1. Heard Sri Ashutosh, Sri Girijesh Tiwari, Sri Vishram Tiwari and Standing Counsel who are appearing in the writ petitions for the parties. 2. WRIT - B No. - 35539 of 2013 has been filed for issue of mandamus directing the respondents to demarcate the chaks of village Tikaria, tappa Gaura, tahsil and district Gorakhpur as confirmed by Settlement Officer, Consolidation on 01.12.1984 and deliver possession to the chak holders on it. While WRIT - B No. - 38923 of 2013 has been filed for quashing the order of District Magistrate/District Deputy Director of Consolidation, Gorakhpur (respondent-2) dated 14.05.2013, by which he has constituted a Committee and directed to demarcate the chaks and deliver of possession over it, after disposal of grievances of the chak holders and for quashing the notification dated 27.11.1993/11.12.1993, under Section 52 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) relating to finalization and closing the consolidation operation in village Tikaria, tappa Gaura, tahsil and district Gorakhpur and for issue of mandamus directing the respondents to initiate fresh consolidation proceedings in the village under Section 4-A of the Act. Both the writ petitions are contradictory to each other as such these petitions are consolidated and heard together. Facts of the both the petitions are common. 3. By the notification dated 27.07.1981, under Section 4 (1) of the Act, consolidation operation was started in village Tikaria, tappa Gaura, tahsil and district Gorakhpur. After partal and framing Statements of Principle, in due course, the village was notified under Section 9 of the Act on 01.12.1982. Various objections under Section 9-A, 9-B and 9-C of the Act were filed in the village. During pendency of the disputes under Section 9-A, 9-B and 9-C of the Act, the Provisional Consolidation Scheme was framed under Section 19-A of the Act and notification under Section 20 was made on 28.02.1984. Thereafter, various objections under Section 20 of the Act were filed. Kripa Narain and others filed Writ Petition No. 1939 of 1985, praying therein that till disposal of title dispute, confirmation of Provisional Consolidation Scheme in the village be stayed. This Court, by order dated 28.02.1985, stayed the proceedings under Section 20 of the Act, in respect of the disputed land. Kripa Narain and others filed Writ Petition No. 1939 of 1985, praying therein that till disposal of title dispute, confirmation of Provisional Consolidation Scheme in the village be stayed. This Court, by order dated 28.02.1985, stayed the proceedings under Section 20 of the Act, in respect of the disputed land. In the meantime Provisional Consolidation Scheme of the village was confirmed by Settlement Officer Consolidation on 01.12.1984, but due to aforesaid stay order, demarcation of the chaks and delivery of possession over it to the chak holders was not done. Without demarcation of the chaks and delivery of possession, final consolidation records were prepared and on the report of consolidation authorities, the notification under Section 52 of the Act was published on 27.11.1993/11.12.1993, finalizing and closing the consolidation operation in village Tikaria, tappa Gaura, tahsil and district Gorakhpur. 4. Village Tikaria situated in north of river Rapti. In the meantime, in southern side of the village, a dam was constructed on the bank of river Rapti. Due to construction of the dam, about 60% of the consolidation area of the village has been affected as the land was acquired for construction of the dam and fixation of stone pillars to prevent fluvial action and intensive soil erosion. The remaining land situated in the southern side of the dam up to the bank of river Rapti has come within the range of fluvial action of the river. Writ Petition No. 1939 of 1985 was dismissed by this Court by judgment dated 04.05.2010. 5. Some of the villagers began to demand the consolidation authorities to demarcate the chaks and deliver possession over it according to the Provisional Consolidation Scheme as confirmed on 01.12.1984 (as amended time to time in the proceedings under Section 21 of the Act), while some of the villagers whose proposed chaks have gone either in the construction of dam or fallen towards southern side of the dam and affected due to fluvial action of river Rapti, began to oppose the demand of demarcation chak and delivery of possession over the confirmed chaks and they began to demand that fresh consolidation proceeding be started. The consolidation operation in the village was closed by notification dated 11.12.1993, as such the consolidation authorities realized legal obstacle in demarcation/delivery of possession over the chaks. The consolidation operation in the village was closed by notification dated 11.12.1993, as such the consolidation authorities realized legal obstacle in demarcation/delivery of possession over the chaks. District Magistrate/District Deputy Director of Consolidation, Gorakhpur (respondent-2) wrote a letter dated 03.01.2008, to Consolidation Commissioner, U.P. for cancellation of the notification under Section 52 of the Act. In the meantime, one Onkar Nath Tripathi filed Writ-B No. 26421 of 2012 for a mandamus to the Consolidation Commissioner, U.P. to take final decision on the letter of District Magistrate dated 03.01.2008. The writ petition has been disposed of by order dated 25.05.2012 directing the Consolidation Commissioner, U.P. to take decision in the matter. The Consolidation Commissioner, U.P. by his letter dated 26.12.2012 directed the District Magistrate to constitute a Committee to consider and decide the grievances of the parties and to demarcate/deliver possession over the confirmed chaks. In compliance of the aforesaid direction, District Magistrate by order dated 14.05.2013, constituted a Committee and directed to consider and decide the grievances of the parties and to demarcate/deliver possession over the confirmed chaks. Hence these writ petitions have been filed raising contradictory demands. 6. Sri Ashutosh Shukla, appearing for the petitioner in WRIT - B No. - 35539 of 2013 submitted that village was duly placed under consolidation operation. Entire exercise under Section 9-A, 9-B, 9-C and 21 of the Act have been completed and final consolidation records have been prepared. The Provisional Consolidation Scheme of the village has been confirmed on 01.12.1984. The demarcation/delivery of possession over the confirmed chak has illegally been stayed by the consolidation authorities although stay order dated 28.02.1985 was operative only for the petitioners of Writ Petition No. 1939 of 1985. The dam by the side of river Rapti has been constructed after confirmation of Final Consolidation Scheme. Writ Petition No. 1939 of 1985 has been dismissed on 04.05.2010. Now, there is no obstacle in demarcation/delivery of possession over the confirmed chaks. The orders of the Consolidation Commissioner U.P. dated 26.12.2012 and District Magistrate dated 14.05.2013 do not suffer from any illegality. Individual grievances of any chak holders will be considered by the Committee as directed by the District Magistrate. 7. Now, there is no obstacle in demarcation/delivery of possession over the confirmed chaks. The orders of the Consolidation Commissioner U.P. dated 26.12.2012 and District Magistrate dated 14.05.2013 do not suffer from any illegality. Individual grievances of any chak holders will be considered by the Committee as directed by the District Magistrate. 7. Sri Girijesh Tiwari, counsel for the petitioners in WRIT - B No. - 38923 of 2013 submitted that under Section 24 of the Act, Settlement Officer Consolidation is required to fix a date for enforcement of Final Consolidation Scheme. After such date, the chak holders are entitled to enter into possession of the chaks allotted to them. Demarcation of the chaks and delivery of possession is required to be done after enforcement of Final Consolidation Scheme under Section 28 of the Act. Admittedly Final Consolidation Scheme has not been enforced nor delivery of possession was done. Without completing proceedings under Section 24 and 28 of the Act, final consolidation records have illegally been prepared. As per report of Deputy Director of Consolidation dated 13.07.2012, the chaks of 25 chak holders have gone in construction of dam and 69 chak holders have gone in fluvial action of river Rapti and total 60% chak holders of the village are affected due to construction of the dam. At present, demarcation and delivery of possession over the chaks according to Final Consolidation Scheme as confirmed on 01.12.1984, is not possible, in as much as it is not possible for the consolidation authorities to give possession to 25 chak holders, whose chak have gone in construction of the dam. The chak holders whose land has now come in range of fluvial action of river Rapti due to construction of the dam, will suffer grave and irreparable loss, if they are given possession over it. The Committee constituted by District Magistrate will not be able to satisfy the grievances of these persons. Thus Final Consolidation Scheme cannot be enforced. In the circumstances of the case, the notification dated 27.11.1993/11.12.1993, under Section 52 of the Act, order of Consolidation Commissioner U.P. at Lucknow dated 26.12.2012 and order of District Magistrate/District Deputy Director of Consolidation, Gorakhpur (respondent-2) dated 14.05.2013, are liable to be quashed and mandamus be issued directing the respondents to initiate fresh consolidation proceedings in village Tikaria, tappa Gaura, tahsil and district Gorakhpur. 8. 8. I have considered the arguments of the parties and examined the record. Admittedly without enforcement of Final Consolidation Scheme under Section 24 and 28 of the Act, final consolidation records have been prepared and the village was notified under Section 52 of the Act on 27.11.1993/11.12.1993. Final consolidation records are prepared under the provisions of Section 27 of the Act, which provides that as soon as may be, after Final Consolidation Scheme has come into force, the District Deputy Director of Consolidation shall cause to be prepared for each village, a new map, field book and record of rights in respect of consolidation area. Thus the stages of preparation of final consolidation records and notification under Section 52 of the Act come after enforcement of Final Consolidation Scheme. The District Magistrate, in his letter dated 03.01.2008, himself recommended for cancellation of the notification under Section 52 dated 27.11.1993/11.12.1993. The Consolidation Commissioner U.P. in his letter dated 26.12.2012 although found that final consolidation records have been illegally prepared and notification under Section 52 of the Act has been published on its basis but held that as there is no provision under the Act for cancellation of the notification as such it could not be cancelled. Thus preparation of final consolidation records and the notification under Section 52 dated 27.11.1993/11.12.1993 are illegal and liable to be quashed. 9. The next question arises for consideration is as to whether, the Final Consolidation Scheme as confirmed on 01.12.1984 can be enforced at this time under Section 24 and 28 of the Act? In this respect, guide lines as given under Rule 17 of the U.P. Consolidation of Holdings Rules, 1954, for cancellation of consolidation operation may be noted. Rules 17 (a) provides that if the area is under a development scheme of such a nature as when completed would render the consolidation operation inequitable to a section of peasantry and Rule 17 (c) provides that the village is so torn up by party factions as to render proper consolidation proceedings in the village very difficult. In the present case, both the situations exist. In the present case, both the situations exist. From the report of Deputy Director of Consolidation dated 13.07.2012, it is apparent that due to construction of the dam by the side of river Rapti, delivery of possession to the 60% chak holders would render the consolidation operation inequitable to them as their chak in either gone in the construction of the dam or is falling in the southern side of the dam resulting to the fluvial action and intensive soil erosion. The Final Consolidation Scheme as confirmed on 01.12.1984 is liable to be cancelled, on the norms of Rule 17. Direction issued by Consolidation Commissioner U.P. dated 26.12.2012 and District Magistrate dated 14.05.2013, for its enforcement are liable to be quashed. 10. In the peculiar circumstances of the case, the village Tikaria can be divided into two units. First unit shall consists the land lying towards northern side of the dam and not affected with construction of the dam and the fluvial action of river Rapti and the second unit shall consists of the land lying in the southern side of the dam. So far as, the title disputes and disputes relating to partition of joint holdings are concerned, it need not required to be reopen for all the two units. However, from the stage of Statement of Principles, the consolidation operation in first unit of the land, as stated above, excluding the land acquired for construction of the dam, can be started and fresh Consolidation Scheme under Section 19-A can be prepared separately for the first unit. 11. So far as the land falling in the second unit, is concerned, the report of Deputy Director of Consolidation dated 13.07.2012 states that the land lying in southern side of the dam is affected with fluvial action and intensive soil erosion. By virtue of Explanation (ii) of Section 3 (2) of the Act, such land is excluded from the definition of 'holdings' for the purposes of 'consolidation'. However, the Settlement Officer Consolidation may again make spot inspection and consult the Consolidation Committee and the tenure holders whose land are lying in the southern side of the dam. By virtue of Explanation (ii) of Section 3 (2) of the Act, such land is excluded from the definition of 'holdings' for the purposes of 'consolidation'. However, the Settlement Officer Consolidation may again make spot inspection and consult the Consolidation Committee and the tenure holders whose land are lying in the southern side of the dam. If the land up to large extent in found suitable for consolidation and the tenure holders agree for consolidation then such area of the land be taken a separate unit and consolidation operation from the stage of Statement of Principles, can be started and fresh Consolidation Scheme under Section 19-A can be prepared separately for it. In case major portion of this land are not found fit for consolidation then consolidation proceedings for this unit be dropped. 12. In view of the aforesaid discussion, Writ -B No. 38923 of 2013 succeeds and is allowed. The notification dated 27.11.1993/11.12.1993, under Section 52 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) relating to village Tikaria, tappa Gaura, tahsil and district Gorakhpur, the order of Consolidation Commissioner U.P. dated 26.12.2012 and the order of District Magistrate/District Deputy Director of Consolidation, Gorakhpur (respondent-2) dated 14.05.2013, are set aside. The consolidation authorities are directed to divide the village Tikeria into two units. First unit shall consists the land lying towards northern side of the dam and not affected with the fluvial action of river Rapti, the second unit shall consists of the land lying in the southern side of the dam and start fresh consolidation operation from the stage of Statement of Principles, in the first unit, excluding the land acquired for construction of the dam as out of consolidation, and frame a fresh Consolidation Scheme under Section 19-A of the Act separately for the first unit. So far as the title disputes and disputes relating to partition of joint holdings for both unit are concerned, it need not be reopened. In respect of the land lying in southern side of the dam the procedure as suggested in paragraph-11 of this judgment may be followed. Writ -B No. 35539 of 2013 is dismissed. _____________