Mahdei v. Joint Director of Consolidation, Allahabad
1979-08-13
K.P.SINGH
body1979
DigiLaw.ai
ORDER K.P. Singh, J. - By means of this writ petition the petitioner has prayed for a writ of prohibition against opposite parties Nos. 1 to 3 to the effect that Reference No. 1510 under Section 48 (3) of the U. P. C. H. Act should not be proceeded with. It has also been prayed that all the proceedings at the instance of the opposite parties should he declared without jurisdiction and ultra vires. 2. It has been alleged that de-notification under Section 52 (1) of the U. P. C. H. Act had taken place in respect of the disputed land on 15-10-1977. The petitioner claimed sirdari right in the disputed land on the basis or Annexure 3 attached to the writ petition. Kanhaiya Lal, Mata Din Bodal, Raj Pati Ram Sabai, Hira Lal, Raj Bahadur, Bam Baran and Dukh Haran made an application to the Assistant Consolidation Officer, Handia for expunging the fictitious name and making entry of their names and also for an action against the person who had made fictitious entry. According to the aforesaid persons the petitioners husband Mahabir, being a forgerer, had obtained a fictitious entry in favour of the petitioner without any case or file in the consolidation department. The allegations made by the aforesaid persons would be evident from Annexure 4 attached to the writ petition. 3. According to the petitioner she received a notice (Annexure 5 attached to the writ petition) to the effect that in Form No. 45 her name was fictitiously recorded without any case, hence the entry deserved to be removed. The petitioner was required to file an objection and in the absence of any objection by her the matter would be referred to the Deputy Director of Consolidation for expunction of the fictitious entry on 9-2-1978. The petitioner in reply to the aforesaid notice filed her objection on 6-2-1978 as is evident from Annexure 6 attached to the writ petition. In her objection the petitioner had alleged that she was not guilty of any fraud and that de-notification had taken place under Section 52 of the U. P. C. H. Act, hence the consolidation authorities had no jurisdiction to proceed with the matter and that the petitioner had got the disputed land through a compromise and the entry had been made in pursuance thereof therefore it was prayed that the notice should he discharged. 4.
4. It appears that on 9-3-1978 the petitioner had filed an application to opposite party No. 1 intimating that the consolidation authorities had no jurisdiction as de-notification under Section 52 of the U. P. C. II. Act had taken place and that application before opposite party No. 1 was not maintainable and it was beyond the jurisdiction of opposite party No. 1 and various other contentions were raised as is evident from Annexure 'T attached to the writ petition. 5. On 18-4-1978 the Joint Director of Consolidation Allahabad Sri D. N. Gaur passed an order contained in Annexure 8' attached to the writ petition. Thereafter the petitioner has filed the present writ petition for the reliefs mentioned above. 6. The learned counsel for the petitioner contends before me that the proceedings before the consolidation authorities in the circumstances of the present case are without jurisdiction and ultra vires, and the petitioner is being harassed unnecessarily, hence the same should be quashed and the opposite parties should he directed not to proceed against the petitioner. 7. The learned counsel for the contesting opposite parties in reply has submitted that the writ petition is premature and since only administrative enquiry is being held by the department no writ of prohibition should be issued in the circumstances of the present case. He has also tried to satisfy me that the proceedings before the consolidation authorities are within jurisdiction of the authorities and if any interference is made with the same, the petitioner shall be unduly benefitted. He has very much emphasised that the petitioner is guilty of fraud hence no interference should be made at her instance. 8. I have examined the contentions raised on behalf of the parties. According to the learned counsel for the contesting opposite parties the consolidation authorities have ample powers to proceed with the matter in view of the provisions of Sections 27, 42A, 52 sub-clause (2) and Rule 109-A of the U. P. C. H. Act. During the course of arguments the learned counsel for the contesting opposite parties had to admit that in the circumstances of the present ease none of the sections or Rule mentioned by him were attracted. 9. In brief, Section 27 of the U. P. C. II. Act contemplates maintenance of record of rights' after issue of notification under Section 52 by the Collector.
9. In brief, Section 27 of the U. P. C. II. Act contemplates maintenance of record of rights' after issue of notification under Section 52 by the Collector. Section 42-A contemplates correction of clerical or arithmetical error apparent on the face of the record by the Consolidation officer or the Settlement Officer (Consolidation). On the facts alleged in the application by opposite parties Nos. 4 to 12 a serious case of fraud against the petitioners husband has been alleged, hence investigation into the allegations of the contesting opposite parties Nos. 4 to 12 would not be termed as clerical or arithmetical mistake, rather it would require probing deep into the facts and title of the present petitioner. In my opinion the learned counsel for the contesting opposite parties rightly agrees that the provisions of Section 42-A of the Act are not strictly applicable to the facts and circumstances of the present case. 10. Similarly Section 52 sub-clause (2) of the U. P. C. H. Act contemplates the proceedings pending under the Act on the date of issue of the notification under Section 52. On the admitted facts, no proceeding was pending when de-notification under Section 52 of the Act took place on 15-10-1977. The contesting opposite parties Nos, 4 to 12 for the first time applied to the Assistant Consolidation Officer on 1-2-1978. Hence the provisions of Section 52 (2) are also inapplicable to the facts of the present case. 11. A bare reading of Rule 109-A of U. P. C. H. Act would indicate that its provisions are not at all attracted to the facts of the present case. Rule 109-A only the order passed in cases covered by subsection (2) of Section 52 of the U. P. C. H. Act. I have already indicated that Section 52 (2) of the Act is inapplicable to the facts of the present case, hence no question of applicability of Rule 109-A arises. Thus it is evident that the proceedings against the petitioner before the opposite parties are without jurisdiction. 12. During the course of arguments the learned counsel for the contesting opposite parties suggested that the writ of prohibition should not be issued in administrative affairs. According to him the consolidation authorities are only making enquiries as to whether some forgery has been done in the consolidation records or not. A Division Bench of this Court in 1966 Rev. Dec.
During the course of arguments the learned counsel for the contesting opposite parties suggested that the writ of prohibition should not be issued in administrative affairs. According to him the consolidation authorities are only making enquiries as to whether some forgery has been done in the consolidation records or not. A Division Bench of this Court in 1966 Rev. Dec. 147 Munshi Singh v. Director of Consolidation has held that when the proceedings before the consolidation authorities are vitiated by fraud the proper remedy is by filing a regular suit in a competent court, hence to my mind the present enquiry is a futile enquiry and if a party is aggrieved by some forgery in consolidation records the proper course is to seek remedy in a civil suit, or some criminal proceedings may be started. In the present case it appears to me that the whole proceedings are without jurisdiction and there will be harassment to the present petitioner. 13. The learned counsel for the contesting opposite parties has invited my attention to the ruling reported in AIR 1961 SC 372 Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I Calcutta for his contention that writ of prohibition should not be issued in administrative affairs, but I find that their Lordship have themselves expressed in Para. 27 as below : - "Mr. Sastri next pointed out that at the stage when the Income-tax officer issued the notices he was not acting judicially or quasi-judicially and so a writ of certiorari or prohibition cannot be issued. It is well settled however, that though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled will issue appropriate orders or directions to prevent such consequences." 14. In my opinion in the present ease the petitioner will be subject to unnecessary proceedings and harassment, lienee it is a fit case where the contesting opposite parties Nos. 1 to 3 may be prohibited to proceed with the proceedings against the petitioner. The contesting opposite parties Nos.
In my opinion in the present ease the petitioner will be subject to unnecessary proceedings and harassment, lienee it is a fit case where the contesting opposite parties Nos. 1 to 3 may be prohibited to proceed with the proceedings against the petitioner. The contesting opposite parties Nos. 4 to 12 will be at liberty to seek their remedy in a properly constituted civil suit for their right. 15. In the result the writ petition succeeds and the opposite parties Nos. 1 to 3 are prohibited from proceeding with the cases against the petitioner started at the instance of the contesting opposite parties Nos. 4 to 12 giving rise to the reference No. 1510 under Section 48 (3) of the U. P. C. H. Act. Parties arc directed to bear the own costs.