Jiwan Singh v. State of Uttar Pradesh — 1983 DIGILAW 765 (ALL)

ORDER R.S. Singh, J. - The petitioners have filed this writ petition under Article 226 of the Constitution of India seeking issuance of a writ of certiorari, order or direction quashing the notification issued by the Commissioner of Consolidation dated 10-8- 1973. 2. The facts as alleged in the writ petition are that notification under Section 4 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) was published on 13-11-1964 bringing the village in dispute under consolidation of holdings operations. The proceedings under the Act were taken, the records were verified, the valuation of each plot of tenure-holders was fixed, objections under section 9 of the Act were decided, that the chaks were carved out and finally allotted to different chak-holders on 6-10-1967 and thereafter possession was also delivered to the chak-holders on 17-5-1968. According to the allegations made in the writ petition one Sri Ram Narain who was elected as Pradhan of the Gaon Sabha, sent a representation on 11-9-1972 to the Revenue Minister of the State of U.P., making complaints regarding under-valuation and over-valuation of small and big tenure-holders. The complaint was also to the effect that large number of chaks have been carved out for small tenure- holders. On the complaint of Sri Ram Narain an assembly question was asked by Sri Ram Kumar Dixit, M. L. A. from Billor, District Kanpur. After sometime report was called for from the Collector and the impugned notification dated 10-8-1973 was issued by the Commissioner of Consolidation under section. 6 of the Act cancelling the notification issued under section 4 of the Act. The validity of this notification has been challenged by the petitioner in this writ petition. 3. According to the learned counsel for the petitioners, the impugned notification is arbitrary and unconstitutional as it is hit by Article 14 of the Constitution of India. It was further contended that at the time of issuance of notification under section 4 of the Act the State Government has to form an opinion that the district or part thereof may be brought under consolidation of holdings operations. But under section 6 of the Act the State Government has to consider whether it was lawful at any time to cancel the notification made under section 4 of the Act in respect of whole or any part of the area specified therein. But under section 6 of the Act the State Government has to consider whether it was lawful at any time to cancel the notification made under section 4 of the Act in respect of whole or any part of the area specified therein. There was no material before the State Government to exercise powers under section 6 of the Act. It was lastly contended by the learned counsel for the petitioners that when the proceedings regarding dispute relating to title between tenure-holders were completed the allotments of chaks have become final and the possession has also been delivered to the respective chak-holders, they have made certain improvements and some of them have executed transfers of their chaks and nothing was practically left to be done under the Act, the issuance of notification under section 6 of the Act cancelling of the notification issued under section 4 of the Act was arbitrary and abuse of the powers. Therefore, the impugned notification is liable to be quashed. 4. It has been contended by the learned Standing Counsel, in reply, that the notification issued under section 6 of the Act was not hit by Article 14 of the Constitution of India within the delegated powers of the Commissioner of Consolidation as such this notification cannot be challenged in this writ petition. He placed reliance on the decision reported in Agricultural & Industrial Syndicate Ltd. v. State of U.P., 1976 Rev Dec 35. It was further contended that under the provisions of section 6 of the Act notification can be issued at any time before notification under section 52 of the Act is issued. In this case by that time no notification under section 52 of the Act was issued. Thereafter, the notification under section 6 of the Act was rightly issued. 5. As far as the validity of section 6 of the Act, as it is hit by Article 14 of the Constitution of India, is concerned, it may be pointed out that this question came up for consideration before a division bench of this Court in Agricultural & Industrial Syndicate Ltd. v. State of U.P. (1976 Rev Dec 35) in which it was held that notification under section 6 of the Act is conditional legislation and not exercise of executive or legislative power and it cannot be challenged being discriminatory under Article 14 of the Constitution of India. It was further held that the grounds given under Rule 17 (b) (c) of the Rules framed under the Act are not discriminatory nor violate of Article 14 of the Constitution of India. Therefore, de-notification cannot be challenged. In view of this authority, the submission of the learned counsel for the petitioners on this point cannot be accepted. 6. Now coaling to the merits of the case it has to be considered that at what stage and on what rounds the notification under section 6 of the Act cancelling the notification issued under section 4 of the Act can be issued. In this connection it will be necessary to consider the relevant provision of the Act. Section 6 of the Act reads as follows:- "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 Rules framed under the Act runs thus: "17. 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 it nature as when completed would render the consolidation operations inequitable to it section of the peasantry:- (b) The holdings of the village are already consolidated for one reason 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 it 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. From a plain reading of sub-section (1) of section 6 of the Act it appears that a notification under this section for cancellation of notification under section 4 of the Act can be issued at any time. Section 6 (2) of the Act gives the effect of cancellation of notification. According to this sub-section subject to final orders relating to the correction of land records, if any, passed on or before the date of such cancellation, cease to be under consolidations operations with effect from the date of the cancellation. The grounds for cancellation have been enumerated in Rule 17 of the Rules framed under the Act. But from the wordings used in this Rule the grounds enumerated in the Rule are not exhaustive. In section 6 of the Act on the words `at any time', no limit or restriction has been placed. According to the learned counsel for the petitioners the word `at any time' used in Section _6 of the Act should be interpreted to mean that before fresh rights have conferred on the tenure-holders in their respective chaks and not after that when such tenure-holders have been conferred title in the new chaks given under the provisions of the Act including some or all the plots in the chak originally belonged to them or to other tenure-holders. But according to the learned Standing Counsel as no restriction has been placed in the Act on the words'at any time' used in Section 6 of the Act, it will mean that the notification under section 6 of the Act can be issued at any time before the notification under section 52 of the Act is issued. 8. Now to consider the meaning of the words `at any tinge' used in Section 6 of the Act the object and scheme of the Consolidation of holdings proceedings itself has to be considered. 9. Before the enforcement of the U.P. Zamindari Abolition and Land Reforms Act complicated and numerous types of tenures both proprietary and cultivator were there which were the greatest stumbling-block in the way of successful consolidation of holdings. But after the enforcement of the U.P. Zmnindari Abolition and Land Reforms Act proprietary rights were abolished. Now there remains only cultivatory rights with the persons concerned with the land and that too were simplified in three tenures, namely, bhumidhars, sirdars and assamis. But after the enforcement of the U.P. Zmnindari Abolition and Land Reforms Act proprietary rights were abolished. Now there remains only cultivatory rights with the persons concerned with the land and that too were simplified in three tenures, namely, bhumidhars, sirdars and assamis. It was considered that the consolidation of agricultural holdings will be for the development of the agriculture, boundary lines would be reduced in number and extent, saving land and diminishing boundary disputes between the tenure- holders and it would make more useful and convenient cultivation and supervision for the tenure-holders. With these objects and reasons the U.P. Consolidation of Holdings Act was passed. The consolidation of holdings proceedings in any area start after the notification under section 4 of the Act is issued by the State Government. On the publication of notification aforesaid first thing which affects the pending cases is that all proceedings for correction of records, all suits and proceedings in respect if declaration of rights or interest in any land lying in the area, pending- before any court or authority abate tinder section 5 of the Act. Thereafter starts the process of revision of field books, current annual registers, determination of valuation and shares in the joint holdings under section 8 of the Act. After the preparation of these records and preparation of the statements of principles, objections are invited under section 9 of the Act. After the disposal of these objections revision of the annual registers in C. H. Form No. 11 is prepared under Rule 28 of the Rules and then published under section 10(1) of the Act. The orders of the Assistant Consolidation Officer or the Consolidation Officer relating to claims etc. are final subject to appeals and revisions provided under the Act. The Consolidation Scheme is thereafter prepared and publication of the provisional consolidation scheme objections are invited regarding allotment of chaks. The objections are disposed of according to law and the provisional consolidation scheme is confirmed and allotments of chaks are made under section 23 of the Act. Respective chak-holders are given possession under section 28 of the Act on their applications within six months of the date on which the final consolidation scheme has come into force. The tenure-holders thereafter are in actual physical possession of the chaks. Respective chak-holders are given possession under section 28 of the Act on their applications within six months of the date on which the final consolidation scheme has come into force. The tenure-holders thereafter are in actual physical possession of the chaks. If any tenure-holder has not applied for physical possession within the aforesaid six months, then on the expiry of that period he shall be deemed to have entered into physical possession of the allotted chaks of the land. Under section 27 of the Act new records are prepared and are maintained under the provisions of the U.P. Land Revenue Act. All the entries prepared in the records of land in accordance with the provisions of sub-section (1) of section 27 of the Act shall be presumed to be true until the contras is proved and according to section 30 of the new rights in the allotted chaks are conferred on the respective tenure-holders in lieu of their allotted plots. Section 30 of the Act reads as follows: "30. Consequences which shall ensure on exchange of possession. With effect from the date on which a tenure-holder enters, or is deemed to have entered into possession of the chak allotted to him, in accordance consequences shall ensue- (a) the rights, title interest and. liabilities, (i) of the tenure-holder entering, or deemed to have entered into possession, and (ii) of the former tenure-holder of the plots comprising the chak, in their respective or original holdings shall cease; and (b) the tenure-holder entering into possession. or deemed to have entered into possession, shall have in his chak the same rights, title, interests and liabilities as he had in the original holdings together with such other benefits of irrigation from a private source. or deemed to have entered into possession, shall have in his chak the same rights, title, interests and liabilities as he had in the original holdings together with such other benefits of irrigation from a private source. till such source exists, as the former tenure-holder of the plots comprising the chak had in regard to them: (c) lands vested in the Gaon Sabha, or any local authority and allotted to the tenure-holder shall be deemed to have been resumed by the State Government under the provisions of Section 117 or Section 117-A, as the case may be, of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, and settled with the tenure holder, (d) the rights of the public as well as all individuals in or over land included in a chak following a declaration made under the proviso to sub-section 12) of Section I9A shall cease and be created in the land specified for the purpose in the final Consolidation Scheme; and (e) The encumbrances, if any, upon the original holding of the tenure-holder entering or deemed to have entered, into possession, whether by way of lease, mortgage or otherwise, shall in respect of that holding, cease, and be created on the holdings, or on such part thereof, as may be specified in the final Consolidation Scheme. After the aforesaid proceedings the State Government under section 33 of the Act fixes the amount of costs of operations conducted under the Act and recovers from the tenure-holders of the unit. After these things are done, practically nothing is left except issuance of notification tinder section 52 of the Act. 10. It It may be pointed out that during the consolidation of holdings operations the jurisdiction of civil court and revenue court remains suspended for which the relief can be obtained under the Act. This period remains operative from the date of notification under section 4(2) of the Act up to notification under section 52 of the Act or sub-section (1) of section 6 of the Act. as the case may be. Bar of civil or revenue court is provided under section 49 of the Act. Therefore, in view of Section 5 and Section 9 of the Act. as the case may be. Bar of civil or revenue court is provided under section 49 of the Act. Therefore, in view of Section 5 and Section 9 of the Act. civil or revenue courts cannot entertain and adjudicate the rights of the tenure-holders in respect of the land lying in an area arising out of consolidation of holdings proceedings in regard to which proceedings could or ought to have been taken under the Act. The question is whether in a case where records have been finalised and the respective tenure-holders have been entered into possession on their new chaks but a notification under section 52 of the Act has yet not been issued an application for mutation or a suit for partition and ejectment against trespasser has to be filed before the consolidation authorities or revenue or civil courts, as the case may be. In Smt. Bhuri v. Sunder, 1973 All LJ 352 it was held that an application for mutation could be filed before the Collector under section 33 of the U.P. Land Revenue Act provided the consolidation authorities had prepared a new village map, Khasra and record of rights under section 276) of the Act. This decision of this Court has been approved by the Hon'ble Supreme Court in another case reported in Suha Singh v. Mahendra Singh, AIR 1974 SC 1657 wherein a bar of Section 49 of the Act was being considered. It was held therein as follows (at p. 1660) : "...... The result is that the plea of bar of the civil courts' jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has no substance. Nothing done in consolidation proceedings is undone by that suit. To urge that the formal notification under Section 52 not having been published the court had no jurisdiction is to misread section 49 and to exalt a ritual into it legal reality. Relying on the above decision of the Supreme Court in it suit for ejectment of trespasser filed before the notification tinder section 52 of the Act was issued it was held by this Court in Thakurji Maharaj v. Board of Revenue. Relying on the above decision of the Supreme Court in it suit for ejectment of trespasser filed before the notification tinder section 52 of the Act was issued it was held by this Court in Thakurji Maharaj v. Board of Revenue. U.P., 1983 Rev Dec 220 : 1982 All LJ 969 that Section 49 of the U. P. Consolidation of Holdings Act stands in no way as Bar against the jurisdiction of the revenue court from entertaining any suit before notification under section 52 of the Act is issued. 11. The pronouncements of the Supreme Court as well as of this Court lead to the conclusion that if the records of land/rights have been finalised under the provisions of the Act and new rights have been accrued to the respective tenure- holders in their new chaks nothing remains to be decided under the provisions of the Act and notification under section 52 of the Act remains a formal act. The postponement of issuance of notification under section 52 of the Act for any period howsoever long it may be. has got no effect on the title acquired by the tenure-holders in their new chaks under section 30 of the Act. Tenure-holders are free to deal with the land in any manner according to law. The rights conferred on the tenure-holders under section 30 of the Act is not dependent on the notification under section 52 of the Act and, therefore, section 6 of the Act has to be interpreted in the way as not to take away the rights which have been conferred on the tenure-holders under section 30 of the Act. It is significant to note that there is no specific mention of Section 52 of the Act in Section 6 of the Act. A close reading of section 6 of the Act leads to the conclusion that subsection (2) of Section 6 of the Act puts a limit on issuance of notification under section 6(1) of the Act at any time. A close reading of section 6 of the Act leads to the conclusion that subsection (2) of Section 6 of the Act puts a limit on issuance of notification under section 6(1) of the Act at any time. Section 6(2)of the Act definitely provides that notification under sub-section 1 of section 6 of the Act shall be subject to final orders relating to correction of land records meaning thereby that-the notification could be issued before the finalisation of the new records of land and new map and conferment of new rights under section 30 of the Act in favour of the tenure-holders in respect of their chaks. According to section 30 of the Act tenure-holders' rights in their original holdings disappeared and they got the same rights, title and interest in their chaks allotted in the consolidation of holdings operations. Therefore, section 6 of the Act does not mention anything about the new rights conferred on the new chak- holders and is confined only up to the correction of land records. Therefore, the decision relied upon by the learned counsel for the respondents reported in Agricultural & Industrial Syndicate Ltd. v. State of U.P., 1976 Rev Dec 35 has no application to the facts of the present case as in that case notification under section 6 of the Act was issued before the finalisation of the consolidation records and not after the conferment of the new rights on the tenure- holders under section 30 of the Act. 12. It was also contended by the learned counsel for the petitioners that the grounds on which notification under section 6 of the Act has been issued in this case are not covered by the grounds mentioned in Rule 17 of the Rules framed under the Act. The grounds for cancellation of `notification under section 4 of the Act as disclosed in the (SIC) affidavit appeal to be inequities in allotments of chaks and serious mistakes in evaluation and areas of plots. These mistakes could not be removed in objections, appeals and revisions mainly because for want of demarcation and the tenure-holders could not be fully aware about the land allotted to them. In village Singhpur Kachhar inequities in allotment of chaks and serious mistakes in evaluation and areas of plots were found that necessitated the de-notification. These mistakes could not be removed in objections, appeals and revisions mainly because for want of demarcation and the tenure-holders could not be fully aware about the land allotted to them. In village Singhpur Kachhar inequities in allotment of chaks and serious mistakes in evaluation and areas of plots were found that necessitated the de-notification. These mistakes and irregularities could not be removed in objections, appeals and revisions mainly because for want of demarcation, the tenure-holders were not fully aware of the land allotted to them. Use of powers under section 6 of the Act was only the course open to State Government. In the counter affidavit there is a mention about 85 complaints from the tenure- holders of the village. But there is no mention anywhere in the counter affidavit whether these objections were received after finalisation of the record or before that. Whatever appeals and revisions filed by the tenure-holders were all disposed and the chaks were carved out in the village and finally allotted to the tenure-holders on 6-3- 1967 and dakhal was given on 17-5-1968. But the notification under section 6 of the Act came on 10-8-1973 after more than five years.According to annexure A-3 attached to the writ petition 27 persons have made developments on their lands, some of them have planted groves of guava, lemon and mangoes, some of them had constructed tube-wells, rooms etc. some have taken loans from the Government for constructing tube-wells etc. ranging from Rs. 5000/- to Rs. 20,000/-. In the counter affidavit filed on behalf of the State, it has been admitted that out of 27 alleged improvements only 22 have been made in the allotted chaks. The loans shown in Annexure `A-3' to the writ petition have not been denied. Tube-wells and rooms constructed by the tenure-holders have also not been denied. Over and above the costs of consolidation operations have also been recovered from the tenure-holders and this fact has also been admitted by the State Government. This shows that practically all the proceedings required to be taken during the consolidation of holdings proceedings, were complete. Only ceremonial act of issuing notification under section 52 of the Act remained. If the State Government takes its own time in issuing notification under section 52 of the Act, as in this case it was not issued even after five years. Only ceremonial act of issuing notification under section 52 of the Act remained. If the State Government takes its own time in issuing notification under section 52 of the Act, as in this case it was not issued even after five years. the fate of the tenure-holders who had got possession for five years could not remain hanging. In these days it can easily he believed that all the tenure-holders after consolidation of holdings operations must have made improvements in their chaks in one way or the other according to their capacity in order to get more produce from their lands in these hard days. The Government campaign is also to grow more food. Therefore, in the interest of the country as well as their own the tenure- holders are expected to produce as much as possible and to improve their lands over which they have got possession for the last five years. Now it is more than fifteen years they are in possession over their respective chaks. Therefore, there is no such grounds as mentioned in Rule 17 of the Rules framed under the Act to issue notification impugned in this writ petition. The grounds as mentioned in the counter affidavit are also not covered by the grounds mentioned in Rule 17 of the Rules. The words `among other reasons used in Rule 17 of the Rules framed under the Act must be interpreted to mean the grounds similar to those mentioned in this Rule itself. The grounds of the present case are not covered by Rule 17 aforesaid in any way. 13. In view of the aforesaid discussions I am of the opinion that the scope of section 6 of the Act is to issue notification up to the stage of correction of land records and not after finalisation of records and conferments of new rights on the tenure-holders in their respective chaks under section 30 of the Act. Moreover, the grounds on which the impugned notification has been issued are not covered by Rule 17 of the Rules framed under the Act. In the circumstances and on the facts of this case there remains no doubt that the of issuance of impugned notification under section 6 of the Act is mala fide, arbitrary and without jurisdiction and is thus liable to be quashed. 14. In the circumstances and on the facts of this case there remains no doubt that the of issuance of impugned notification under section 6 of the Act is mala fide, arbitrary and without jurisdiction and is thus liable to be quashed. 14. In the result, the petition succeeds and it is accordingly allowed and the impugned notification dated 10-8-1973 issued by the Commissioner of Consolidation under section 6 of the Act quashed. 15. However, in the peculiar circumstances of the case there,shall be no orders as to costs.