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2016 DIGILAW 712 (ALL)

KALPI DEVI v. CONSOLIDATION COMMISSIONER

2016-02-29

D.Y.CHANDRACHUD, YASHWANT VARMA

body2016
JUDGMENT Hon’ble Yashwant Varma, J.—A learned Single Judge by judgment and order dated 4 February 2016 has dismissed a writ petition preferred by the appellant laying challenge to a notification dated 9 September 2013 under Section 6 of the U.P. Consolidation of Holdings Act, 1953 (1953 Act). The notification dated 9 September 2013 brought to an end consolidation operations which had commenced in the unit in question pursuant to a notification issued under Section 4 of the Act on 6 November 1982. The writ petition itself has come to be dismissed by the learned Single Judge following the law laid down by two Division Benches of this Court and following them a judgment rendered by a learned Single Judge on a batch of writ petitions which had held that the issuance of a notification under Section 6 of the Act was an exercise of conditional legislative powers and which therefore, did not warrant interference or the issuance of any prerogative writ by the Court in exercise of its powers conferred by Article 226 of the Constitution. It is this view taken by the learned Single Judge which is sought to be questioned before us in appeal. 2. At the very outset it may be noted that the learned Counsel for the appellant does not question the principles of law as enunciated by the two Division Benches in Agricultural and Industrial Syndicate Limited v. State of U.P., 1976 RD 35 and Dalip Singh and 3 others v. Vikram Singh and 6 others, Special Appeal (Defective) No. 421 of 2015, decided on 7 July, 2015. Section 6 emobodies a conditional power of legislation upon the State Government or its delegate to bring the curtain down on consolidation operations which may have been commenced in the unit upon it being found that the continuance thereof would not be expedient in the public interest. The consolidation operations themselves are undertaken in a situation where the State Government forms the opinion that fragmented agricultural plots in a unit need to be consolidated in order to create homogeneous and larger holdings with a view to augment agricultural operations. Interference with the notification issued under Section 6 would clearly amount to this Court commanding the State Government to extend and implement a scheme of consolidation in an area even though in its opinion such a scheme can no longer or should not be enforced. Interference with the notification issued under Section 6 would clearly amount to this Court commanding the State Government to extend and implement a scheme of consolidation in an area even though in its opinion such a scheme can no longer or should not be enforced. The Division Bench in Agricultural and Industrial Syndicate Limited dealt with this aspect in the following terms: “There is yet another argument advanced by the learned counsel for the State which implies to reject the submissions made on behalf of the relief to it. If we were to allow this petition and quash the notification issued under Section 6 of the Act, the result would be in substance a direction to the State Government to continue consolidation proceedings in the area in question in spite of the fract that it has not considered it fit to do so in exercise of powers vested in it by the legislature. As already held, the notifications under Section 4 and 6 of the Act are issued by the State Government in exercise of conditional legislative powers. It cannot be conceivably contended that this Court can issue a mandamus to the legislature to legislate on any subject or to apply any law to any area. It was observed by the Supreme Court in The State of Bihar v. Sir Kamleshwar Singh, AIR 1952 SC 252 : “It cannot possibly have been intended that the legislature should be under an obligation to make a law in exercise of that power, for no obligation of that kind can be enforced by the Court against a legislative body.” 3. This Court obviously cannot issue a writ which would make it obligatory upon the State Government to enforce a scheme of consolidation in an area where in its opinion such a scheme should not or cannot be enforced. It would amount to compelling the State Government to exercise its power of conditional legislation. The law as declared by the Division Bench in Agricultural and Industrial Syndicate Limited has been consistently followed by this Court and stood reiterated in the recent pronouncement of the Court in Dalip Singh. We therefore find no ground which would warrant interference with the view taken by the learned Single Judge especially when the same was itself founded on what had been consistently held by the Division Benches of this Court. 4. We therefore find no ground which would warrant interference with the view taken by the learned Single Judge especially when the same was itself founded on what had been consistently held by the Division Benches of this Court. 4. The primary contention, however, which has been advanced on this appeal is that the rights of landholders had come to be perfected and crystallised consequent to possession having been handed over the newly carved out plots. Consequently it was submitted that the power conferred by Section 6 was not available to be exercised. It was submitted that once possession had been handed over to the landholders and they had been inducted upon the plots carved out during the course of consolidation operations, all rights as may have existed in a tenure holder in respect of his original holding came to an end and by virtue of the provisions of the Act, the rights, title, interest and liabilities came to be conferred and reposed in the tenure holder in and over the newly carved out plots. It was therefore submitted that the proceedings for all intents and purposes attained a status of finality leaving just the issue of a formal notification under Section 52 evidencing a closure of the consolidation operations. In light of the above, it was submitted that the power conferred upon the State Government by virtue of Section 6 although liable to be exercised at any time could not be stretched to extend to a stage where the rights of landholders stood irreversibly and irretrievably altered. To appreciate the aforesaid submission, it would however, be apposite to first refer to the pleadings as they existed before the learned Single Judge as well as to certain additional material which has been brought on record by means of the present appeal. 5. The writ petition as framed referred to the fact that a provisional consolidation scheme had come to be notified on 31 August 1985. Pursuant to the promulgation of the provisional consolidation scheme, the appellant is also stated to have deposited certain monies. The appellant further averred that no objections had been filed against the allotment of chaks made in her favour and that she was inducted into possession. Pursuant to the promulgation of the provisional consolidation scheme, the appellant is also stated to have deposited certain monies. The appellant further averred that no objections had been filed against the allotment of chaks made in her favour and that she was inducted into possession. It was further disclosed in paragraphs 9, 10 and 11 of the writ petition that against the valuation of certain chaks the appellant had preferred an appeal which was disposed of by the Settlement Officer, Consolidation and appropriate amendments were made in the provisional consolidation scheme. Reference was also made to certain revisions preferred by certain other landholders before the Deputy Director of Consolidation as well as to a writ petition stated to have been instituted before this Court in 1995. The primary ground of challenge as laid in the writ petition and which is evidenced from the pleadings was that the issuance of the notification under Section 6 of the Act almost 31 years after the commencement of consolidation operations and after much progress had been made pursuant thereto including correction of records, field-book and village maps was arbitrary. 6. A counter-affidavit was filed by the State respondents in the writ proceedings and in paragraph 6 thereof it was averred that although consolidation operations had commenced on 19 November 1982 and steps were taken up to the carving of plots and a provisional consolidation scheme being notified, no further steps as contemplated by Section 24 and other provisions of the Act could be taken. Reference was made to the pendency of two writ petitions and interim orders made thereon as a consequence of which delivery of possession was held up and no further progress was made. The State respondents further asserted that since the situation in the village itself had changed over the course of 29 years, there appeared to be no justification to complete and implement the provisional consolidation scheme which itself was based upon evaluations undertaken in the year 1982-83 and the state of the holdings as they stood then. Although a rejoinder-affidavit was filed before the learned Single Judge these material facts were not traversed or effectively denied. The only plea that was reiterated was that there was no justification for the exercise of powers conferred by Section 6 of the Act after a lapse of 31 years. 7. Although a rejoinder-affidavit was filed before the learned Single Judge these material facts were not traversed or effectively denied. The only plea that was reiterated was that there was no justification for the exercise of powers conferred by Section 6 of the Act after a lapse of 31 years. 7. We may further note that alongwith the affidavit filed in these proceedings various new materials and evidence have been sought to be brought on record. This includes photographs of alleged constructions and certain sale-deeds. We are not inclined to permit the admission of this additional material for two reasons. Firstly, the appeal is not accompanied by any application seeking permission to bring on record additional material. Secondly, no statement has been made before us either on affidavit or in the course of oral submissions that despite due care and diligence having been exercised by the appellant, the additional material could not be obtained by the appellant so as to be filed before the learned Single Judge. Additionally we may note that photocopies of the sale-deeds which have been brought on record do not indicate the same having been registered in accordance with law and therefore, no credence can be placed upon them. In any view of the matter, in our opinion, the appeal is liable to fail on grounds which are not affected by the material which is sought to be introduced in these proceedings. However, before we proceed to indicate our reasons for arriving at the above conclusion, it may be relevant to briefly notice the scheme of the Act and its salient provisions. 8. As the Statement of Object and Reasons of the Act would disclose, the Act was promulgated to provide for the consolidation of agricultural holdings in the State. Its provisions were primarily aimed at allotting a compact area to a tenure holder in lieu of scattered plots so that large scale cultivation with attendant advantages may be undertaken. With a view to consolidate such scattered plots and to carve out and allot compact areas, consolidation operations commence with the issuance of a notification under Section 4 upon the State Government forming the opinion that the unit is liable to be brought under consolidation operations. Upon a notification so being issued, the duty of maintaining the record of rights and preparation of the village map and the field-books stands transferred and entrusted to the consolidation authorities. Upon a notification so being issued, the duty of maintaining the record of rights and preparation of the village map and the field-books stands transferred and entrusted to the consolidation authorities. By virtue of the provisions of Section 5 of the Act upon the issuance of a notification under Section 4 all proceedings for correction of records and suits or other proceedings in respect of declaration of rights or interest in any land comprised in the said notification and pending before any Court or authority whether of the first instance or of appeal, reference or revision shall upon an order being made in that behalf stand abated. By virtue of the second proviso appended to sub-section (2) of Section 5, the order of abatement stands vacated upon the issuance of a notification under Section 6. Section 6 of the Act confers a power upon the State Government to cancel a notification issued under Section 4 at any time in respect of the whole or any part of the area comprised in the said notification. Sub-section (2) provides that upon cancellation of the notification under Section 4, the area comprised therein shall cease to be under consolidation operations with effect from the date of cancellation subject of course to such final orders relating to correction of land records which may have been passed on or before the date of cancellation. In terms of the provisions of Sections 7 and 8 of the Act, the Deputy Director of Consolidation is enjoined to undertake an exercise of preparation and revision of the village map, field-book, annual register and other records. By virtue of the provisions of Section 8-A a “Statement of Principle” is drawn up detailing areas which may be earmarked for extension of abadi, land that may be earmarked for public purposes and the standard plots for each unit. Upon preparation of the records and the “Statement of Principle” objections thereto are invited in terms of Section 9 of the Act. Sections 9-A and 9-B detail the procedure to be followed for disposal of objections by the Assistant Consolidation Officer. Upon disposal of the objections, the annual register of the unit is revised and prepared in terms of the provisions of Section 10. Sections 9-A and 9-B detail the procedure to be followed for disposal of objections by the Assistant Consolidation Officer. Upon disposal of the objections, the annual register of the unit is revised and prepared in terms of the provisions of Section 10. A party aggrieved by an order of the Assistant Consolidation Officer passed in proceedings taken under Section 9-A may prefer an appeal to the Settlement Officer, Consolidation as per the provisions of Section 11. Section 19 lays down the guidelines that must be borne in mind while preparing a consolidation scheme. The Assistant Consolidation Officer in consultation with the Consolidation Committee then proceeds to draw up a provisional consolidation scheme which is then published in accordance with the provisions of Section 20 of the Act. Any person affected by the provisional consolidation scheme is conferred the right to prefer objections thereto. The objections to the provisional consolidation scheme are considered and disposed of by the Assistant Consolidation Officer. Any person aggrieved by an order passed by the Consolidation Officer may prefer an appeal to the Settlement Officer, Consolidation. By virtue of the provisions of Section 23, the Settlement Officer, Consolidation proceeds to confirm the provisional consolidation scheme after disposal of all objections or in a case where no objections are preferred within the time prescribed under Section 20. The allotment of plots to the tenure holders which stand detailed in the provisional consolidation scheme are liable to be revised in light of orders that the Settlement Officer, Consolidation may pass under Section 23. These orders of allotment are treated to be the final allotment orders subject to the other provisions of the Act. Upon disposal of the said objections, the Settlement Officer, Consolidation by virtue of the provisions of Section 24 proceeds to fix a date to be notified in the unit from which the final Consolidation Scheme shall come into force. On and after the date so notified a tenure holder is entitled to enter into possession of the plots allotted to him. Upon the final consolidation scheme being brought into force, the Deputy Director of Consolidation proceeds to prepare a new map, field-book and record of rights in respect of the consolidation area in terms of Section 27. On and after the date so notified a tenure holder is entitled to enter into possession of the plots allotted to him. Upon the final consolidation scheme being brought into force, the Deputy Director of Consolidation proceeds to prepare a new map, field-book and record of rights in respect of the consolidation area in terms of Section 27. Section 28 enjoins the Assistant Consolidation Officer to put a tenure holder who has been allotted land under the final consolidation scheme in actual physical possession of the allotted plots. The section confers upon the Assistant Consolidation Officer all powers as may be exercised by a Civil Court in execution of a decree for delivery of possession of immovable property. Section 30 then proceeds to set forth the consequences which shall ensue upon exchange of possession. The said provision being relevant for our purposes is extracted herein below: “30. The section confers upon the Assistant Consolidation Officer all powers as may be exercised by a Civil Court in execution of a decree for delivery of possession of immovable property. Section 30 then proceeds to set forth the consequences which shall ensue upon exchange of possession. The said provision being relevant for our purposes is extracted herein below: “30. Consequences which shall ensue on exchange of possession.—With effect from the date on which a tenure- holder enters, or is deemed to have entered into possession of the chak allotted to him, in accordance with the provisions of this Act, the following consequences shall ensue— (a) the rights, title, interest and liabilities— (i) of the tenure-holder entering, or deemed to have entered, into possession, and (ii) of the former tenure-holder of the plots comprising the chak, in their respective original holdings shall cease; and (b) the tenure-holder entering into possession, or deemed to have entered into possession, shall have in his chak the same rights, title, interests and liabilities as he had in the original holdings together with such other benefits of irrigation from a private source, till such source exists, as the former tenure-holder of the plots comprising the chak had in regard to them; (c) lands vested in the Gaon Sabha, or any local authority and allotted to the tenure-holder shall be deemed to have resumed by the State Government under the provisions of Section 117 or Section 117-A, as the case may be, of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, and settled with the tenure-holder; (d) the rights of the public as well as all individuals in or over land included in a chak following a declaration made under the proviso to sub-section (2) of Section 19-A shall cease and be created in the land specified for the purpose in the final Consolidation Scheme; and (e) the encumbrances, if any, upon the original holding of the tenure-holder entering, or dceemed to have entered, into possession, whether by way of lease, mortgage or otherwise, shall, in respect of that holdings, cease, and be created on the holdings, or on such part thereof, as may be specified in the final Consolidation Scheme.” 9. As would be evident from the provisions of Section 30, upon the final consolidation scheme being notified, the tenure holder sheds off all rights, title and interests in the original holding and simultaneously acquires and is clothed with similar rights, title and interests in the newly carved out and allotted plots. This transition however takes place only after the final consolidation scheme has been formulated and a date has been notified from when the same would be deemed to have come into effect in the unit. It is only after this stage is crossed that the land holder acquires a right to be in and claim possession over the newly allotted plots. Having thus noticed the relevant provisions and the various preparatory steps which ultimately lead upto the promulgation of the final consolidation scheme, it is apparent that the terminal or determinative point is where the tenure holder enters or is put into possession of the chak allotted to him. Sections 20 and 23 of the Act deal with a stage where the consolidation scheme is still provisional in character. It is only after the Settlement Officer, Consolidation has disposed of all objections to the provisional consolidation scheme that the allotment orders made in respect of individual tenure holders are conferred finality. This finality, it may be noted even at the stage of Section 23 is made subject to the other provisions of the Act. This aspect assumes significance in light of the fact that even after the Settlement Officer, Consolidation disposes of objections to the provisional consolidation scheme, a person aggrieved by such an order made by the said authority is conferred the right of assailing the same by way of revision and reference under Section 48. Section 48, it may be noted confers upon the Director of Consolidation a right to call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purposes of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order other than one which is interlocutory in character. The width and amplitude of the power vested in the Director of Consolidation by virtue of Section 48 is evident from Explanation (3) appended to the said provision which confers upon him the power to also examine any finding whether of fact or of law as also the power to reappreciate any oral or documentary evidence. Viewed in light of the above, it is apparent that the power conferred upon the Director of Consolidation is not as narrow or constricted as a revisional power is generally understood. The extinguishment of rights, title, interest and liabilities of a tenure holder comes into effect from the time he enters into the possession of the chaks allotted to him by virtue of Section 30. However, the tenure holder is entitled to enter into possession of the plots allotted to him on or after the date notified by the Settlement Officer, Consolidation from which the final consolidation scheme is to come into force. The facts of the present case may now be viewed in light of what we have found to be the statutory regimen as prescribed by the Act. 10. It is significant to note here that neither in the writ petition nor in the appeal is there any averment, material or evidence to indicate when the final consolidation scheme was enforced in the unit concerned. There is also no assertion by the appellant of any date having been notified from when the final consolidation scheme was to come into effect. This aspect assumes significance in light of the fact that it was the categorical case of the State respondents that no proceedings as envisaged by Section 24 were undertaken and that only a provisional consolidation scheme had been published in the unit. The State respondents, it may be recalled had clearly averred that on account of the pendency of various revisions and the interim orders passed on two writ petitions further proceedings could not be undertaken and possesion could not be handed over. These averments as we have noted above were not effectively traversed by the appellant in rejoinder. Since no final consolidation scheme was published nor a date notified from when the same would come into effect in the unit in question, the eclipse or transition envisaged by Section 30 never occurred. These averments as we have noted above were not effectively traversed by the appellant in rejoinder. Since no final consolidation scheme was published nor a date notified from when the same would come into effect in the unit in question, the eclipse or transition envisaged by Section 30 never occurred. In the absence of a final consolidation scheme being notified, the appellant acquired no right to be put into possession over the newly carved out plots. In fact there is no material on record which may indicate let alone evidence the appellant being inducted into possession in accordance with the provisions of the Act. This obviously because that stage was never reached. 11. Although the appellant averred that she had been put into possession, this statement was not evidenced or supported by any evidence or material on record. As noted above, Section 28 confers upon the Assistant Consolidation Officer the same powers as a Civil Court while executing a decree for possession of an immovable property. This power conferred upon the Assistant Consolidation Officer stands reiterated in Rule 55 of the U.P. Consolidation of Holdings Rules, 1954 (1954 Rules) which mandates that the procedure to be followed in putting tenure holders into actual physical possession over the chaks or land allotted to them shall be the same as prescribed in the Civil Procedure Code for delivery of possession over an immovable property in execution of a decree. The procedure prescribed under the Civil Procedure Code in this respect stands duly enumerated in Order XXI Rules 35 and 36. Rules 35 and 36 of Order XXI also envisage the concerned Court issuing a warrant in Form No. 11 in cases where the immovable property is in the occupation of a person who refuses to relinquish such occupancy. Both the writ petition as well as the appeal are conspicuously silent on this aspect of the matter. Apart from a bald statement that the appellant was in possession there was no material or evidence on the basis of which the appellant could establish that she was inducted into possession in accordance with the provisions of the Act over the chaks allotted to her. This is of course without prejudice to what we have found above namely the absence of a final consolidation scheme having been notified in the unit. This is of course without prejudice to what we have found above namely the absence of a final consolidation scheme having been notified in the unit. The entire bedrock of the submissions of the learned counsel for the appellant was based upon her having been inducted into possession over the newly carved out chaks. The issue of possession being granted over the newly carved out chaks could arise only after a final consolidation scheme had been notified. The notification would have to specify the date from which the final consolidation scheme would come into effect in the unit. We have found that no final consolidation scheme was promulgated. Consequently the question of old rights, interests and liabilities being extinguished and new ones being created and conferred did not arise at all. It was the categorical case of the State that no steps as envisaged under Section 24 were ever undertaken. This appears to be in light of the pendency of various revisions and writ petitions upon which interim orders operated. Consequently it appears that possession was never handed over to the appellant or the other land holders in and over the newly carved out chaks. In light of the above, we find ourselves unable to accept the submission of the learned counsel that the proceedings had reached an irreversible stage and at which point no notification under Section 6 of the Act could have been issued. 12. We may note that dealing with pari materia provisions of the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 and a similar challenge to a notification bringing to an end consolidation operations, the Supreme Court in Harbhajan Singh v. State of Himachal Pradesh, (2010) 13 SCC 555 , held as follows : “28. It is, thus, clear that it is only when the persons entitled to possession of holdings under the Act have been delivered possession of the holdings that they acquire rights, title and interest in the new holding allotted to them and the consolidation scheme in the area is deemed to have come into force. Till such possession of the allotted land under the consolidation scheme is delivered to the allottees and the consolidation scheme is deemed to come into force, the State Government has the power under Section 16(1) of the Act to cancel the declaration under Section 14(1) of the Act. Till such possession of the allotted land under the consolidation scheme is delivered to the allottees and the consolidation scheme is deemed to come into force, the State Government has the power under Section 16(1) of the Act to cancel the declaration under Section 14(1) of the Act. For this conclusion, we are supported by the decision of the Full Bench of the Punjab High Court in Chahat Khan Bahadur Khan v. State of Punjab, AIR 1966 Punj. 111, cited by Mr. Narasimha.” 13. Lastly we may note that the submissions advanced on this appeal are not liable to be countenanced in light of the provisions of sub-section (2) of Section 6 also. As noticed above, sub-section (2) of Section 6 saves those orders relating to correction of land records which may have attained finality prior to the issuance of the notification. Although no such orders were relied upon before the learned Single Judge, even assuming that the same had come to be made prior to the issuance of the notification under Section 6 and had attained finality, no prejudice stands caused to the appellant as they would in any eventuality stand saved by virtue of Section 6(2) of the Act. 14. We therefore, find no merit in the submissions urged by the learned counsel on this appeal which consequently fails and is accordingly dismissed.