# Ashok Kumar Chaubey and others v. D.D. Consolidation, Varanasi and others

- **Citation:** (2011) 1 ILRA 356
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-28
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-chaubey-and-others-v-d-d-consolidation-varanasi-and-others-41895
- **Pages:** 4

## Headnote

C.S.C.
Sri Lalji Pandey

U.P.
Consolidation
of
Holding
Act
Section-12-mutation
proceedings
on
basis of unregistered will-executed in
Tehsil
Campus-consolidation
officer
expressed serious doubt on genuineness
of will-profounder unable to explain the
surroundings suspicious circumstancesS.O.C. Reversed the finding without
disclosing
any
reason-D.D.C.
Rightly
restored the order of consolidation by
adopting procedure under Section 171 of
U.P.ZALR Act-it can not be interfered
under writ jurisdiction

Held: Para 8

The Settlement Officer Consolidation
simply set aside the order on the ground
that the Consolidation Officer could not
have discarded the Will merely because
the case was not set up originally on the
said basis. In the opinion of the Court a
serious
doubt
was
cast
by
the
Settlement Officer as to why the Will
was not registered . Even the execution
of the Will was within the Sub Divisional
Headquarters. The Settlement Officer
Consolidation
has
been
unable
to
upturn the findings successfully and
therefore to say that since the daughter
had been living with her father a power
of attorney was executed in favour of
the son in law, is not sufficient to prove
the execution of the Will. The Deputy
Director of Consolidation was justified
in
restoring
the
order
of
the
Consolidation Officer. Accordingly in
view of these conclusions it is not
necessary to assess the ratio of the
decision in the case of Sant Bux Singh
(supra).
Case law discussed:
2010(111)
RD

## Text

356 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
be concluded that the State has overstepped its limit of power.

68. Before concluding, we would
like to point out that this Court while
admitting the writ petition No. 4343 (MB)
of 2009 along with other connected
matters, passed an ad interim order dated
22.5.2009 providing therein that the
petitioners' sugar mills shall maintain an
account of molasses transferred to their
own distillery and in case their petitions
fail, they will deposit the amount within
30 days alongwith interest. As the
amending provisions have been held to be
invalid and the writ petitions are being
allowed, there is no occasion for deposit
of any administrative tax. However, it is
provided that in case any of the
petitioners had deposited the amount
under the aforesaid head with the
respondents, same shall be remitted to
them forthwith.

69. Accordingly, all the writ
petitions are allowed and the aforesaid
provisions
are
declared
invalid.
Consequently,
any
proceedings
undertaken under the amended provisions
by the authorities against the petitioners
are declared illegal and are set-aside.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.03.2011

BEFORE
THE HON'BLE A.P. SAHI,J.

Civil Misc. Writ Petition No. - 17679 of 2011

Ashok Kumar Chaubey and others

 ...Petitioners
Versus
Dy. Director Of Consolidation, Varanasi
Camp and others
 ...Respondents

Counsel for the Petitioner:
Sri Triveni Shankar
Sri Ajay Shankar

Counsel for the Respondents:
C.S.C.
Sri Lalji Pandey

U.P.
Consolidation
of
Holding
Act
Section-12-mutation
proceedings
on
basis of unregistered will-executed in
Tehsil
Campus-consolidation
officer
expressed serious doubt on genuineness
of will-profounder unable to explain the
surroundings suspicious circumstancesS.O.C. Reversed the finding without
disclosing
any
reason-D.D.C.
Rightly
restored the order of consolidation by
adopting procedure under Section 171 of
U.P.ZALR Act-it can not be interfered
under writ jurisdiction

Held: Para 8

The Settlement Officer Consolidation
simply set aside the order on the ground
that the Consolidation Officer could not
have discarded the Will merely because
the case was not set up originally on the
said basis. In the opinion of the Court a
serious
doubt
was
cast
by
the
Settlement Officer as to why the Will
was not registered . Even the execution
of the Will was within the Sub Divisional
Headquarters. The Settlement Officer
Consolidation
has
been
unable
to
upturn the findings successfully and
therefore to say that since the daughter
had been living with her father a power
of attorney was executed in favour of
the son in law, is not sufficient to prove
the execution of the Will. The Deputy
Director of Consolidation was justified
in
restoring
the
order
of
the
Consolidation Officer. Accordingly in
view of these conclusions it is not
necessary to assess the ratio of the
decision in the case of Sant Bux Singh
(supra).
Case law discussed:
2010(111)
RD
581.
1 All] Ashok Kumar Chaubey and others V. D.D. Consolidation, Varanasi and others
357
(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri Triveni Shanker
learned counsel for the petitioner, Sri
Lalji Pandey who has filed caveat on
behalf of the contesting respondent and
the learned standing counsel for the
respondent nos. 1 and 2.

2. The dispute relates to the
succession over the land in dispute. The
objections
were
filed
before
the
Consolidation Officer and Savitri Devi
claiming herself to be the daughter
alleged that she had a Will in her favour.
The Will was set up before the
Settlement
Officer
which
was
disbelieved on several grounds including
the ground that her original objection for
mutation of her name no such will had
been referred to therein. The Will is an
unregistered Will. It is alleged to have
been executed in the premises of the
Tahsil/Sub Divisional Headquarters of
the District. The executor was allegedly
80 years of age.

3. A civil suit had been filed against
a third person by Yagnath and after his
death a substitution application was
moved by Savitri Devi where also she
did not disclose the execution of the
Will. The Consolidation Officer found
that the Will was not proved but in view
of the provision of Section 171 of the
U.P.Z.A.L.R. Act accordingly directed
the recording of the name of Uma
Shanker and his brother.

4. An appeal was filed which was
allowed
and
the
order
of
the
Consolidation Officer was set aside
recording the name of Savitri Devi and
her heirs who are the petitioners herein.
Aggrieved
the
respondents
filed
a
revision and the order of the Settlement
Officer Consolidation was set aside and
the order of the Consolidation Officer
was restored.

5. Sri Triveni Shanker learned
counsel for the petitioner submits that the
Will could have been set up at the
appellate stage as well and he relies on
the decision in the case of Sant Bux
Singh V. Dy. Director of Consolidation
reported in 2010(111)RD 581. He further
submits that most of the land in dispute
was Abadi as referred in CH Form No.41
and therefore the Consolidation Courts
had no jurisdiction to decide any such
dispute. He further contends that the Will
had been proved and in such a situation
the revisional order as well as the order
of Consolidation Officer deserve to be
quashed.

6. Sri Triveni Shanker learned
counsel for the petitioner has invited the
attention of the Court to the findings
recorded by the Consolidation Officer
and its reversal by the Settlement Officer
Consolidation. He further submits that
the Deputy Director of Consolidation
without reverting the findings of the
appellate authority in correct perspective
has passed an order which is an
unreasoned order and therefore the order
of the Settlement Officer Consolidation
deserves to be maintained.

7. Having heard Sri Trivedni
Shanker
learned
counsel
for
the
petitioner and Sri Lalji Pandey for the
respondents, it is apparent that an
attempt was made to establish the
validity of the Will by contending that
the signatures on the Will ought to have
been compared with the registered power
of attorney as it contained signatures as
358 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Yagnath only. Sri Triveni Shanker
submits that the word surname 'Tripathi'
is missing the same could not have been
a ground to discard the will. The
aforesaid
argument
of
Sri
Triveni
Shanker has to be construed in the light
of the surrounding circumstances that
were
taken
into
account
by
the
Consolidation Officer that Savitri Devi
neither in her original objection nor in
the proceedings before the Civil Court
had ever set up the Will and therefore the
same appears to be an afterthought. The
Consolidation Officer also found that the
Will was allegedly executed inside the
Sub Divisional Headquarters campus
through the help of lawyers yet it remain
unregistered. The attesting witness and
his statement was unable to corroborate
the exact execution of the Will. The
Consolidation Officer therefore found
that
the
Will
appears
to
be
an
afterthought
and
surrounding
circumstances do not establish the
execution of the Will. The genuineness
was doubted and in the opinion of the
Court the Consolidation officer has given
cogent reasons to support the same.

8.

The
Settlement
Officer
Consolidation simply set aside the order
on the ground that the Consolidation
Officer could not have discarded the Will
merely because the case was not set up
originally on the said basis. In the
opinion of the Court a serious doubt was
cast by the Settlement Officer as to why
the Will was not registered . Even the
execution of the Will was within the Sub
Divisional Headquarters. The Settlement
Officer Consolidation has been unable to
upturn the findings successfully and
therefore to say that since the daughter
had been living with her father a power
of attorney was executed in favour of the
son in law, is not sufficient to prove the
execution of the Will. The Deputy
Director of Consolidation was justified
in
restoring
the
order
of
the
Consolidation Officer. Accordingly in
view of these conclusions it is not
necessary to assess the ratio of the
decision in the case of Sant Bux Singh
(supra).

9. One of the issues raised by Sri
Triveni Shanker is that Consolidation
Courts had no authority to decide the
issue relating to Abadi land.

10. Needless to mention that the
Abadi which has been reflected in
C.H.Form No.41 is part of the holding
itself and which is an Abadi within the
tenure of the cultivators. It is not an
Abadi land as understood in terms of the
provisions of U.P.Z.A.L.R.Act and is not
even otherwise an Abadi land as
understood after a declaration under
Section 143 of the U.P.Z.A.L.R.Act.
Accordingly the contention raised by Sri
Triveni Shanker has to be rejected as the
objections related to the holdings that
were within the jurisdiction of the
consolidation
operations
after
the
notification under Section 4 of the Act.

11. In view of the aforesaid
findings this Court does not find any any
reason to interfere with the impugned
order.

The Writ petition lacks merits and is
accordingly dismissed.
---------
1 All] Chaman Lal @Chunni Lal and others V. State of U.P. and others
359
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2011

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 21350 of 2010

Chaman Lal @ Chunni Lal and others

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri P.R. Maurya

Counsel for the Respondents:
C.S.C.

U.P. Consolidation of Holding Act 1953,
Section-6-Denotification of consolidation
scheme-village inquestion brought under
consolidation scheme-notification under
Section 4(2) issued on 20-8-2009-when
a complete procedure provided in the Act
itself-Court should not interfere with
task of Government stay granted earlier
ignoring
this
aspects-liable
to
discharged.

Held: Para 10

Unfortunately, in the opinion of the
Court, this petition amounts to a
premature exercise and is otherwise an
abuse of the process of court as an
interim order has been passed staying
the
proceedings
of
consolidation
operations until further orders of this
Court
without
allowing
the
State
Government to apply its mind. The stay
of
a
notification
under
Section
4
amounts to staying the operation of
law
which
in
my
opinion
is
not
permissible.
The
State
Government
should be allowed to exercise his
discretion before any interference is
caused in the exercise of jurisdiction
under Article 226 of the Constitution of
India.
(Delivered by Hon'ble A.P. Sahi, J.)

1. This petition prays for a
mandamus directing the respondentsconsolidation authorities not to proceed
with the consolidation operations in the
village in question.

2. The aforesaid prayer is founded
on the allegation that the consolidation
operations would be against the interest of
the tenure holders as 80% area of the
village is covered by stones and hills
which would make the consolidation
operations practically impossible. The
area is also full of drainage and riverbeds
and a single crop is available to the
farmers, therefore, a desire was expressed
for not proceeding with the consolidation
operations.

3. The village was brought under the
consolidation
operations
under
the
provisions of Section 4(2) of the U.P.
Consolidation of Holdings Act, 1953. The
notification was issued on 20.08.2009.

4. Once such a notification was
issued the consolidation operations have
to be set into motion. The power to
denotify or cancel a notification vests in
the State Government under Section 6 of
the
U.P.
Consolidation
and
Land
Holdings Act. The same is quoted
hereinbelow:

6.
Cancellation
of
notification
under Section 4. (1) It shall be lawful for
the State Government at any time to
cancel the [notification] made under
Section 4 in respect of the whole or any
part of the area specified therein.

[(2) Where a [notification] has been
cancelled in respect of any unit under