counsel propped up the impugned order passed in exercise of power under Section 6 of the Act stating that on the basis of various reports and records submitted at his end, he rightly passed the impugned order.
6. In the light of the above facts, it would be useful to refer to Section 6 of the U.P. Consolidation of Holdings Act and Rule 17 of the U.P. Consolidation of Holdings Rules.
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 of the U.P. Consolidation of Holdings Rules 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 reasons 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. It is explicit from a perusal of Section 6 of the Act that the State Government may cancel notification under Section 4 of the Act in respect of whole or any part of the area specified therein. From a perusal of Rule 17 of the Rules, framed under the U.P. Consolidation of Holdings Act it would crystallize that cancellation proceeding can be initiated on four grounds as enumerated in the rule.
8. From a perusal of record, grounds (a) (b) and (d) are not attracted. In so far as ground (c) is concerned, it spells out that that notification under Section 4 of the Act can be cancelled if the village is so torn up by party factions as to render proper consolidation proceedings in the village very difficult. Coming to the facts pertaining to village Foder, it may be recalled (as stated supra) that the Land Management Committee had passed some resolution bearing signatures of few disgruntled village people objecting to continuing further consolidation operation in the village and ostensibly on the basis of the said resolution, Consolidator and consolidation Lekhpal scripted some report and again on the basis of the said report, the matter was referred to Director of Consolidation who in his discretion, passed the impugned order. It would transpire from the reports submitted to the end of Director of Consolidation that authority concerned was apprised that the village people were not cooperating in the consolidation operation on account of their objection to further continuance of consolidation proceeding in the village and also regard being had to their sentiments protest and objection, a recommendation was made to the Director of Consolidation to rescind the notification under Section 4 in exercise of power under Section 6(1) Consolidation of Holdings Rules was not satisfied vis-a-vis the facts on record so as to warrant the satisfaction on the line of satisfaction contained in Rule 17(c) of the Rules that the village was so torn up as to render further consolidation proceeding difficult and also regard being had to the fact that as a matter of fact, the genesis of recommendations made was the resolution of Land Management Committee containing very few signatures and no such statistics were supplied in the instant case as in the case referred to above so as to lend justification to the exercise of power by the Director of Consolidation under Section 6 of the U.P. Consolidation of Holdings Act.
9. In the matter of conditional legislation, decision of Apex Court in Sundarjas Kanyalal Bhatija and Ors. v. Collector, Thane Maharashtra and Ors. decided on 13.7.1989, may be noticed. It was a case in which the Government of Maharashtra issued a draft notification under Section 3(3) of the Bombay Provincial Municipal Corporation Act, 1949 and thereby proposed the formation of Kalyan Corporation by merging of municipal areas of Kalyan, Ambarnath Domoivali and Ulhasnagar. The proposal was resented to by the residents of the said areas and many objections and representations by persons, companies and authorities including the municipal bodies of Ambarnath and Ulhasnagar were made. Subsequently, the draft notification was challenged in the Bombay High Court. The High Court took the view that the decision to exclude Ulhasnagar was taken by the State abruptly and in an irrational manner and that the decision was against the object of the Act. The Apex Court in the aforesaid decision held in the facts and circumstances that "No Judicial duty is laid on the Government in discharge of the statutory duties. The only question to be examined is whether the statutory provisions have been complied with." As stated supra, it would appear that the conditions contained in Rule 17(c) of the U.P. Consolidation of Holdings Act were not fully satisfied regard being had to the details contained in various papers produced before the Court and therefore, in the circumstances, the notification issued in exercise of power under Section 6 of the U.P. C.H. Act is liable to be quashed.
10. The next aspect to be noticed here pertains to argument of the learned Counsel for the petitioner that the Director of Consolidation while passing the impugned order, assigned no reasons, which shows that he merely endorsed the report, submitted to his end and did not apply his mind. One of the grounds of attack in the petition was that the Director of Consolidation did not pass a reasoned order. In connection with this submission, ratio of the decision in Agricultural and Industrial Syndicate Ltd. v. State of U.P. 1976 RD 35, may be noticed. In this petition, the petitioner sought striking down Section 6 of the U.P. Consolidation of Holdings Act, 1953 as being unconstitutional and also a writ of certiorari quashing the order of the Director of Consolidation. Dwelling on the power of Director of Consolidation, a Division Bench of this Court in the above noted decision observed that "when the Director of Consolidation issues a notification under Section 4 or 6 of the Act, he performs neither a quasi-judicial function nor exercises any administrative power but performs a legislative function. It was further observed that to judge the validity of the notification the Court must apply the same tests as it would apply to a piece of legislation. Just as it cannot be contended that any legislative authority should give reasons in support of its legislation or give a hearing to those affected before proceeding to legislate the Director of Consolidation also cannot be required to give either a reasoned order or to accord a hearing to the tenure holders concerned before issuing a notification under Section 6 of the Act."
11. The Court further observed as under :
If the High Court allows the writ petition and quashes the notification issued under Section 6, the result would be in substance a direction to the State Government to continue the consolidation proceedings in the area in question inspite of the fact that it has not considered it fit to do so in exercise of powers vested in it by the Legislature. As the notifications under Sections 4 and 6 are issued by the State Government in exercise of conditional legislative powers, it cannot be conceivably contended that the High Court can issue a mandamus to the Legislature to legislate on any subject or to apply any law to any area. The High Court cannot pass an order making it obligatory on the State Government to enforce the scheme of consolidation in an area where in its opinion such scheme should not be enforced. It would amount to compel the State Government to exercise its powers of conditional legislation.
12. In Sunderjas Kanyalal Bhatija and Ors. v. Collector, Thane, Maharashtra and Ors., delivered on 13.7.1989, the Apex Court was dealing with the matter of conditional legislation and was seized of similar question as involved in the present case. The quintessence of what was held by the Apex Court is that the Rules of natural justice are not applicable to legislative activity plenary or subordinate. The procedural requirement of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed. It was further held that the High Court was in error in directing the Government to hear the parties who are not entitled to be heard in law.
13. From a close scrutiny of the ratio flowing from the above decisions, it would crystallize that no reasoned or speaking order need be passed by the Director of Consolidation. The power of the Director of Consolidation to rescind notification has to operate within the periphery of conditions contained in Rule 17 of the Rules on his subjective satisfaction. In view of the above, the contention of the learned Counsel that no reasons have been assigned, cannot sustain.
14. In the above conspectus, the writ petition succeeds and is allowed and in consequence, the impugned order dated 2.9.2005 (Annexure 10 to the writ petition) is quashed. The matter may be remitted to the Director of Consolidation for decision afresh in the light of the facts available on record or to ascertain the fact otherwise in accordance with law whether condition (C) of Rule 17 of the Rules framed under the U.P. Consolidation of Holdings Act is satisfied before exercising power under Section 6 of the U.P. C. H. Act.