# Arwind Kumar Tiwari v. State Of U.P. & Ors

- **Citation:** (2016) 4 ILRA 952
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-29
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arwind-kumar-tiwari-v-state-of-u-p-ors-43709
- **Pages:** 6

## Headnote

Section 4A, U.P. Consolidation of Holdings Act, 1953 - "Special circumstances" - Fresh
notification after final notification under Section 52 - Time bar of 20 years - Power exercisable
after 10 years in public interest - Scope of judicial review - Legislative / conditional legislation -
Public Interest Litigation.

Consolidation of Holdings - Public Interest Litigation challenged the notification dated 21.02.2014 issued
under Section 4 read with Section 4A of the U.P. Consolidation of Holdings Act, 1953, contending that
consolidation operations had already concluded by issuance of a final notification under Section 52 dated
05.06.1999 and that no "special circumstances" existed to justify a fresh notification within twenty years.

Section 4A, U.P. Consolidation of Holdings Act, 1953 - Held that the issue relating to the validity of
Adhikari Pariksha certificate issued by Gurukul Vishwavidyalaya up to the year 2008 stands conclusively
settled by a Full Bench decision of this Court. The Full Bench has categorically held that Adhikari Pariksha
certificate issued up to the year 2008, duly recognized by the U.P. Board of High School and Intermediate
Education as equivalent to High School, is a valid qualification irrespective of the fact that Gurukul
Vishwavidyalaya was later declared to be a fake University.

Scope of judicial review- Held further that issuance of notifications under Sections 4, 6 or 4A is an exercise
of legislative power and partakes the character of conditional legislation. Such notification can be judicially
reviewed only on limited grounds, namely, violation of constitutional provisions, ultra vires the parent statute,
or arbitrariness.
4 All. Arwind Kumar Tiwari Vs State Of U.P. & Ors.

953
Special circumstances - Held that the aforesaid reasons were relevant, germane and clearly demonstrated
public interest, and therefore constituted "special circumstances" within the meaning of Section 4A. The
notification was neither arbitrary nor ultra vires the Act.

Public Interest Litigation dismissed.

Case listed

Agricultural & Industrial Syndicate Ltd. Vs. State of U.P. [1976 RD 35]

## Text

952 INDIAN LAW REPORTS ALLAHABAD SERIES
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.02.2016

BEFORE

THE HON'BLE DR. DHANANJAYA YESHWANT CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J.

Public Interest Litigation (PIL) No.- 660 Of 2016

Arwind Kumar Tiwari
 ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Kumar Upadhyay

Counsel for the Respondents:
C.S.C.

Land Laws - Consolidation of Holdings - Re-commencement of consolidation operations -
Section 4A, U.P. Consolidation of Holdings Act, 1953 - "Special circumstances" - Fresh
notification after final notification under Section 52 - Time bar of 20 years - Power exercisable
after 10 years in public interest - Scope of judicial review - Legislative / conditional legislation -
Public Interest Litigation.

Consolidation of Holdings - Public Interest Litigation challenged the notification dated 21.02.2014 issued
under Section 4 read with Section 4A of the U.P. Consolidation of Holdings Act, 1953, contending that
consolidation operations had already concluded by issuance of a final notification under Section 52 dated
05.06.1999 and that no "special circumstances" existed to justify a fresh notification within twenty years.

Section 4A, U.P. Consolidation of Holdings Act, 1953 - Held that the issue relating to the validity of
Adhikari Pariksha certificate issued by Gurukul Vishwavidyalaya up to the year 2008 stands conclusively
settled by a Full Bench decision of this Court. The Full Bench has categorically held that Adhikari Pariksha
certificate issued up to the year 2008, duly recognized by the U.P. Board of High School and Intermediate
Education as equivalent to High School, is a valid qualification irrespective of the fact that Gurukul
Vishwavidyalaya was later declared to be a fake University.

Scope of judicial review- Held further that issuance of notifications under Sections 4, 6 or 4A is an exercise
of legislative power and partakes the character of conditional legislation. Such notification can be judicially
reviewed only on limited grounds, namely, violation of constitutional provisions, ultra vires the parent statute,
or arbitrariness.
4 All. Arwind Kumar Tiwari Vs State Of U.P. & Ors.

953
Special circumstances - Held that the aforesaid reasons were relevant, germane and clearly demonstrated
public interest, and therefore constituted "special circumstances" within the meaning of Section 4A. The
notification was neither arbitrary nor ultra vires the Act.

Public Interest Litigation dismissed.

Case listed

Agricultural & Industrial Syndicate Ltd. Vs. State of U.P. [1976 RD 35]

(Delivered by Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, C.J.
&
 Hon'ble Yashwant Varma, J.)

1. The instant public interest litigation sought quashing of a notification dated 21 February
2014 issued under Section 4 of the Uttar Pradesh Consolidation of Holdings Act, 19531 . The
petitioner asserted that consolidation operations in the village had been undertaken earlier and had
concluded with the issuance of a notification on 5 June 1999 under Section 52 of the 1953 Act.
Referring to the proviso appended to sub section (1) of Section 4A, it was contended that the
impugned notification would fall foul of the said provision. It was submitted that no "special
circumstances" existed justifying the invocation of powers conferred by section 4A of the 1953 Act.
To appreciate the submission it may be noted that in terms of the proviso to sub section (1) of
section 4A, a fresh declaration for commencement of consolidation operations cannot be issued
within twenty years from the date of the earlier notification issued under Section 52. The exception
to the above is a case where in "special circumstances" the State Government may in public interest
exercise the power 10 years after the issuance of the final notification under section 52. It was
contended that only fifteen years had elapsed from the publication of the notification under Section
52 and no special circumstances existed. Bearing in mind the contentions so advanced, this Court
on 29 January 2016 passed the following order:

"The learned Standing Counsel in pursuance of the previous order dated 8 January 2016
has placed the instructions received by him from the Consolidation Officer.

Having duly perused the instructions, more particularly, the order dated 5 October 2015
passed by the Consolidation Commissioner, we are of the view that it would be appropriate if a
direction is issued for the filing of a short counter affidavit explaining the special circumstances on
the basis of which the impugned notification was issued under the U.P. Consolidation of Holdings
Act. The counter affidavit shall be filed within a period of three weeks from today.

 List under the same caption on 23 February 2016."

2. In pursuance of the aforesaid order, the learned Standing Counsel has filed a Short Counter
Affidavit bringing on record material in justification of the notification impugned herein.
954 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Section 4A being relevant for consideration of the contention advanced before us is
extracted hereinbelow:

"4-A. (1) Where the State Government is of the opinion that in the case of a district or
part thereof in respect of which a notification has already been issued under Section 52, it is
expedient in public interest so to do, it may make a declaration by notification in the Gazette that
such district or part thereof may again be brought under consolidation operation:

[Provided that no such declaration shall be issued within twenty years from the date of
the notification referred to in the said section, but in special circumstances the State Government
may, in public interest, issue such declaration after ten years from the said date.]

 (2) The provisions of this Act shall mutatis mutandis apply to every notification issued
under sub-section (1) as they apply to a notification under Section 4."

4. A reading of the provision made in Section 4A establishes the conferment of a power upon
the State Government to bring an area or unit in respect of which a final notification under section
52 has been issued to again be brought under consolidation. The rider placed on the exercise of this
power stands enshrined in the proviso which mandates that no fresh declaration shall be issued
within twenty years from the date of the notification issued under Section 52 except on account of
"special circumstances" in which case the State is empowered in public interest to invoke its
powers upon expiry of 10 years from the date of issuance of the final notification. The prohibition
against recommencement of consolidation operations operates only during the window of 10 years
from the date of issuance of the final notification. Thereafter and upon expiry of 10 years the State
may in special circumstances exercise its powers. In the absence of "special circumstances" the
power is available to be invoked after 20 years. Admittedly, in the facts of the present case, the
notification under Section 52 was issued on 5 June 1999. The notification impugned in this petition
dated 21 February 2014 is evidently therefore after ten years from the date of the notification issued
under Section 52 but before 20 years from the date of the final notification.

5. Two learned Judges of this Court in Agricultural & Industrial Syndicate Ltd. Vs. State of
U.P. [1976 RD 35] have already held that the issuance of a notification either under section 4 or 6
is an exercise of legislative power and described the said provision as an instance of conditional
legislation. The notification consequently like all other pieces of legislation would be liable to be
tested primarily on the ground of (a) whether it violates the Constitution or (b) is ultra vires the
parent statute or arbitrary. There is no constitutional challenge to section 4 or 4A. The issue which
would therefore survive for consideration is whether the notification is ultra vires the 1953 Act or
arbitrary. The sine qua non for invocation of the powers conferred by section 4A in a case covered
by its proviso is the existence of "special circumstances" warranting a fresh consolidation exercise
being undertaken after the expiry of 10 years and not before the expiry of 20 years from the date of
the final notification. As noted above, the impugned notification has come to be issued 15 years
after the issuance of the final consolidation notification. The issue for consideration stands
narrowed down therefore to whether there were in existence "special circumstances" which
4 All. Arwind Kumar Tiwari Vs State Of U.P. & Ors.

955
justified the invocation of section 4A. From the Short Counter Affidavit filed in these proceedings,
we find that on 22 September 2013 a resolution was passed by the Land Management Committee
recording that allotment of chaks under the previous consolidation scheme had taken place almost
thirty-five years ago. The resolution further noted the unavailability of land for establishment of
public utilities and the insufficiency of chak margs and chak nalis thus causing inconvenience to
the villagers and tenure 5 holders. These issues stood reiterated in a report dated 30 December 2013
of the Assistant Consolidation Officer as well as the reports dated 22 November 2013 and 9
December 2013 of the Additional District Magistrate, Jaunpur and the District Magistrate, Jaunpur
respectively addressed to the Commissioner of Consolidation, U.P. The report of the Additional
District Magistrate referred to above, was in the following terms:-

कायाालय उपजजलाचिकारी, मछलीशहर, जनपद जौनपुर

पत्ांक 2162/आर.के. (म.शहर)/ददनांक 18-11-13

सेवा में,

उप संर्ालक र्कबन्िी,

जिपि जौिपुि।

महोिय,

कृपया अपिे पत्र दििांक 31.10.2013 का सन्िभि ग्रहण कििे का कष्ट किें, जजसके द्वािा ग्राम ििहटी पिगिा
मुाँगिाज, िहसील-मिलीशहि, जजला-जौिपुि को र्कबन्िी प्रकक्रया में लािे के सम्बन्ध में आख्या र्ाही गयी है।इस सम्बन्ध
में िहसीलिाि, मिलीशहि से आख्या प्राप्ि की गयी। िहसीलिाि की आख्या दििांक 18.11.2013 के अिुसाि ग्राम ििहटी
पिगिा मुाँगिाज, िहसील मिलीशहि, जजला जौिपुि की धािा 52 का प्रकाशि दििांक 05.06.1999 को हुआ है, ककन्िु र्कों
का कब्जा परिविि लगभग 35 वषि पूवि हुआ है।वििमाि में गााँव में िाली एवं र्कमगि पयािप्ि मात्रा में उपलब्ध िहीं है
िथा साविजनिक उपयोग की भूमम भी पयािप्ि मात्रा में िहीं है। अिः ग्रामवामसयों की सुववधा को िेखिे हुए गााँव में पुिः
र्कबन्िी किाया जािा उगर्ि होगा।

अिः िििुसाि पुिः र्कबन्िी ककया जािा उगर्ि होगा।

आख्या सेवामें प्रेवषि है।

उपजजलाचिकारी

मछलीशहर,

 जनपद जौनपुर

6. It was on the basis of the aforesaid material that the District Magistrate 6 and the Collector
proceeded to recommend a recommencement of consolidation operations in the area. The District
Magistrate and the Collector in his communication dated 1 December 2013 addressed to the
Consolidation Commissioner observed as follows: - "
956 INDIAN LAW REPORTS ALLAHABAD SERIES

प्रेषक,

जजलागधकािी / जजला उप संर्ालक र्कबन्िी,

जौिपुि।

सेवा में,

र्कबन्िी आयुक्ि,

उत्ति प्रिेश,

लखिऊ।

पत्र सं० 5836/पी.के.

दििांक 09 दिसम्बि 2013

ववषय :- ग्राम ििहटी पिगिा मुाँगिाज, िहसील मिलीशहि, जजला जौिपुि को द्वविीय र्क्र की र्कबन्िी
योजिा में सजम्ममलि कििे हेिु उ०प्र० र्कबन्िी अगधनियम की धािा 4(क)(1) के अन्िगि प्रकाशि के सम्बन्ध में।

महोिय,

उपिोक्ि ववषयक श्री सुिेश र्न्ि पाण्डेय पुत्र पािसिाथ पाण्डेय एवं गगिजा शंकि यािव पुत्र स्व०
महािेव आदि निवासी ग्राम ििहटी, पिगिा मुाँगिाज, िहसील मिलीशहि, जजला जौिपुि, जजिके समथि में श्रीमिी अंजू
यािव, सिस्य जजला पंर्ायि एवं श्रीमिी हेमलिा मसंह, प्रमुख क्षेत्र पंर्ायि िथा श्री वविोि कुमाि मसंह, पूवि ववधायक िे
भी पत्र प्रस्िुि ककया है, जजसमें ग्राम ििहटी को र्कबन्िी योजिा में सजम्ममलि ककये जािे का उल्लेख ककया गया
है।उक्ि पत्र पि बन्िोबस्ि अगधकािी र्कबन्िी, उप संर्ालक र्कबन्िी जौिपुि, उपजजलागधकािी मिलीशहि एवं अपि
जजलागधकािी (ववत्त एवं िाजस्व) जौिपुि से जााँर् आख्या प्राप्ि की गयी है। जााँर् आख्या में उजल्लर्खि है कक ग्राम का
धािा 52 का प्रकाशि दििांक 05.06.1999 (प्रथम र्क्र) को हुआ है, ककन्िु ववशेष परिजस्थनियों में 10 वषि पचर्ाि भी
धािा 4(क)(1) का प्रकाशि ककया जा सकिा है। ग्राम में ववशेष परिजस्थनियााँ हैं, जजसमें र्कबन्िी प्रकक्रया का पुिः लागू
ककया जािा उगर्ि है। अिः ग्राम ििहटी पिगिा मुाँगिाज, िहसील मिलीशहि, जजला जौिपुि को र्कबन्िी योजिा में
सजम्ममलि ककये जािे हेिु आख्या आवचयक कायिवाही हेिु सेवा में प्रेवषि है।

(जााँर् आख्या संलग्ि)

उप संर्ालक र्कबन्िी / जजलागधकािी / जजला उप संर्ालक र्कबन्िी

जौिपुि जौिपुि"

7. From the material referred to above, it is apparent that the following aspects were taken into
consideration by the authorities while recommending the case for fresh consolidation operations
being undertaken:

(a) Demarcation and allotment of chaks having taken place almost thirty five years ago;
4 All. Manish Gautam Vs Smt. Shikha Gautam

957

(b) Lack of availability of land for public utility purposes and

(c) Insufficient number of chak margs and chak nalis.

8. We find that the material on the basis of which the State proceeded to exercise its powers
under section 4A was clearly germane to the exercise of power and clearly evidences the element of
public interest having been borne in mind. The reasons assigned for invocation of the said
provision cannot be said to be irrelevant or arbitrary. The factors taken into consideration while
invoking the said provision were clearly in accord with the underlying legislative policy and
objects of the 1953 Act. We are, therefore, of the opinion that the aforesaid reasons did constitute
"special circumstances" which justified the invocation of the 8 provisions of Section 4 A and
recommencement of consolidation operations.

9. For the aforesaid reasons, we find no merit in the present petition which shall consequently
stand dismissed.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 908 Of 2014

Manish Gautam ...Appellant
Versus
Smt. Shikha Gautam ...Respondent

Counsel for Appellant:
Vinod Kumar Agrawal, Anshul Kumar Singhal

Counsel for Respondent:
Diwakar Tiwari

Proceedings

The matter was heard upon the parties' counsel submissions, and the record was perused. It was noted that
sufficient materials were available to decide the matter at the appellate stage without further evidence. The
original matrimonial suit for divorce under Section 13 of the Hindu Marriage Act was filed by the petitionerappellant. Both the trial and first appellate courts dismissed the petition based on findings that the appellant
failed to prove cruelty and desertion by the respondent. This second appeal was filed challenging the
concurrent findings of the lower courts.

Procedure