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2016 DIGILAW 1273 (ALL)

JASMIT SINGH v. STATE OF U. P.

2016-04-07

ANJANI KUMAR MISHRA

body2016
JUDGMENT Hon’ble Anjani Kumar Mishra, J.—Heard Sri B.B.Paul, learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. This writ petition has been filed seeking a writ of certiorari for quashing a notification issued by the Consolidation Commissioner, under Section 6(1) of the U.P. Consolidation of Holdings Act dated 28.9.2015. 3. It has been submitted that earlier consolidation operations were initiated in the unit in 1959. The Unit was brought under consolidation operations, a second time by a notification under Section 4-A(2) on 5.7.2013, however due to political interference, the consolidation operations were not permitted to continue, on account of which, Writ Petition No. 36083 of 2014 was filed by Sukhdev Singh and three others. 4. In this writ petition, a mandamus was sought directing the District Deputy Director of Consolidation, Shahjahanpur to start consolidation operations in pursuance of the gazette notification published on 10.8.2014. A counter affidavit was filed therein stating that a notification under Section 4(2) had been published in the gazette and a mistaken stand had been taken earlier, that this notification had not been issued and therefore consolidation operations could not proceed. 5. In the aforesaid scenario, the writ petition was dismissed as infructuous, since admittedly there was no reason why the consolidation operations could not proceed. 6. Subsequently another writ petition being writ petition No. 39888 of 2015 was filed by one Prahalad praying that consolidation operations be closed. This writ petition was disposed of with a direction to the petitioner to make a representation to the Consolidation Commissioner within two weeks which was required to be decided within four months thereafter. 7. Yet another writ petition being writ petition No. 58153 of 2015 was filed by one Hari Ram and others seeking directions for disposal of a representation dated 25.9.2015, seeking a notification under Section 6(1) of the Act. 8. The representation dated 25.9.2015 was a representation opposing the earlier representation for issuance of a notification under Section 6(1) of the Act, regarding which Writ Petition No. 39888 of 2015 was filed by Prahlad. 9. The writ Court vide order dated 9.10.2015 directed that the representation be also considered while considering the other representations for issuance of a notification under Section 6(1) of the Act. It was also directed that the Consolidation Commissioner would consider and record reasons for its acceptance and rejection of the representations. 10. 9. The writ Court vide order dated 9.10.2015 directed that the representation be also considered while considering the other representations for issuance of a notification under Section 6(1) of the Act. It was also directed that the Consolidation Commissioner would consider and record reasons for its acceptance and rejection of the representations. 10. Learned counsel for the petitioner submits that thereafter the impugned notification dated 28.9.2015 has been issued cancelling the notification under Section 4-A(2) dated 5.7.2013. As a consequence thereof, the consolidation operations in the unit, stand cancelled. 11. Referring to Section 4 of the U.P. Consolidation of Holdings Act, it is submitted that the word used in Sub-section 1 of Section 4 is “may”. It is further submitted that this power which vests in the State Government, has wrongly been delegated to the Consolidation Commissioner and that it is a case of excessive delegation. It is State Government alone which can exercise this power conferred by Section 4 and 6 of the Act. 12. In support of this contention, reliance has been placed upon the decision in the case of Siddharth Sarogi v. Calcutta Port Trust, 2015(4) SCC, especially paragraphs 41 to 51 thereof. 13. The second submissions made by learned counsel for the petitioner is that the impugned notification is ultra vires having been issued beyond the scope of Section 6 of the Act. 14. In support of this contention, he has placed reliance upon paragraphs 16, 17 and 18 of the writ petition. The aforesaid paragraphs 16, 17 and 18 are reproduced below— “16. That now without making any fact finding enquiry and further without considering mandatory requirements of Rule 17 of U.P.C.H. Rules, respondent consolidation commissioner has abruptly passed order dated 28.9.2015 under Section 6(1) of the U.P.C.H. Act cancelling notification under Section 4 of U.P.C.H. Act dated 5.7.2013. Copy of order of respondent No. 2 dated 28.9.2015 is attached herewith as Annexure-7. 17. That impugned order of respondent No. 2 dated 28.9.2015 (Annexure-7) is manifestly erroneous in law, arbitrary, discriminatory, perverse and without jurisdiction, besides being violative of principle of natural justice and fair play and the same has occasioned substantial failure and miscarriage of justice to the petitioner. 18. 17. That impugned order of respondent No. 2 dated 28.9.2015 (Annexure-7) is manifestly erroneous in law, arbitrary, discriminatory, perverse and without jurisdiction, besides being violative of principle of natural justice and fair play and the same has occasioned substantial failure and miscarriage of justice to the petitioner. 18. That before passing order dated 28.9.2015, respondent No. 2 did not give show-cause notice and opportunity of being heard to the petitioner and other co-tenure holders of village Gandhar, Pargana Jamaur, Tehsil Sadar, District Shahjahanpur and the same has occasioned substantial failure and miscarriage of justice to the petitioner.” 15. The next submission made is that the impugned notification has been issued without considering the representations made and is therefore contrary to the directions issued by the writ Court, besides being contemptuous. The notification is liable to be set aside on this short ground, alone. 16. The next submission is that in support of his representation, the petitioner had filed an affidavit which remained un-controverted. An un-controverted affidavit was necessarily required to be accepted and in ignoring such an un-controverted affidavit and issuing the impugned notification, the Consolidation Commissioner has committed manifestly illegality and the impugned notification deserves to be set aside. 17. Learned counsel for the petitioner has also placed reliance on the judgment reported in 1985 RD 110 and 2006 RD 226, wherein it has been held that the provisions contained in Rule 17 of the U.P. Consolidation of Holdings Rules are mandatory and it is only when one of the conditions specified therein stands satisfied that a notification under Section 6 of the Act can be issued. 18. It is lastly submitted that the judgment of the Division Bench in the case of Agricultural and Industrial Syndicate Limited v. State of U.P., 1976 RD 35, does not lay down the correct law. In the Division Bench decision in the case of Dalip Singh and others v. Vikram Singh and others, the question as to whether the provisions contained in Rule 17 are mandatory or not, has escaped consideration. He has therefore submits that the question as to whether the Rule 17 is mandatory or not is liable to be considered by a larger Bench so that the law in this regard can be settled finally. 19. He has therefore submits that the question as to whether the Rule 17 is mandatory or not is liable to be considered by a larger Bench so that the law in this regard can be settled finally. 19. Learned Standing Counsel on the other hand placed reliance upon the Division Bench decision in the case of Agricultural and Industrial Syndicate Limited (supra), wherein it was held that any interference by the writ Court in notifications under Sections 4 and 6 of the Act would amount to issuing directions to the legislature to legislate in a particular matter, which is beyond the scope of jurisdiction conferred by Article 226 of the Constitution of India. 20. I have considered the submissions made by the parties and have perused the record. 21. The first submission that requires consideration is as to whether the delegation of the powers conferred upon the State Government to issue notifications under Section 4 and 6 of the Act suffers from the vice of excessive delegation, which power has been delegated to the Consolidation Commissioner. 22. In this connection, it would be relevant to note that the power under Section 6(1) of the Act has been delegated to the Consolidation Commissioner vide notification No. 8313/1A-813/1954 dated 19.10.1956. This notification is not under challenge in the writ petition. It is also relevant to observe that there is no factual foundation for this plea of excessive delegation, has been laid in the writ petition or in the grounds taken therein. 23. In my considered opinion, since the notification, whereby the State Government had delegated its power, is not under challenge, there appears no necessity of dealing with the authorities cited as also submissions that have been made by learned counsel for the petitioner on this issue. Such consideration would be a purely academic exercise. 24. The second submission that requires consideration is that no reasons have been assigned for issuing the impugned notification and that the representations made both for and against this issue has not been considered or decided. 25. In this regard, it would be relevant to notice that under the Act, it is opinion of the State Government or the Authority to which this power has been delegated, to take a call as to whether the Unit has to be brought under consolidation operations or an existing notification is liable to be cancelled. 25. In this regard, it would be relevant to notice that under the Act, it is opinion of the State Government or the Authority to which this power has been delegated, to take a call as to whether the Unit has to be brought under consolidation operations or an existing notification is liable to be cancelled. There is nothing in the Act which provides for representations being made in this regard. In such view of the matter, the representations that may have been made were not statutory representations. 26. In my considered opinion, consideration of the representations made, if any, would be required only if the Act provided for such a representation. Besides, the Division Bench in the case of Agricultural and Industrial Syndicate Limited (supra) has held that the notifications under Sections 4 and 6 are conditional legislation. It is true that an authority which has the power to legislate on an issue may take recourse to consultation with the public at large. However, there is no mandatory requirement that the legislation must be made only after due consultation of the public at large or that it should specify the reasons for legislating one way or the other. 27. Besides, there is nothing on record to show that in fact, no decision was taken as was directed by the Writ Court. The instant writ petition is silent in this regard. It is quite possible that in fact prior to issuing the impugned notification under Section 6(1) of the Act, the Consolidation Commissioner had considered and disposed of the representations pending before him by a reasoned and speaking order. There is no categorical averment in the writ petition that no such decision was taken. 28. It is equally true that while issuing a notification under Section 6(1) of the Act, the authority concerned is not required to assign reasons. This has been categorically held by the Division Bench of this Court in the case of Agricultural and Industrial Syndicate Limited v. State of U.P. (supra). 29. The contention that the representation of the petitioner was supported by an affidavit which remained un-controverted and therefore, the impugned notification under Section 6(1) of the Act could not have been issued, is also without substance. The case law that has been cited, relates to judicial proceedings. The proceedings before the Consolidation Commissioner, if any,were not judicial proceedings. 29. The contention that the representation of the petitioner was supported by an affidavit which remained un-controverted and therefore, the impugned notification under Section 6(1) of the Act could not have been issued, is also without substance. The case law that has been cited, relates to judicial proceedings. The proceedings before the Consolidation Commissioner, if any,were not judicial proceedings. Since even the writ Court is not competent to direct the Government or its delegatee to legislate in a particular manner, it would be stretching things to far to hold that an authority competent to legislate on a point, must legislate on the basis of an affidavit, or un-controverted affidavit, for that matter. The submission made by the learned counsel for the petitioner therefore, in this regard, is wholly misconceived. 30. The only other point which survives for consideration is as to whether the provisions contained in Rule 17 of the Act are mandatory. I have in the judgment dated 31.3.2014 in a bunch of cases, the leading case wherein was Writ Consolidation No. 535 of 2015, Raja Ram Ojha v. Consolidation Commissioner and others, already considered this aspect and have held that the opening words in Rule 17 are : “the notification made under Section 4 of the Act may among other reasons be cancelled” are such that the conditions mentioned in Rule 17 are rendered merely illustrative. Anything which is only illustrative cannot be mandatory. The wording of Rule 17 is not such that would lead to a conclusion that these conditions are comprehensive or mandatory. Besides the Division Bench decision in the case of Agricultural and Industrial Syndicate Limited has already laid down that no reasons are required to be disclosed for issuing the notification either under Section 4 or Section 6 of the Act. It therefore, necessarily follows that it is the subjective satisfaction of the Authority competent to issue the notification which alone is of any consequence. If reasons are not to be assigned for issuing the notification, it is not open for the writ Court to scrutinize the reasons for the same. The conditions enumerated in Rule 17 are therefore, mere guidelines for the Authority taking the decision in this regard and for this reason also, the conditions in Section 17 cannot be held to be mandatory by any stretch of imagination. 31. The conditions enumerated in Rule 17 are therefore, mere guidelines for the Authority taking the decision in this regard and for this reason also, the conditions in Section 17 cannot be held to be mandatory by any stretch of imagination. 31. I therefore see no justification for referring this issue for consideration by a larger Bench. 32. Accordingly and in view of the above, the writ petition is found to be devoid of merits and is dismissed.