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2013 DIGILAW 103 (ALL)

MAN MOHAN v. DEPUTY DIRECTOR OF CONSOLIDATION

2013-01-09

RAN VIJAI SINGH

body2013
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Shamimul Hasnain, learned counsel for the petitioner, Sri Krishan Ji Khare, learned counsel for respondent Nos. 3 and 4 and learned Standing Counsel. The affidavits have been exchanged. With the consent of learned counsel for the parties, the writ petition is taken up for final disposal. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the judgment and order dated 26.4.2012 passed by the Deputy Director of Consolidation (in short, ‘DDC’) in revision No. 57/2011-12 (Kamlesh Prasad v. Man Mohan and others), by which the revision filed by respondent Nos. 3 and 4 has been allowed and the chak of the petitioner has been disturbed. 2. While assailing this order, Sri Hasnain contends that the DDC has erred in allowing the revision. In his submission, in view of sub-section (e) of Section 19 of the U.P. Consolidation of Holdings Act, 1953 (in short, ‘the Act’), it was incumbent upon the DDC to allot the chak to the petitioner on his original holding, whereas in this case a udan chak has been given to the petitioner and the petitioner has been dislodged from his original holding. It is also contended that the provisions contained in Section 19 of the Act are mandatory in nature, therefore, non-compliance of that would render the proceeding of allotment void. Sri Hasnain has placed reliance upon the judgment of this Court in the case of Mohd. Nabi and another v. Deputy Director of Consolidation and others, 2005(99) RD 271, where the submission of the petitioner in that case was that the chak was carved out in violation of the provisions contained under Section 19 of the Act. This Court has allowed the writ petition taking note of the fact that the order was cryptic in nature and no reason was assigned for change of chak. Reliance has also been placed upon decision of this Court in Fatehchand Chaturvedi v. Joint Director of Consolidation, 2006(10) ADJ 313 . 3. Refuting the submissions of learned counsel for the petitioner, Sri Khare submits that the provisions contained under Section 19 of the Act are not mandatory in nature. Reliance has also been placed upon decision of this Court in Fatehchand Chaturvedi v. Joint Director of Consolidation, 2006(10) ADJ 313 . 3. Refuting the submissions of learned counsel for the petitioner, Sri Khare submits that the provisions contained under Section 19 of the Act are not mandatory in nature. He has further contended that although the udan chak has been given to the petitioner, but his area has not been reduced and he has been allotted chak in the same sector having facility of egress and ingress in the chak from two sides, as there are two chak roads at two sides of the petitioner’s chak, therefore, no infirmity can be attached with the view taken by the learned DDC. 4. I have heard learned counsel for the parties and perused the records. In the counter-affidavit, Sri Khare has annexed a map showing the spot position, from the perusal of which, it transpires that the petitioner, who happens to be chak holder of plot No. 473, was given chak at the western side, in the middle of the chak of the respondents. A rejoinder-affidavit has been filed, in which the factum of the spot position has not been disputed by the petitioner. What has been disputed is that the provisions contained under Section 19(e) of the Act are mandatory in character and the petitioner has been dislodged from his original holding, therefore, the order passed by the DDC is contrary to the provisions contained in Section 19(e) of the Act. The DDC, in his judgment, has recorded that the chak of the chak holders of plot Nos. 473, 158 and 527 were falling in the midst of the chak of the respondent Nos. 3 and 4, due to which the shape of his chak was disturbed and taking note of that he directed for carving out the chak of the petitioner at the north-western side, which is covered by chak road on two sides,i.e., north and west. 5. Learned counsel for the petitioner submitted that the provisions contained in Section 19(e) of the Act are mandatory and non-observance of that would render the proceeding vitiated. 6. 5. Learned counsel for the petitioner submitted that the provisions contained in Section 19(e) of the Act are mandatory and non-observance of that would render the proceeding vitiated. 6. For appreciating the controversy, provision contained under Section 19 of the Act would be necessary to be looked into, which reads as under: “19 (e) every tenure-holder is, as far as possible, allotted a compact area at the place where he holds the largest part of his holding; Provided that no tenure-holder may be allotted more chaks than three, except with the approval in writing of the Deputy Director of Consolidation: Provided further that no consolidation made shall be invalid for the reason merely that the number of chaks allotted to a tenure-holder exceeds three.” From the bare reading of the aforesaid section, it would transpire that every tenure-holder, as far as possible, be allotted a compact area at the place where he holds the largest part of his holding, provided that no tenure-holder may be allotted more chaks than three, except with the approval in writing of the Deputy Director of Consolidation; provided further that no consolidation made shall be invalid for the reason merely that the number of chaks allotted to a tenure-holder exceeds three. 7. Here in the present case, the petitioner’s case falls in the first part of sub-section (e) of Section 19 of the Act and the proviso are not attracted. There the words used are “as far as possible, the compact area at the place where the tenure-holder has his land, shall be allotted chak.” The language used in the section is unambiguous and clear. The allotment of chak at the largest holding is qualified by the word “as far as possible.” The use of the word “as far as possible” dilutes the rigor of section, which requires the allotment of chak at the largest part of original holding. Otherwise also, the very purpose of the Act is to give the compact holding to the convenience of the tenure-holder. 8. For holding a provision mandatory or directory, the use of words in the statute coupled with the intention of Legislature has to be seen. For deciding as to whether a particular provision is mandatory or directory, there can be no straight jacket formula. 8. For holding a provision mandatory or directory, the use of words in the statute coupled with the intention of Legislature has to be seen. For deciding as to whether a particular provision is mandatory or directory, there can be no straight jacket formula. The Supreme Court in the case of Dattatraya Moreshwar v. The State of Bombay and others, AIR 1952 SC 181 , has observed that a law which creates public duty is directory but if it confers private rights, it is mandatory. Relevant passage from this judgment is quoted below : “It is well-settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. When the provision of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done.” 9. A Constitution Bench of the Hon’ble Supreme Court in State of U.P. and others v. Babu Ram Upadhya, AIR 1961 SC 751 , while considering the issue as to whether a provision contained in a Statute is mandatory or directory, observed as under : “For ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.” 10. In Raza Buland Sugar Co. In Raza Buland Sugar Co. Ltd., Rampur v. Municipal Board, Rampur, AIR 1965 SC 895 ; and State of Mysore v. V.K. Kangan, AIR 1975 SC 2190 , whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the law-maker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other. 11. In Sharif-Ud-Din v. Abdul Gani Lone, AIR 1980 SC 303 , the Supreme Court, while considering the provisions of sub-section (3) of Section 89 of the J&K Representation of People Act, 1957, held that the difference between a mandatory and directory rule is that the former requires strict observance while in the case of latter, substantial compliance of the rule may be enough and where the statute provides that failure to make observance of a particular rule would lead to a specific consequence, the provision has to be construed as mandatory. The Apex Court held as under : “In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to sub-serve and its design and the context in which it is enacted. If the object of the law is required to be defeated by non-compliance with it, it has to be regarded as mandatory.....Whenever the statute provides that a particular act is to be done in a particular manner and also lays down that the failure to compliance with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.” 12. Similar view has been reiterated in Dinkar Anna Patil and another v. State of Maharashtra and others, (1999) 1 SCC 354 ; Shashikant Singh v. Tarkeshwar Singh, AIR 2002 SC 2031 ; Balwant Singh and others v. Anand Kumar Sharma and others, (2003) 3 SCC 433 ; Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and others, AIR 2003 SC 511 ; and Chandrika Prasad Yadav v. State of Bihar and others, AIR 2004 SC 2036 ). 13. 13. In view of the various decisions of the Apex Court, it is clear that while holding a particular statute as mandatory or directory, it would be necessary to look into the intention of the Legislature and the language used in the Statute. Here the section itself mentions that as far as possible compact area be allotted at the original holding, meaning thereby, it do not put any embargo that in case the allotment is not made at the original holding, it will render the allotment illegal. Therefore, I am of the considered opinion that the provisions contained under sub-section (e) of Section 19 of the Act is directory in nature not mandatory. 14. It would further appear from the spot memo and finding recorded by the DDC, the petitioner’s chak was falling in the midst of chak of respondent Nos. 3 and 4, therefore, the petitioner has been shifted at a corner. It is not the case of the petitioner that either his area has been reduced or he has been allotted chak at a land of excess valuation or upon a bad quality of land, therefore, the decision in the Mohd. Nabi (supra) case is at no help as in that case, the reason was not recorded while changing the chak and the order was cryptic. Here in the present case, valid reason has been recorded by the DDC in support of his order. 15. So far as the case of Fateh Chand Chaturvedi and another v. Joint Director of Consolidation, Allahabad and others, 2007(102) RD 171, is concerned, in this case the argument was that the petitioner was given chak over an area having excess valuation (land) in the plots which were situated near the river (nadihar) and in that context, the Court has inferred with the matter and quashed such allotment.ýÿ This case is also distinguishable on the facts. In view of the foregoing discussions, I do not find any illegality in the judgment and order dated 26.4.2012 passed by the Deputy Director of Consolidation. The writ petition fails and it is hereby dismissed. ——————