JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri Mukhtar Alam, learned Counsel for the petitioner and Sri Atul Dayal, learned Counsel appearing for the caveator. 2. By this writ petition the petitioner has prayed for quashing the order dated 29.11.2007, passed by the Deputy Director of Consolidation by which the revision filed by the contesting respondents against the order of Settlement Officer, Consolidation was allowed and the matter was remanded to the Consolidation Officer to take a decision after giving opportunity to the petitioner to lead evidence. 3. Brief facts of the case necessary to be noted for deciding the issues raised in the writ petition are; the dispute relates to Khata No. 401-B and 402. The Assistant Consolidation Officer made a reference with regard to Khata No. 401-B regarding partition and recording the name of the heirs of deceased Asrar Ahmad. Objection by Yaseen Begam was also submitted claiming co-tenancy right in Khata No. 401 Ba. In Khata No. 402, a report was submitted by the Assistant Consolidation Officer regarding share of the parties and the claim of co­tenancy right by Tahsin Begum and Yasin Begum. The Consolidation Officer on 21.1.2004 in the absence of the parties, decided the cases and dismissed all the objections on the ground of non-prosecution and maintained the basic year entry. Yasin Begum filed restoration application on 28.1.2004. On 2.11.2004, Consolidation Officer passed an order that earlier order was passed in the absence of the parties hence, it is in the interest of justice that the case be restored and parties be given opportunity. Before the Consolidation Officer, the case was proceeding for evidence of Abrar Ahmad. Several dates were fixed for evidence of Abrar Ahmad. Two appeals were filed by Abrar Ahmad against the order dated 2.11.2004, passed by the Consolidation Officer, praying therein that he was not given opportunity to object the restoration application. Another order under challenge was order dated 28.1.2005, by which the Consolidation Officer directed for evidence of Abrar Ahmad. Petitioner’s case before the Settlement Officer, Consolidation was that both the orders be set aside. The Settlement Officer, Consolidation by order dated 2.2.2006 allowed both the appeals of Abrar Ahmad and held that on the restoration application no opportunity was given hence, procedure adopted by the Consolidation Officer was incorrect. Settlement Officer, Consolidation further noticed that the disputed plots situate in the town area hence, they are out of consolidation. The Settlement Officer, Consolidation by order dated 2.2.2006 allowed both the appeals of Abrar Ahmad and held that on the restoration application no opportunity was given hence, procedure adopted by the Consolidation Officer was incorrect. Settlement Officer, Consolidation further noticed that the disputed plots situate in the town area hence, they are out of consolidation. The Settlement Officer, Consolidation held that consolidation Courts have no jurisdiction to pass orders. Against the order of Settlement Officer, Consolidation, a revision was filed by respondent Anwar Ahmad which has been allowed by the Deputy Director of Consolidation vide the impugned order. 4. Learned Counsel for the petitioner challenging the impugned order made two submissions. The first submission of the learned Counsel for the petitioner is that the land in dispute being included in the town area, the provisions of U.P. Consolidation of Holdings Act, 1953 are not applicable hence, the Consolidation Officer has no jurisdiction to adjudicate over the plots in question. It has further been submitted that a report has been submitted by Consolidation Officer and Assistant Consolidation Officer to the effect that plot No. 1027 is situated in the town area and some part of it is Parti and on some part of it, foundation has been dug for Abadi. He further submits that with regard to Abadi land, the Consolidation Officer has no jurisdiction. Reliance has been placed on judgments in the cases of Triloki Nath v. Ram Gopal and others, 1974 R.D. 5; Ram Manorath and others v. Surya Pal and others, 2007 (102) RD 593; Randhir Singh and others v. Deputy Director of Consolidation and others, 1997 RD 346; Prabhu Nath v. Deputy Director of Consolidation and others, 2003 (95) RD 611; Kumar Lohar and others v. Ram Dhandra Dubey and others, 1982 All. L.J. 1129 and Achchey Lan and others v. Assistant Director of Consolidation, Gorakhpur and others, 1996(14) LCD 194. 5. I have considered the submissions of learned Counsel for the parties and perused the record. 6. The first submission of the learned Counsel for the petitioner is that-plot No. 1027 being included in town area, the provisions of U.P. Consolidation of Holdings Act, 1953 are not applicable. The said question has been considered by the Deputy Director of Consolidation in detail. 6. The first submission of the learned Counsel for the petitioner is that-plot No. 1027 being included in town area, the provisions of U.P. Consolidation of Holdings Act, 1953 are not applicable. The said question has been considered by the Deputy Director of Consolidation in detail. The provisions of Section 1 of U.P. Zamindari Abolition and Land Reforms Act being relevant in this context are being quoted herein below : “1. Short title, extent and commencement.—(1) This Act may be called the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. (2) It extends to the whole of the Uttar Pradesh except the areas which, on the 7th day of July, 1949, were included in a municipality or a notified area under the provisions of the United Provinces Municipalities Act, 1916 (U.P. Act II of 1916) or a Cantonment, under the provisions of the Cantonment Act, 1924 (U.P. Act II of 1924) or a Town Areas under the provisions of the United Provinces Town Areas Act, 1914 (U.P. Act I of 1914) : Provided that in relation to areas included in the Rampur Municipality, this sub-section shall have effect as if for the words and figures ‘7th day of July, 1949’ the words and figures ‘31st day of July, 1949’, were substituted therein : Provided further that where any area which on July 7, 1949, was included in a Municipality, Notified Area, Cantonment or Town Area, cease to be so included therein at any time after that date and no notification has been made in respect thereof under Section 8 of the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1950— (i) In case, it has ceased to be so included at any time before June 29, 1971, this Act shall extend to such area from June 29, 1971, and (ii) In any other case, this Act shall extend to such area from the date on which the area ceases to be so included. (3) It shall came into force at once except in the areas mentioned in clauses (a) to (f) of sub-section (1) of Section 2 where it shall, subject to any exception or modification under sub-section (1) of Section 2, come into force on such date as the State Government may by notification in the Gazette appoint, and different dates may be appointed for the different areas and different provisions of this Act.” 7. A perusal of Section 1 (2) indicates that the Act No. 1 of 1950 extend to the entire State of U.P except the areas which were included in a municipality or a notified area or town area on 7.7.1949. The Deputy Director of Consolidation has recorded a categorical finding that the area in question was not included in the town area in 1949 hence, the consolidation Courts has full jurisdiction. Section 3 (2-A) of the U.P. Consolidation of Holdings Act, 1953 defines ‘Consolidation area as follows : “(2-A) ‘Consolidation area’ means the area, in respect of which a notification under Section 4 has been issued, except such portions thereof to which the provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950 or any other law by which Zamindari system has been abolished, do not apply;” 8. A notification under Section 4 has already been issued, in which the area in question has already been included to which there is no dispute. U.P. Consolidation of Holdings Act, 1953 is applicable to an area where U.P. Zamindari Abolition and Land Reforms Act is in force. The Deputy Director of Consolidation has also relied on Khatauni of 1360 Fasli in which the land was recorded as Bhumidhari thus, the submission of the petitioner that since the plots are included in town area, the provisions of U.P. Consolidation of Holdings Act, 1953 are not applicable, has no force. 9. The second submission of learned Counsel for the petitioner is that the land is Abadi land hence, the consolidation Courts have no jurisdiction to adjudicate over the land. In Khatauni of 1360 Fasli, the land was recorded as Bhumidhari in the name of various tenure holders. The submission of learned Counsel for the petitioner is that the land is not covered with the definition of ‘land as provided under the U.P. Consolidation of Holdings Act, 1953 hence, the consolidation Courts have no jurisdiction to adjudicate the rights of the parties. For appreciating the above submission, it is necessary to look into the relevant materials with regard to nature of the land as brought on record. For appreciating the above submission, it is necessary to look into the relevant materials with regard to nature of the land as brought on record. The Settlement Officer, Consolidation in his order has referred to the report of the Consolidator dated 28.1.2006 and Assistant Consolidation Officer dated 30.1.2006 to the effect that plot No. 1027 is situated in the town area and some part of it is Parti and on some part of it, foundation has been dug for Abadi. A perusal of the order of the Settlement Officer, Consolidation indicates that basis of the order for holding that Consolidation Officer had no jurisdiction, is that plots were included in the town area. As noticed above, the mere fact that at the relevant time when consolidation proceedings started, the plots were included in the town area was not decisive. Unless the plots were included in the town area on 7.7.1949, the U.P. Zamindari Abolition and Land Reforms Act shall be applicable which in turn shall make U.P. Consolidation of Holdings Act, 1953 applicable. There is finding of the Deputy Director of Consolidation that on the relevant date, the plots were not included in the town area. Only relevant fact which has been noticed by the Settlement Officer, Consolidation on the basis of the above mentioned report, is that the part of the land is lying Parti and in some part of it foundation has been dug for Abadi. The mere fact that the land was lying Parti and was not cultivated at the time when report was submitted and on some part foundation was dug for Abadi, would not lead to conclusion that it was not land within the meaning of U.P. Consolidation of Holdings Act, 1953. There is no dispute that no declaration under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act has been obtained with regard to land in question. The land has been defined in Section 3 (5) of the U.P. Consolidation of Holdings Act, 1953 which is as follows : “3(5) ‘Land’ means land held or occupied for purposes connected with agriculture, horticulture and animal husbandry (including pisciculture and poultry farming), and includes— (i) the site, being part of a holding, of a house or other similar structure, and (ii) trees, wells and other improvements existing on the plots forming the holdings.” 10. The Settlement Officer, Consolidation only relied on the report of Consolidator and Assistant Consolidation Officer obtained in the month of January, 2006. What was the relevant entry in the Khatauni and Khasra when notification under Section 4 (2) was issued, has not been brought on record nor it has been proved that it was recorded as Abadi. There is nothing on the record to come to the conclusion that the land was a Abadi land and has lost its character of “land" as defined under U.P. Consolidation of Holdings Act, 1953. 11. The judgment relied by learned Counsel for the petitioner in the case of Triloki Nath (supra) was a case where the land was used for a brick kiln. There cannot be any dispute that a land which is being used for a brick kiln does not continue to be ‘land’ within the meaning of U.P. Consolidation of Holdings Act, 1953, whereas in the present case, only fact which has been brought on record is that the land is lying Parti on the spot and in some part of it, foundation has been dug for Abadi. The mere fact that at the time of report, the land was not cultivated, does not take out the land out of definition of ‘land’ under the U.P. Consolidation of Holdings Act, 1953. It is not even the case of the petitioner that for construction any permission was obtained for using the land for another purpose not connected with agriculture, horticulture or animal husbandry. The judgment in the case of Triloki Nath (supra) was on its own facts and does not help the petitioner in the present case. Similarly the judgment of this Court in the case of Ram Manorath (supra) was a case where the land was being used as Abadi and was declared chak out and constructions existed on the part of the land. Due to the aforesaid reason, this Court held that consolidation authorities have no jurisdiction to adjudicate. The judgment of the Apex Court in the case of Randhir Singh (supra) was a case where the apex Court held that buildings occupying the land and used for commercial purpose, are not covered under the U.P. Consolidation of Holdings Act, 1953. Due to the aforesaid reason, this Court held that consolidation authorities have no jurisdiction to adjudicate. The judgment of the Apex Court in the case of Randhir Singh (supra) was a case where the apex Court held that buildings occupying the land and used for commercial purpose, are not covered under the U.P. Consolidation of Holdings Act, 1953. There cannot be any dispute to the above proposition as laid down by the Apex Court, in the present case, neither any building has been constructed nor exists on the land in dispute. The judgment in the case of Prabhu Nath (supra) was also a case where the Court held that consolidation Courts had no jurisdiction to adjudicate about Abadi land. In the said case, findings were recorded by the authorities that the land was Abadi. In view of the aforesaid, this Court held that consolidation Courts had no jurisdiction. The judgment of this Court in the case of Kumar Lohar (supra) was again a case pertaining to Abadi land. The Court held that the land was in every sense of the term ‘Abadi land’. The last judgment relied by learned Counsel for the petitioner is in the case of Achchey Lal (supra), which was a case where the Consolidation Officer has held that the land in dispute was Abadi land and the said land was recorded as Abadi in C.H. Form 2-A. Higher Consolidation authorities did not set aside the findings of Abadi. In view of the above, this Court held that consolidation Courts had no jurisdiction. 12. In view of the aforesaid discussions, it is clear that the judgments, which have been relied by learned Counsel for the petitioner were judgments dealing with the cases where the land was occupied by building or was Abadi at spot which was not disputed. The present is a case where according to the order of Settlement Officer, Consolidation it was in favour of the petitioner. Only material on the record was a report of Consolidator and Assistant Consolidation Officer of January, 2006, stating that part of the land is Parti and in part of the land some foundation has been dug. The present is a case where according to the order of Settlement Officer, Consolidation it was in favour of the petitioner. Only material on the record was a report of Consolidator and Assistant Consolidation Officer of January, 2006, stating that part of the land is Parti and in part of the land some foundation has been dug. On the basis of the aforesaid two reports, it cannot be said that the land ceased to be ‘land’ within the meaning of U.P. Consolidation of Holdings Act, 1953, taking out the jurisdiction of the consolidation Courts to adjudicate on the rights of the parties on the land in dispute. 13. The Deputy Director of Consolidation has considered in details all aspects of the matter and the submission of the petitioner regarding applicability of U.P. Consolidation of Holdings Act, 1953 and U.P. Zamindari Abolition and Land Reforms Act and has rightly set aside the order of Settlement Officer, Consolidation and directed the Consolidation Officer to decide afresh after giving opportunity to the petitioner to lead evidence, I do not find any error in the order of Deputy Director of Consolidation, which may warrant any interference by this Court, while exercising the writ jurisdiction under Article 226 of the Constitution of India. 14. The writ petition is dismissed. ————