# (2015) 1 ILRA 54

- **Citation:** (2015) 1 ILRA 54
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-11-08
- **Case number:** Civil Misc. Writ Petition No. 28049 of 2014
- **Bench:** Anjani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2015-1-ilra-54-43223
- **Pages:** 6

## Headnote

C.S.C., Sri R.C. Upadhyay
U.P.
Consolidation
of
Holdings
ActSection-6(1) read with Consolidation
Rules-17-Cancellation of consolidation
operation challenged on allegations of
non
compliance
of
Rule
17-heldprovision of Rule 17 are illustrative and
not exhaustive as per law of D.B. so for
non
assignment
of
any
reason
is
concern-also misconceived as per law
Industrial Syndicate Bank case-power
delegated to director of consolidation by
notification 1956-without challenges-no
finding required.
Held: Para-10
Besides, this submission has already
been considered and decided by the
judgement passed by me in a bunch of
cases, while sitting in Lucknow Bench,
wherein the leading case was Writ
(Consolidation) No. 535 of 2013: decided
on 13.3.2014. By this judgement, relying
upon a Division Bench decision reported
in 1976 RD 35: Industrial Syndicate Ltd.
Versus State of U.P. it has been held that
the notifications issued under section 6(1)
of the Act are conditional legislation and,
therefore, can be challenged only on the
grounds available for challenging any piece
of legislation. No such ground has been
raised in any of these writ petitions, and,
therefore, they are liable to be dismissed in
view of the earlier decision noted above.
(B)U.P. Consolidation of Holdings Act, -
Section 6(1)-writ of mandamus-seeking
enforcement of direction as the local
consolidation authorities-not proceeded
for cancellation of consolidate operationheld-provision of section 6(1) of Act
being part of conditional legislation-in
absence of competence or being ultra
virus-no direction can be issued-petition
misconceived-dismissed.
Held: Para-16
As already noticed above, the notification
under section 6(1) of the Act is a piece of
conditional legislation. It is within the
competence of the legislature to legislate in
the manner it thinks appropriate. In my
opinion, such conditional legislation can b

## Text

54
 INDIAN LAW REPORTS ALLAHABAD SERIES
efforts
were
made
by
the
respondents.They have proceeded to hold
that he was permanently incapacitated to
continue in service without considering
the effect of other provisions of Section
47 of the Act. "
12. In the instant case recourse has
been taken to Rule 27(c) of Service
Regulation
1978
pertaining
to
appointment of Cadre Secretary which
provides that on account of long medical
incapacitation of an employee a decision
can be taken to retire him from service.
13. Present is not a case of medical
incapacitation of an employee rather it is
case where the petitioner has acquired
disability during his service. The word
"disability" has been defined in section
2(i) of PWD Act 1995.Section 47 of the
Act clearly provides that the services of
employee could not be dispensed with if
he has acquired disability during his
service. The recourse of Rule 27(s) of
Regulations of Rules pertaining to Cadre
Secretary could not be taken and the
petitioner could not have been retired
from 8.12.2011.Petitioner has a statutory
right to continue in service till the age of
superannuation. He is entitled to continue
in
service
or
another
suitable
post/sheltered job which should be
offered to the petitioner till age of
retirement on the same payscale and
service benefit.
14. The respondents have proceeded
to
hold
that
the
petitioner
was
permanently medically incapacitated to
continue in service and had retired him
without considering the effect of PWD
Act 1995. The order dated 8.12.2011
passed
by
respondent
no.4
District
Administrative Committee retiring the
petitioner from the service is,therefore,
illegal and is hereby set aside. However,
at this stage the submission of the learned
counsel
for
the
petitioner
needs
consideration that the petitioner does not
want to continue in service and has had
suffered a lot on account of repeated
litigations and enormously suffered as a
result of his disability and inhumane
approach adopted by the respondents. He
has,therefore, decided not to challenge the
order of retirement but the petitioner is
pressing his entitlement for full payment
and all service benefits till date of his
retirement i.e. till 8.12.2011.
15. In view of this submission, while
setting aside the order dated 8.11.2012
retiring the petitioner from service,the
respondents are directed to pay the
petitioner entire arrears of salary till
8.11.2012 along with all services benefit
admissible to the petitioner with interest
@ 9% till the date of actual payment. It is
directed that computation be done and
payment shall be made to the petitioner
within a period of two months from the
date a certified copy of this order is
produced.
16.

In
view
of
the
above
observation, the order passed by the
Assistant
Registrar
dated
12.9.2011
denying salary to the petitioner on
account of his absence during the period
of medical leave with effect from
1.7.2006 is unsustainable and is hereby
set aside.
17. With the above direction,the writ
petition is allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2014
1 All]. Daswant Ram Vs. Consolidation Commissioner U.P. & Ors.
55
BEFORE
THE HON'BLE ANJANI KUMAR MISHRA, J.
Civil Misc. Writ Petition No. 28049 of 2014
connected with
WRIT - B No. 35709 of 2014, WRIT - B No. - 61754 of
2014, WRIT - B No. - 62775 of 2014, WRIT - B No. -
45974 of 2011, WRIT - B No. - 42349 of 2014, WRIT - B
No. - 48014 of 2014, WRIT - B No. - 15297 of 2014,
WRIT B No. - 11369 of 2014, WRIT- B No. - 51548 of
2014, WRIT - B No. - 50816 of 2014, WRIT - B No. -
34567 of 2014, WRIT - B No. - 27643 of 2014, WRIT - B
No. - 24386 of 2014, WRIT - B No. - 26995 of 2014,
WRIT - B No. - 28050 of 2014, WRIT - B No. - 28842 of
2014, WRIT - B No. - 40719 of 2014, WRIT - B No. -
41037 of 2014, WRIT - B No. - 27137 of 2010, WRIT - B
No. - 67061 of 2014 and WRIT - B No. - 6121 of 1979
Daswant Ram
...Petitioner
Versus
Consolidation Commissioner U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Nand Lal Yadav, Sri Prem Chandra
Counsel for the Respondents:
C.S.C., Sri R.C. Upadhyay
U.P.
Consolidation
of
Holdings
ActSection-6(1) read with Consolidation
Rules-17-Cancellation of consolidation
operation challenged on allegations of
non
compliance
of
Rule
17-heldprovision of Rule 17 are illustrative and
not exhaustive as per law of D.B. so for
non
assignment
of
any
reason
is
concern-also misconceived as per law
Industrial Syndicate Bank case-power
delegated to director of consolidation by
notification 1956-without challenges-no
finding required.
Held: Para-10
Besides, this submission has already
been considered and decided by the
judgement passed by me in a bunch of
cases, while sitting in Lucknow Bench,
wherein the leading case was Writ
(Consolidation) No. 535 of 2013: decided
on 13.3.2014. By this judgement, relying
upon a Division Bench decision reported
in 1976 RD 35: Industrial Syndicate Ltd.
Versus State of U.P. it has been held that
the notifications issued under section 6(1)
of the Act are conditional legislation and,
therefore, can be challenged only on the
grounds available for challenging any piece
of legislation. No such ground has been
raised in any of these writ petitions, and,
therefore, they are liable to be dismissed in
view of the earlier decision noted above.
(B)U.P. Consolidation of Holdings Act, -
Section 6(1)-writ of mandamus-seeking
enforcement of direction as the local
consolidation authorities-not proceeded
for cancellation of consolidate operationheld-provision of section 6(1) of Act
being part of conditional legislation-in
absence of competence or being ultra
virus-no direction can be issued-petition
misconceived-dismissed.
Held: Para-16
As already noticed above, the notification
under section 6(1) of the Act is a piece of
conditional legislation. It is within the
competence of the legislature to legislate in
the manner it thinks appropriate. In my
opinion, such conditional legislation can be
challenged either on the ground of lack of
legislative competence or on the ground
that it is ultra vires. No such plea has been
raised in the writ petition and, therefore, it
is liable to be dismissed. For the same
reason, this Court is not competent to issue
a
mandamus
directing
the
State
Government to cancel the notifications
issued under section 6(1) of the Act, nor
directions can be issued to the State
Government to issue a notification under
section 6(1) and cancel the consolidation
operations.
Therefore,
the
relief
for
mandamus is misconceived and no such
mandamus can be issued by this Court.
Case Law discussed:
1976 RD 35;
(Delivered by Hon'ble Anjani Kumar Mishra, J.)
1.
This bunch of writ petitions
involve similar controversy and can be
broadly categorized into following groups.
56
 INDIAN LAW REPORTS ALLAHABAD SERIES
2.
In the first group of cases, the
notifications issued under section 6(1) of
the U..P. Consolidation of Holdings Act
(for short, the Act), cancelling the
consolidation operations in the unit are
under challenge. This group includes the
following writ petitions: WRIT - B Nos. -
11369, 24386, 27643, 28050, 28842,
40719, 41037, 45974, 50816, 51548,
61754 and 67061, all of the year 2014.
3.
In the second group of cases, a
mandamus has been sought, commanding
the respondents to take an appropriate
decision on the representations made by the
petitioners therein, seeking cancellation of
the consolidation operations. In this group
are WRIT -B NOS. 27237, 35709, and
62775, all of 2014.
4.
The third group consists of cases
where the representations made by the villagers
for canceling the consolidation operations have
been rejected. In this group are WRIT -B NOS
27137 of 2010 and 28049 of 2014.
5. The fourth group consists of cases
where recommendations have been made
by the consolidation authorities for
issuance of notifications under section
6(1) of the Act. These are WP Nos. 42349
and 34567, both of 2014. In these two
cases, a writ of mandamus has been
sought for enforcing the recommendations
made.
6.
In WP No. 26995 of 2014, the
recommendation made for issuance of
notification under section 6(1) of the Act has
been challenged.
7. Under the circumstances, it would
be
appropriate
to
consider
the
aforementioned
categories
of
cases
separately.
8. In the first group of cases, the
argument is that the notifications under
section 6(1) are not in consonance with
Rule 17 of the Rules framed under the
Act. The second contention raised is that
the consolidation operations have been
largely completed and, therefore, the
same should not be canceled. It has also
been
argued
that
the
notifications,
canceling the consolidation operations,
can be issued only when the conditions
specified in Rule 17 are made.
9. As far as the argument regarding
non-compliance
of
the
conditions
enumerated in Rule 17 of the Rules is
concerned, it would suffice to state that
the conditions enumerated in Rule 17 are
only illustrative and not exhaustive as is
clear from a bare reading of the rule itself,
which provides that "the notification
made under Section 4 of the Act, may
among other reasons, be cancelled in
respect of whole or any part of the area on
one or more of the following grounds, ...".
10. Besides, this submission has
already been considered and decided by
the judgement passed by me in a bunch of
cases, while sitting in Lucknow Bench,
wherein the leading case was Writ
(Consolidation) No. 535 of 2013: decided
on 13.3.2014. By this judgement, relying
upon a Division Bench decision reported
in 1976 RD 35: Industrial Syndicate Ltd.
Versus State of U.P. it has been held that
the notifications issued under section 6(1)
of the Act are conditional legislation and,
therefore, can be challenged only on the
grounds available for challenging any
piece of legislation. No such ground has
been raised in any of these writ petitions,
and, therefore, they are liable to be
dismissed in view of the earlier decision
noted above.
1 All]. Daswant Ram Vs. Consolidation Commissioner U.P. & Ors.
57
11.

One
of
the
additional
submissions made in the Writ Petition No.
28842 of 2014 is that the notification
under section 6(1) of the CH Act is
cryptic and does not assign any reason;
therefore, such an action is not justified in
a welfare State and also because the UP
Consolidation of Holdings Act is a
welfare legislation, enacted to consolidate
fragmented holdings of tenure-holders so
as to enhance agricultural productivity
and to make the agricultural operations
more convenient and simpler. In my
considered opinion, this ground, though
prima facie attractive, cannot be accepted
in view of the ratio in the case of
Industrial Syndicate Ltd. Vs. State of
U.P., reported in 1976 RD 35 wherein it
has been held that no reasons are required
to be assigned while issuing a notification
under section 6(1) of the Act.
12. The second ground taken is that
the notification has been issued by the
Director of Consolidation, whose powers
are defined under section 3(4) of the Act.
The power to issue a notification under
section 6(1) is with the State Government.
There is no provision under the Act
whereby
the
State
Government
is
authorized to delegate its powers to the
Director of Consolidation and, therefore,
the impugned notification is without
jurisdiction.
13. A perusal of the impugned
notification shows that the powers under
section 6(1) of the Act have been
delegated by means of a notification
issued in the year 1956. This notification,
delegating the power to the Director of
Consolidation,
has
been
specifically
mentioned in the impugned notification,
but has not been challenged in the writ
petition and, therefore, there is no
justification to consider this argument
raised on behalf of the petitioner.
14. In the second category of cases,
recommendations
for
cancelling
the
notifications under section 4 have been
made by the consolidation authorities and
such recommendations are sought to be
enforced by issuance of a writ of
mandamus. The Division Bench decision
in the case of Industrial Syndicate Ltd.
(supra), has held that notifications under
section, especially under sections 4 and
6(1) of the U.P. Consolidation of
Holdings Act are conditional legislation,
and any direction by a writ court in this
regard would amount to directing the
legislature to legislate in a particular
manner, which is not permissible. For this
reason alone, no mandamus can be issued
by this Court. Therefore, the writ petitions
wherein mandamus has been prayed for
are liable to be dismissed.
15. In the Writ Petition No. 61754 of
2014, the grievance of the petitioner
therein
is
that
the
consolidation
authorities had recommended that the
consolidation operations be not cancelled,
yet the notification under section 6(1) of
the Act was issued. Since the notification
has
been
issued
contrary
to
the
recommendation
of
the
local
consolidation authorities, the same is
liable to be quashed.
16. As already noticed above, the
notification under section 6(1) of the Act
is a piece of conditional legislation. It is
within the competence of the legislature
to legislate in the manner it thinks
appropriate.
In
my
opinion,
such
conditional legislation can be challenged
either on the ground of lack of legislative
competence or on the ground that it is
58
 INDIAN LAW REPORTS ALLAHABAD SERIES
ultra vires. No such plea has been raised
in the writ petition and, therefore, it is
liable to be dismissed. For the same
reason, this Court is not competent to
issue a mandamus directing the State
Government to cancel the notifications
issued under section 6(1) of the Act, nor
directions can be issued to the State
Government to issue a notification under
section 6(1) and cancel the consolidation
operations. Therefore, the relief for
mandamus is misconceived and no such
mandamus can be issued by this Court.
17. In the last group of cases, the
recommendations
made
by
the
consolidation
authorities
have
been
challenged. A recommendation, in any
case, is a mere recommendation and it is
for the authorities concerned to either act
in accordance with the recommendations
or to take a decision contrary to what has
been recommended. The recommendation
is, at best, an opinion of the authority
concerned keeping in mind the facts and
circumstances prevalent in the unit. It is
made only to aid the State Government in
taking an appropriate decision in the
matter and, therefore, in my considered
opinion, the same is not open to judicial
review. Moreover, in case such a
recommendation is interfered with, it
would again amount to issuing directions
to the State Government to issue a
conditional legislation in a particular
manner, which, as already observed, the
Court is not competent to do.
18. It would be appropriate to notice
the facts and arguments in WP No. 67061
of 2014. In the instant case, it has been
argued that the consolidation operations
were cancelled on the ground that a part
of the land of the unit was covered by a
notification under section 3 of the
Municipalities Act. It is for this reason
that the consolidation operations were
cancelled as the same land cannot be
subject-matter of notifications both under
section 3 of the Municipalities Act and
section 4 of the UP CH Act.
19. Learned counsel for the petitioners
does
not
dispute
this
position.
His
submission is that the notification under
section 3 of the Municipalities Act pertained
to only a part of the land of the unit, and did
not pertain to the entire unit. He has,
therefore, submitted that the consolidation
operations should have been cancelled only
with regard to area covered under section 3
of the Municipalities Act and that there is no
justification for cancelling the consolidation
operations as regards the remaining area.
Relying upon Rule 17, learned counsel for
the petitioner has submitted that the State
Government is empowered to cancel a
notification under section 4 of the CH Act
either as a whole or as regards a part or parts
of the area under such notification.
20. Sri Sanjai Goswami, learned
Addl. Chief Standing Counsel, has, on the
contrary, submitted that the notification
under section 4 has been cancelled also on
account of the fact that a highway divides
the village in two parts. As a result
thereof, and on account of this highway
being an important one, which is a byepass known as the Sultanpur-BanauraMau-Gorakhpur Bye-pass, the value of
the land in the unit has increased
considerably and in case the consolidation
operations are conducted, it would result
in compulsory five percent reduction in
the area of each tenureholder, as is
mandatory under the Act. This, in turn,
will result in a huge financial loss to the
tenureholders. He, therefore, submits that
the notifications have been issued for
1 All]. Manish Kumar Dixit & Ors. Vs. The State of U.P. & Ors.
59
cogent reasons and, therefore, should not
be interfered with. He has, lastly,
submitted that in in any case the State
Government is not required to assign any
reason for issuing the notifications in
view of the law laid down by the Division
Bench in the case of the Industrial
Syndicate Ltd. (supra).
21. In rebuttal, learned counsel for the
petitioner has submitted that the petitioner is
aggrieved because he apprehends that the
proceedings that have attained finality during
the consolidation operations would also be
set at naught by the cancellation of the
consolidation operations by the notification
under Section 6(1) of the Act.
22.
It, therefore, emerges from the
submissions made that the petitioner is
aggrieved by the impugned notification only
because certain benefits, which have accrued to
him during the currency of the consolidation
operations and which are alleged to have
attained finality, will stand reversed. This
apprehension of the petitioner is entirely
misconceived because all disputes that have
attained finality prior to the cancellation of the
consolidation operations stand protected by
sub-section (2) of section 6. This writ petition
has, therefore, been filed on a misconception of
law and on mere apprehension. It, therefore,
deserves to be dismissed.
23. In so far as the Writ Petition No.
27137 of 2010 is concerned, a writ of
certiorari has been sought for quashing
the order dated 15.1.2010 passed by the
Consolidation Commissioner, as also for
quashing the consolidation proceedings.
24. A perusal of the order impugned in
this petition indicates that a representation
made by the petitioner has been rejected on
the ground that the petitioner is seeking
cancellation of the consolidation operations
which have been closed long back by
issuance of notification under section 52(1)
of the Act.
25. Learned counsel for the petitioner
has not been able to point out anything from
the record which would show that this
reasoning is in any way vitiated, or is
factually incorrect. This Court is, therefore,
constrained to hold that this writ petition is
entirely misconceived and merits dismissal.
26. Accordingly, and for the reasons
given above, as also the reasons given in
the judgement passed in Writ Petition
(Consolidation) No. 535 of 2013, decided
by me at Lucknow Bench, on 31.3.2014,
all the writ petition in this bunch are
dismissed.
27. Two writ petitions, namely, Writ -
B No. 15297 of 2014 and Writ-B No. 48014
of 2014, have wrongly been shown as
connected with this bunch of cases and,
therefore, they are being de-tagged from this
bunch. They will be decided along with the
bunch of cases to which they relate.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2014
BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.
Writ -A No. 34228 of 2014
Alongwith W.P. No. 34310 of 2014, W.P.
No. 34325 of 2014, W.P. No. 34837 of 2014
and other connected cases.
Manish Kumar Dixit & Ors. ...PetitionerS
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri Vijay Gautam