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2014 DIGILAW 1380 (ALL)

JAMAL AARA v. STATE OF U. P.

2014-04-29

ANJANI KUMAR MISHRA

body2014
JUDGMENT Hon’ble Anjani Kumar Mishra, J.—Both these two writ petitions raise similar controversy and arise from proceedings under Section 6-A of the U.P. Consolidation of Holdings Act and are therefore being taken up and decided together. 2. In WP No. 18930 of 2014 the question of succession was with regard to the land record in the name of one Hashmatullah who died on 1.6.2011 leaving behind a widow and seven married daughters. The widow also died on 12.2.2012. Thereafter an order was passed on 26.2.2012 in favour of the respondent No. 3 on the ground that she was the only unmarried daughter while her six sisters were all married. An appeal was filed by the heirs of one of the married daughters on the ground that respondent No. 3 was not unmarried. The mutation order was set aside on the ground that it was not a case of undisputed succession and also that the appeal was not maintainable as it was directed against an administrative order. The matter was remanded to the Consolidation Officer to issue notices to the parties and decide the dispute under Section 9 of the Consolidation of Holdings Act. The restoration filed by the respondent No. 3, Shama Parveen was dismissed which order was affirmed in revision. The writ petition has been filed by the six sisters of respondent No. 3 for a mandamus to the Consolidation Officer to decide the case remanded by the Settlement Officer Consolidation as the respondent No. 3 was trying to sell off the disputed property. 3. In wp No. 22882/2014 an order passed on 22.12.2013 under Section 6A in favour of the petitioner, mutating him in place of Chottan (deceased) was set aside in revision by the DDC on the finding that the said Chottan died in 1981 and ever since the parties had been litigating in various revenue Courts and before any final judgement could be passed, the village came under consolidation operations and therefore it was not a case of undisputed succession. Section 6-A was inserted in the U.P. Consolidation of Holdings Act, 1953 by means of U.P. Act No. 3 of 2002 with effect from 21.6.2002 and is quoted below : “[6-A. Special provision with respect to undisputed succession or transfer.—(1) After the publication of notification under sub-section (2) of Section 4 or Section 4-A and before start of the proceeding under Section 8, a case of undisputed succession shall be disposed of by the Consolidator, and a case of undisputed mutation on the basis of transfer shall be disposed of by the Assistant Consolidation Officer, in such manner and after making such inquiry as may be prescribed: Provided that no case shall be entertained, continued or disposed of under this section after start of the proceeding under Section 8. (2) An order made under sub-section (1) shall not be a bar to an objection under Section 9.” When these matter came up for admission, instructions were sought from the Standing Counsel which have been received and a copy of the same is taken on record. 4. A perusal of the instructions which have been forwarded on behalf of the Consolidation Commissioner, Uttar Pradesh, Lucknow indicate that at the time of Section 6-A was inserted in the Act no Rules were framing the relevant Rules is in progress. The aforementioned fact that no Rules have been framed till date is relevant in view of the sub-section (1) of the inserted provision, namely, Section 6-A which empowers the Assistant Consolidation Officer to pass orders in undisputed cases of succession or transfer after publication of notification under sub-section 2 of Section 4 or Section 4-A and before start of the proceedings under Section 8 in such manner and after making such enquiry as may be prescribed. 5. It is, therefore, clear that the manner in which such claims are to be decided and the procedure to be adopted and the aspects that are required to be considered etc. are to be in the manner as may be prescribed. 6. The word ‘prescribed’ means prescribed by Rules under the Act. This prescription by a rule is provided for in Section 4(33-A) of the U.P. General Clauses Act, 1904 read with Section 54 of the Act. are to be in the manner as may be prescribed. 6. The word ‘prescribed’ means prescribed by Rules under the Act. This prescription by a rule is provided for in Section 4(33-A) of the U.P. General Clauses Act, 1904 read with Section 54 of the Act. Since such prescription of the manner of disposal of a case of undisputed succession as also the enquiry to be made in such cases has not been provided for by framing rules, power conferred by Section 6A cannot be exercised. This view is supported by a decision of a Division Bench of this Court in the case of Virendra Kumar Tyagi v. Ghaziabad Development Authority and others, 2006 (1) AWC 834. 7. Thus any order passed in exercise of powers under Section 6A is illegal and without authority of law till such time the manner of disposal of such case and mode of enquiry to be made in such cases of undisputed succession is not prescribed by the Rules. 8. Since admittedly, the Rules have not yet been framed, and there is no procedure prescribed for the exercise of the power the provision conferred upon the Consolidator, the Consolidator is not empowered to exercise his powers under Section 6 till such time the Rules in this regard are framed and duly notified. 9. In view of the above, I am constrained to hold that the power under Section 6-A cannot be exercised till such time the Rules have been framed and under the circumstances any orders passed in exercise of powers under the said provisions are per se without jurisdiction. 10. I, therefore, issue a general mandamus to the authorities concerned not to pass any order in exercise of jurisdiction conferred by under Section 6-A of the U.P. Consolidation of Holdings Act till such time relevant Rules in this regard have been framed and duly notified. The Consolidation Commissioner is further directed to issue necessary directions to all the concerned authorities in the State of U.P to refrain to passing any orders under Section 6-A of the U.P. Consolidation of Holdings Act till such time the relevant Rules in this regard are framed and duly notified in accordance with law. 11. Accordingly and subject to the directions aforesaid, these writ petitions are disposed of. —————