Ram Briksh v. Deputy Director of Consolidation — 1985 DIGILAW 480 (ALL)

ORDER B.L. Yadav, J. - The present petition under Article 226 of the Constitution is directed against the order dated 17-12-1984 passed by the Assistant Director of Consolidation, Gorakhpur in a revision under section 48 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) arising out of the order dated. 11-8-1983 passed by the Consolidation Officer rejecting the application of the petitioner for condonation of the delay in an objection filed under S. 9-A(2) of the Act which was filed after the publication of the notification under S. 52 of the Act closing consolidation operations in the area. 2. The facts of the case, in brief, are that over Khata No. 520 the petitioner Ram Briksh son of Girdhari and Harhangi son of Gopi were entered. An objection was filed under 'S. 9-A(2) of the Act by the petitioner on 26-4 82 to the effect that the name of Harhangi was ,incorrectly entered and the same may be expunged and plots Nos. 944/19 and 1042/37 may remain solely recorded in the name of the petitioner. It is worth mention that the notification under S. 52 of the Act was issued on 10-4-1982. After the publication under S. 52 of the Act objection was filed by the petitioner with an application for condonation of delay. Notification under S. 9 of the Act was issued on 21-7-1971 and S. 20 publication was made on 30-9-73 and the provisional consolidation scheme was confirmed on 22-9-1976. Hence much thereafter the notification under S. 52 of the Act was issued and thereafter an objection was filed by the petitioner. 3. The aforesaid objection was contested by Respondents 3 to 5 stating that the objection itself was not maintainable as it was filed after notification under S. 52 of the Act. The Consolidation Officer dismissed the objection on 11-8-1983 and a revision has been dismissed on 17-12-1984. It is against these two orders that the present petition has been filed. 4. I have heard Sri Srikant, the learned counsel for the petitioner. He urged that even though notification might have been issued closing the consolidation operations. Nevertheless application objection under S. 9A (2) of the Act was maintainable as the same was accompanied by an application under S. 5 of the Limitation Act. 4. I have heard Sri Srikant, the learned counsel for the petitioner. He urged that even though notification might have been issued closing the consolidation operations. Nevertheless application objection under S. 9A (2) of the Act was maintainable as the same was accompanied by an application under S. 5 of the Limitation Act. Therefore it would be deemed to have been filed before the issuance of the notification under S. 52 of the Act. The objection ought to have been decided provided the delay has been condoned. Thus the objection was maintainable. May be that the objection is filed with some delay. 5. In order to appreciate the points urged by the learned counsel for the petitioner that the objection can be filed even after the issuance of the notification under S. 52 of the Act, closing consolidation operation it is necessary to consider some provisions of the Act. Section 4 of the Act provides that a notification shall be issued by the State Government and the same shall be published in the Gazette with a view to start consolidation operations. Once the notification under S. 4 (Four) of the Act has been issued any officer or authority empowered by the District Deputy Director of Consolidation can enter upon and survey, in connection with rectangulation or otherwise and to take levels of any land to do all acts necessary to ascertain the suitability of the area for consolidation operations. What would follow the notification issued under S. 4 of the Act, has been provided in S. 5 of the Act and the effect has been provided that the consequences hereinafter set forth shall ensure from the date specified therein till the publication of notification under S. 52 or sub-s. (1) of S. 6 of the Act. Section 6(1) is for cancellation of notification issued under S. 4 of the Act. 6. Section 5(2) provides that upon the publication of the notification under sub-sec. (2) of S. 1, the following further consequence shall ensue in the area to which the notification relates, namely, that all suits for declaration of rights or interest in any land and proceedings for correction of records etc. pending before, any court shall, on an order being passed in that behalf, be abated and they would be decided in accordance with Ss. 9 and 9A of the Act etc. 7. pending before, any court shall, on an order being passed in that behalf, be abated and they would be decided in accordance with Ss. 9 and 9A of the Act etc. 7. In the instant case what would be the consequences of the notification under S. 4 of the Act have been provided in S. 5(2) and these consequences would follow only after notification under section 4 and before the notification under S. 52 of the Act and not subsequent to them. It is thus evident that the objection purporting to be under S. 9-A(2) of the Act even though being accompanied by application under section 5 of the Limitation Act for condonation of delay can be filed only prior to the notification under S. 52 of the Act has been issued and if the delay is condoned and the said application under S. 5 of the Limitation Act is allowed, the objection can be treated to be within time. But once the consolidation operations have been closed by issuing notification under section 52 or the notification under S. 4 of the Act has, been cancelled by issuing a notification under S.6 of the Act no objection can be filed by party and the same cannot be held to be maintainable. 8. The learned counsel placed reliance on Kalika v. Deputy Director of Consolidation, 1977 Rev Dec 5. But there the dispute was that the application was filed before notification under 52 of the Act and the delay was subsequently condoned and a decree or judgment in a suit under S. 59 of the U.P. Tenancy Act was later on recalled and the suit was declared to have abated. From the case of Kalika (supra) the petitioners cannot derive any help. 9. The learned counsel next referred to Ram Charan v. Deputy Director of Consolidation, 1982 Rev Dec 109 : 1981 All LJ 1057. There the question was as to what principles were applicable to the application under S. 5 of the Limitation Act for condonation of delay in filing the objection. In that case notification under S. 52 of the Act had not been issued when the objection was filed by the petitioners. I am, therefore, of the view that Ram Charan's case (supra) would also not help the petitioners. 10. In that case notification under S. 52 of the Act had not been issued when the objection was filed by the petitioners. I am, therefore, of the view that Ram Charan's case (supra) would also not help the petitioners. 10. The learned counsel placed reliance on Shyam Narain Rai v. Deputy Director of Consolidation 1981 Rev Dec 307 : 1981 UPLT (NOC) 207. In that case an objection was filed before the denotification under S. 52 of the Act and the objection was decided against the petitioners and no appeal was filed. Later on the appeal was filed after denotification under S. 52 of the Act. It was urged from the side of the respondents in that case that after denotification restoration, appeal or revision cannot be filed. But in that case the objection was already filed before the denotification under S. 52 of the Act and subsequently it was held that the restoration, appeal or revision can be filed even after the denotification under S. 52 of the Act. Shyam Narain Rai case (supra) is not indistinguishable. 11. Again reliance was placed upon a Division Bench of this Court Dilawar Singh v. Gram Samaj, AIR 1973 All 411 . 12. It is clear from the provisions of S. 52 of the Act that if any proceedings were pending on the date of issuance of notification under S. 52(1) of the Act the same shall be given effect to and the consolidation operations shall for that purpose be deemed not to have been closed. In the case of Dilawar Singh (supra) a Division Bench of this Court held that any, case under S. 15 of the Act filed and the appeal was decided before denotification under S. 52 of the Act but the revision was not filed which was filed subsequent to the denotification under S. 52 of the Act and it was held that it would be assumed that the proceedings initiaeted under S. 12 of the Act must be deemed to be still pending although in a dormant shape and had become active again when the revision was filed. But in the instant case no objections were filed by the petitioner till the denotification under S. 52(1) of the Act was issued. Hence that case also does not help the petitioner. 13. But in the instant case no objections were filed by the petitioner till the denotification under S. 52(1) of the Act was issued. Hence that case also does not help the petitioner. 13. Ram Bahadur v. Deputy Director of Consolidation, AIR 1973 All 414 and Jiwa Ram v. Deputy Director of Consolidation, AIR 1973 All 416 are also of no assistance to the petitioner. In Jiwa Ram's case the objection under S. 9 of the Act was not pending on the date of issuance of notification under S. 52(1) of the Act. In the case of Ram Bahadur (supra) also objection has been filed before the issuance of notification under S. 52(1) of the Act. ,Hence these cases are not indistinguishable, 14. If sections 5 and 52 of the Act are read together it is evident that rights of the parties can be decided only during the period the consequences as indicated in S. 5(1) have .commenced and before they came to an and' by the notification under S. 52 of the Act or sub-sec. (1) of S. 6 of the Act. It is accordingly clear that an objection purporting to be under S. 9-A(2) can be filed only after the notification under S. 4 of the Act has been issued and before issuance of the notification under S. 52(1) of the Act declaring that the consolidation operations have been closed to by the notification issued under S. 6(1) when the consolidation operations have been cancelled. Once the notification under sub-sec. (1) of S. 52 of the Act has been issued thereafter no objection can be filed nor the same can be deemed to be maintainable nor the consolidation authorities have any jurisdiction to entertain the same even though the said objection might be accompanied by an application under S. 5 of the Limitation Act for condonation of delay and treating the objection to be within time. In case objections were filed before denotification under S. 52 of the Act the position would have been different. In the instant. case the objection under S. 9-A (2) of the Act was filed subsequent to the notification under S. 52 of the Act was issued. Hence that objection was not maintainable even though it might have been accompanied by an application under S. 5 of the Limitation Act. In the instant. case the objection under S. 9-A (2) of the Act was filed subsequent to the notification under S. 52 of the Act was issued. Hence that objection was not maintainable even though it might have been accompanied by an application under S. 5 of the Limitation Act. In case the petitioners chose to file an objection after denotification under S. 52(1) of the Act, they should thank themselves. The operations of the Act cannot be enlarged beyond what actually the Legislature intended. In the instant case the Legislature intended operations of the Act only during the period notification under S. 4 of the Act was issued till the denotification under S. 52(1) of the Act or S. 6(1) thereof is made closing the consolidation operations. 15. In view of the discussions made hereinbefore, the present writ petition fails and it is accordingly dismissed in limine.