# Chandrashekhar v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 1025
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-12
- **Case number:** Writ-B No. 978 of 2022
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandrashekhar-v-state-of-u-p-ors-47661
- **Pages:** 10

## Headnote

Civil Law - Uttar Pradesh Consolidation of
Holdings Act, 1953 - Section 4-A, 6 & 44 -
Issue - whether High Court can examine
the legality and validity of issuance of
notification under Section 4-A of the
U.P.C.H. Act or not ? - Held - St.
Government has power to promulgate the
notifications, as required in it's opinion
and
such
notifications
are
part
of
legislative functions which are not open in
ordinary course for judicial review unless
it suffers with the grounds of ultra vires or
lack of competence of legislation or
unreasonableness - it would not be proper
to interfere in the notification issued by
the
St.
Government
to
carry
out
consolidation operation or its cancellation
- when the Director of the Consolidation
issues a notification u/s 4 or 6 of the Act,
he
performs
neither
a
quasi-judicial
function nor exercises any administrative
power but performs a legislative function -
The Director of Consolidation cannot be
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
required to give either a reasoned order or
to accord hearing to the tenure holders
concerned before issuing a notification
under Section 6 of the Act (13, 14, 15, 16)

Grievance of the petitioner is that the village has
illegally been brought under the consolidation
operation by issuing notification under Section
4-A of 'U.P.C.H. Act - Held - Consolidation
Commissioner has returned finding of fact
emphasizing the need to carry out the
consolidation operation in the village/unit in
question - it was directed that minimal area
should be disturbed/shifted while allotment of
chaks to the chak holders considering their
convenience - order under challenge passed by
the
Consolidation
Commissioner
on
the
representation moved by villagers is not a
judicial order - He has returned finding of fact
after
conducting
proper
enquiry
by
the
authorities concerned, who have submitted their
report, and accorded proper opportunity of
hearing to the parties concerned - petitioner
failed to substantiate his submission in assailing
the impugned notification under Section 4-A of
the U.P.C.H. Act. (Para 21, 22)

Dismissed. (E-5)

List of Cases cited:

## Text

10 All. Chandrashekhar Vs. State of U.P. & Ors.
1025
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

26. As discussed above, 'reformative
theory of punishment' is to be adopted
and for that reason, it is necessary to
impose punishment keeping in view the
'doctrine of proportionality'. It appears
from perusal of impugned judgment that
sentence awarded by learned trial court
for life term is very harsh keeping in
view
the
entirety
of
facts
and
circumstances of the case and gravity of
offence.
Hon'ble
Apex
Court,
as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

27. Keeping in view the reformative
theory of punishment and "doctrine of
proportionality", it appears to us that the
sentence of life imprisonment awarded
under Section 304 IPC by learned trial
court to the appellant is too harsh and
severe keeping in view the facts and
circumstances of this case. The appellant is
in jail for the last more than 9 years. This
fact is also admitted by learned AGA.

28. Hence, we are of the considered
view that since the appellant has already
served-out more than 9 years sentence, the
sentence of life imprisonment under
Section 304 IPC is converted into the
sentence already undergone. Fine amount is
reduced to Rs. 10,000/-. If fine is not paid
within 12 weeks from the date of release,
appellant shall undergo six months' further
incarceration.

29. The appeal is accordingly partly
allowed, as modified above.

30. The office is directed to transmit
the record to the court below.
----------
(2022) 10 ILRA 1025
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2022

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ-B No. 978 of 2022

Chandrashekhar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arun Kumar Srivastava

Counsel for the Respondents:
C.S.C.

Civil Law - Uttar Pradesh Consolidation of
Holdings Act, 1953 - Section 4-A, 6 & 44 -
Issue - whether High Court can examine
the legality and validity of issuance of
notification under Section 4-A of the
U.P.C.H. Act or not ? - Held - St.
Government has power to promulgate the
notifications, as required in it's opinion
and
such
notifications
are
part
of
legislative functions which are not open in
ordinary course for judicial review unless
it suffers with the grounds of ultra vires or
lack of competence of legislation or
unreasonableness - it would not be proper
to interfere in the notification issued by
the
St.
Government
to
carry
out
consolidation operation or its cancellation
- when the Director of the Consolidation
issues a notification u/s 4 or 6 of the Act,
he
performs
neither
a
quasi-judicial
function nor exercises any administrative
power but performs a legislative function -
The Director of Consolidation cannot be
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
required to give either a reasoned order or
to accord hearing to the tenure holders
concerned before issuing a notification
under Section 6 of the Act (13, 14, 15, 16)

Grievance of the petitioner is that the village has
illegally been brought under the consolidation
operation by issuing notification under Section
4-A of 'U.P.C.H. Act - Held - Consolidation
Commissioner has returned finding of fact
emphasizing the need to carry out the
consolidation operation in the village/unit in
question - it was directed that minimal area
should be disturbed/shifted while allotment of
chaks to the chak holders considering their
convenience - order under challenge passed by
the
Consolidation
Commissioner
on
the
representation moved by villagers is not a
judicial order - He has returned finding of fact
after
conducting
proper
enquiry
by
the
authorities concerned, who have submitted their
report, and accorded proper opportunity of
hearing to the parties concerned - petitioner
failed to substantiate his submission in assailing
the impugned notification under Section 4-A of
the U.P.C.H. Act. (Para 21, 22)

Dismissed. (E-5)

List of Cases cited:

1. Agricultural & Industrial Syndicate Ltd. Vs St.
of U.P. 1976 RD 35

2. Deo Nath Kewat Vs Dy. Director of
Consolidation & ors. (1990 RD 177)

3. Rajaram Ojha Vs Consolidation Commissioner
Writ Petition No. 337 of 1990 dt 31.03.2014 4.
MANU/UP/2782/2014

4.
Smt.
Kalpi
Devi
Vs
Consolidation
Commissioner & anr. reported in 2016 (131)
R.D., 738

5. Dalip & 3 Others Vs Vikram Singh & ors.
reported in 2015 (128) R.D., 666

6. Jasmeet Singh Vs St. of U.P. & ors. Writ-B
No. 8706 of 2016 dt 07.04.2016

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard learned counsel for the
petitioner and the learned Standing Counsel
for the State-respondents.

2. Present writ petition has been filed
challenging the order dated 04.03.2022
(Annexure-8) passed by the Consolidation
Commissioner (respondent no. 4), rejecting
the representation dated 31.12.2021 moved
by one Awadhesh Mishra, in pursuance of
the order dated 18.11.2021 passed by this
Court in Writ-B No. 1764 of 2021;
Awadhesh Mishra vs. State of U.P. & 3
Others (Annexure-7).

3. Grievance of the petitioner is that
village Chandadih, Pargana Sikendarpur,
Tehsil Belthara Road, District Ballia has
illegally
been
brought
under
the
consolidation
operation
by
issuing
notification under Section 4-A of the U.P.
Consolidation of Holdings Act (in brevity
'U.P.C.H. Act') promulgated on 27.05.2016
and the Consolidation Commissioner has
illegally rejected the representation without
adverting to the grievance raised before
him.

4. Facts culled out from the averments
made in the writ petition are that some of
the
villagers
have
shown
their
dissatisfaction against the issuance of
notification under Section 4-A of the
U.P.C.H. Act, inter alia, on the grounds that
previously, consolidation operation had
already been finalized in the year 1971 and
there was no occasion to carry out second
round consolidation operation. Feeling
aggrieved against the said notification
under Section 4-A of the U.P.C.H. Act, one
Awadhesh Mishra had filed writ petition
before this Court challenging the said
notification being Writ-B No. 1764 of 2021
(Awdhesh Mishra vs. State of U.P. & 3
Others). While deciding the said writ
10 All. Chandrashekhar Vs. State of U.P. & Ors.
1027
petition, this Court has observed that there
was a sharp division of opinion amongst
the villagers qua carrying out second round
consolidation operation. Some of the
villagers are in favour of carrying out
consolidation operation and some are in
favour of cancellation of the notification,
consequently, this Court, vide order dated
18.11.2021, has disposed of the writ
petition
with
a
direction
to
the
Consolidation Commissioner to decide the
representation of the petitioner, which is
quoted herein below :-

"1. Heard Sri Deepak Kumar
Jaiswal, Advocate holding brief of Sri Arun
Kumar Srivastava, learned counsel for the
petitioner as well as learned Standing
Counsel for the State respondents.

2. Supplementary affidavit and
instructions are taken on record.

3. Sri Girish Chandra Maurya,
Advocate
has
filed
impleadment
application for impleadment of applicants
as respondents as they are necessary party
to the case. The impleadment application is
not objected by learned counsel for the
petitioner, same is accordingly allowed and
learned counsel for the applicants is
directed
to
incorporate
necessary
impleadment during course of the day.

4. In the present writ petition,
notification under Section 4 of the
Consolidation of Holdings Act was issued
on 30.09.2021, but it seems that the
petitioner
is
aggrieved
by
the
said
proceedings inasmuch as according to him
majority of villagers are not in favour of
such proceedings as according to him no
fruitful purpose would be served by the
same.

5.
On
the
other
hand
an
application for impleadment has been
moved claiming to be representing majority
of villagers, who, according to him are in
favour of the consolidation proceedings. He
further submits that a report has been
submitted by the Consolidation Committee
to the authorities concerned in favour of the
consolidation proceedings.

6. The question involved in this
writ petition is as to whether consolidation
proceedings should proceed or not. In the
present circumstances, as there are clearly
two versions available contradicting each
other and consequently it would be
appropriate that the issue need be suitable
considered
by
the
Consolidation
Commissioner, U.P. at Lucknow.

7. Accordingly, in the light of
above, with the consent of learned counsel
for the parties, present writ petition is
disposed of
with
direction
that
the
Consolidation
Commissioner,
U.P.
at
Lucknow shall look into the matter and
pass reasoned and speaking order on the
representation of the petitioner within two
months, from the date of production of
certified copy of this order, after giving
opportunity of hearing to all the concerned,
in accordance with law.

8. The effected persons who have
approached this Court may approach the
Consolidation Commissioner for redressal
of their grievance along with the decision
on the representation of the petitioner.

9.
With
above
observations/directions the writ petition
stands disposed of."

5. In pursuance of the order dated
18.11.2021, respondent no. 4 has passed
impugned order dated 04.03.2022 rejecting
the representation dated 31.12.2021 moved
by Awadhesh Mishra (petitioner in Writ
Petition No. 1764 of 2021) for cancellation
of the notification under Section 4A of the
U.P.C.H. Act and has further directed to the
authorities concerned for preparation of the
provisional
consolidation
scheme
as
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
enunciated under Section 19 & 19A of the
U.P.C.H. Act.

6. Said impugned order dated
04.03.2022 passed by respondent No. 4 is
being challenged in the presnt writ petition
by third person namely Chandrashekhar
(the petitioner herein) who is claiming
himself to be the resident of said village.

7. Learned counsel for the petitioner
submits that no justifiable ground was
available to the State authority to put the
village in question under consolidation
operation.
Representation
moved
by
Awadhesh Mishra has illegally been
rejected
by
the
Consolidation
Commissioner without adverting to the
grievance as raised by the villagers in the
representation. It is further submitted that
material available on the record has
illegally been ignored by the Consolidation
Commissioner
in
deciding
the
representation. Counsel for the petitioner
has drawn the attention of the Court
towards the provisions as enunciated under
Rule 17 of the U.P. Consolidation of
Holdings Rules (in brevity 'U.P.C.H.
Rules') in support of his submission that
tenure holder of the village are generally
satisfied
with
the
present
position,
therefore,
they
do
not
want
any
consolidation operation in the village and
owing to party factions in the villagers,
proper consolidation proceeding in the
village is very difficult. It is further
submitted
that
the
Consolidation
Commissioner has passed the impugned
order in a very cursory manner without
application of mind which is illegal,
unwarranted under the law and tainted with
irregularities,
therefore,
liable
to
be
quashed and the consolidation authorities
may
be
directed
not
to
carry
out
consolidation operation in the village in
pursuance of notification promulgated on
27.05.2016.

8. Per contra, learned Standing Counsel
has contended that respondent No. 4 has
rightly decided the matter after calling for the
report from the District Magistrate/District
Deputy Director of Consolidation and the
joint report of Settlement Officer of
Consolidation and the Additional District
Magistrate.
Before
passing
order
the
Consolidation Commissioner has given full
opportunity of hearing to the villagers
including the Village Pradhan and Awadhesh
Mishra who was the petitioner in previous
writ petition. It is further contended that the
notification under Section 4-A of the
U.P.C.H. Act is not assailable in the court of
law being conditional legislation and the
State is not under legal obligation to record
the reason for exercising its legislative power
in a peculiar way. It is also contended that
the legislation cannot legislate on the sweet
will of any person, therefore, the instant writ
petition, challenging the order impugned and
seeking a mandamus against the authorities
concerned
not
to
proceed
with
the
notification under Section 4-A of the
U.P.C.H. Act, is nothing but an abuse of
process of law, misconceived and devoid of
merits which is liable to be dismissed in
limine.

9. Having considered the rival
submissions advanced by learned counsel for
the parties and perusal of record, the question
for consideration in the present petition lies in
a very narrow compass as to whether this
Court can examine the legality and validity of
issuance of notification under Section 4-A of
the U.P.C.H. Act or not.

10. Before considering the scope of
judicial review qua issuance of notification
under Section 4-A of the U.P.C.H. Act, it
10 All. Chandrashekhar Vs. State of U.P. & Ors.
1029
would be befitting to go through the
relevant provisions relating to cancellation
of notification under Section 4 or 4-A of
the U.P.C.H. Act, as enunciated under
Section 6 of the U.P. Act read with Rule 17
of
the
U.P.C.H.
Rules
which
are
reproduced hereinunder :-

" Section 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 canceled in respect of any unit under
sub-section (1), such area shall, subject to the
final orders relating to the correction of land
records, if any, passed on or before the date
of such cancellation, cease to be under
consolidation operations with effect from the
date of the cancellation.]

'Rule
17'.
Section
6.--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, viz,
that --

(a) the area is under a development
scheme of such a nature as when completed
would render the consolidation operations
inequitable to a section of the peasantry;

(b) the holdings of the village are
already consolidated for one reason or the
other and the tenure-holders are generally
satisfied with the present position;

(c) the village is so torn up by party
factions as to render proper consolidation
proceedings in the village very difficult; and

(d) that a co-operative society has
been formed for carrying out cultivation in
the area after pooling all the land of the area
for this purpose."

11. Sections 4(1)(a), 4-A(1) and 6 (1)
of the U.P.C.H. Act entrusts power to the
State Government for issuing notification
to bring a district or part thereof under the
consolidation operation or its cancellation
as
mentioned
in
the
said
sections
respectively.
The
State
Government
exercises its power for issuing notification
through delegated legislation as enunciated
under Section 44 of U.P.C.H. Act and to
delegate its power under the provisions of
Section 44 of the U.P.C.H. Act, the State
Government has issued notification dated
October 19, 1956 authorizing the Director
of
Consolidation
(Consolidation
Commissioner) of the State to issue
notification under Sections 4(1)(a), 4-A (1)
& 6 (1) of U.P.C.H. Act respectively. For
ready reference, provisions as enunciated
under Section 44 of the U.P.C.H. Act is
quoted hereinunder:-

"Section 44. Delegation.-- The
State Government may, by notification in
the Official Gazette, and subject to such
restrictions and conditions as may be
specified in the notification.

(i) delegate to any officer or
authority any of the powers conferred upon
it by this Act; and

(ii) confer power of the Director
of
Consolidation,
Deputy
Director,
Consolidation, the Settlement Officer,
Consolidation,
and
the
Consolidation
Officer under this Act or the rules, made
thereunder on any officer or authority."

12. The provisions, as mentioned
above, succinct the power of State
Government
to
promulgate
the
notifications, as required in it's opinion and
such notifications are part of legislative
functions which are not open in ordinary
course for judicial review unless it suffers
with the grounds of ultra vires or lack of
competence
of
legislation
or
unreasonableness.
1030 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Scope of judicial review against
the notification under Sections 4 & 6 of the
U.P.C.H. Act has been examined by the
Division Bench of this Court in the matter
of Agricultural & Industrial Syndicate
Ltd. vs. State of U.P. reported in 1976 RD
35 and it has been expounded that "when
the Director of the Consolidation issued a
notification under Section 4 or 6 of the Act,
he performs neither a quasi judicial
function nor exercises any administrative
power but performs a legislative function.
To judge the validity of the notification, the
Court must apply the same as it would
apply to a piece of legislation. Just as, it
cannot be contended that any legislative
authority should given reason in support of
its legislation or give a hearing to those
affected before proceeding to legislate. The
Director of Consolidation also cannot be
required to give either a reasoned order or
to accord hearing to the tenure holders
concerned before issuing a notification
under Section 6 of the Act."

14. More over, the Division Bench
has further held that "If the High Court
allows the writ petition and quashes the
notification issued under Section 6, the
result would be in substance a direction to
the State Government to continue the
consolidation proceedings in the area in
question in spite of the fact that it has not
considered it fit to do so in exercise of
powers vested in it by the legislature. As
the notification under Section 4 & 6 are
issued by the State Government in exercise
of conditional legislative power, it cannot
be conceivably contended that the High
Court can issue a mandamus to the
legislature to legislate on any subject or to
apply any law to any area. The High Court
cannot pass an order making it obligatory
on the State Government to enforce the
scheme of consolidation in an area where,
in its opinion, such scheme should not be
enforced. It would amount to compel the
State Government to exercise its power of
conditional legislation."

15. In case of Deo Nath Kewat vs.
Dy. Director of Consolidation and others
(1990 RD 177), co-ordinate Bench of this
Court has held that as the issuance of
notification
under
Section
6
for
cancellation of the notification under
Section 4 (four) is an administrative-cumpolicy matter to be decided by the State
Government, either to issue notification
under Section 4 for the consolidation
operation to commence in the area or to
issue notification under Section 6. As a
matter of fact the scope of writ of
mandamus can not be extended to such an
extent as to enforce administrative or
legislative powers. In fact, either to issue
notification
under
Section
6
for
cancellation of notification is a sort of
legislative
power
of
the
state.
The
jurisdiction of High Court under Article
226 need not be stretched to such an extent
so as to compel the State Government to
legislate on a particular subject, particularly
when it does not give a corresponding right
in favour of the petitioner.

16. Relying upon the judgment of the
Division Bench in the case of Agricultural
& Industrial Syndicate Ltd. (Supra), a
Coordinate Bench of this Court in batch of
cases, leading Writ Petition No. 337 of
1990 (Rajaram Ojha vs. Consolidation
Commissioner) decided on 31.03.2014
reported in MANU/UP/2782/2014, has
held as well that it would not be proper to
interfere in the notification issued by the
State
Government
to
carry
out
consolidation operation or its cancellation.
Relevant paragraph nos. 8 & 9 of this
judgment is quoted hereinunder :-
10 All. Chandrashekhar Vs. State of U.P. & Ors.
1031

"8. Coming to the authorities
cited on behalf of the State, it is appropriate
to refer to the Division Bench decision of
this Court in the Case of the Agricultural
and Industrial Syndicate Limited v. State of
U.P. 1976 RD 35. In this case it was held
that the notifications issued either under
section 6 of the U.P. Consolidation of
Holdings Act are not in exercise of an
executive
function
but
a
legislative
function. This judgment records as follows
"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
MANU/SC/8741/2006:-

"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." Similarly, this
Court could not pass an order which would
make it obligatory on the State Government
to enforce the scheme of consolidation in
an area where in its opinion such scheme
should not be enforced. It would amount to
compel the State Government to exercise
its powers of conditional legislation."

9. The Second judgment relied
upon by the State is Dev Nath Kewat v.
Deputy Director of Consolidation 1990
RD 175. This judgment, relying upon the
ratio laid down in the case of Agricultural
and Industrial Syndicate Limited (supra),
has held as follows :--

"The scope of writ of mandamus
is by now well settled that unless there is
some denial of the statutory duty cast upon
the State and authority and the State has
refused to carry out the statutory duty, in
that event writ of mandamus cannot be
issued. In the instant case by refusing to
issue notification under section 6(1) of the
Act it cannot be said that the State
Government has refused to carry out any
statutory duty imposed upon it. In such
matters no writ of mandamus can be issued.
However, it is open to the petitioners to
approach the State Government with their
representation if so advised."

17. In the case of Smt. Kalpi Devi vs.
Consolidation Commissioner & Another
reported in 2016 (131) R.D., 738, a
Division Bench of this Court has shown its
agreement with the decision of previous
Division Bench of this Court in the case of
Agricultural & Industrial Syndicate Ltd.
(Supra). It is apposite to mention that in the
said judgment the Division Bench has also
considered the another judgment of the
Division Bench of this Court rendered in
the matter of Dalip & 3 Others vs.
Vikram Singh & 6 Others reported in
2015 (128) R.D., 666. Relevant paragraph
no. 3 of the judgment in the case of Smt.
Kalpi Devi (Supra) is quoted hereinunder :-

"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 & 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
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

18. So far as the applicability of Rule
17 of U.P.C.H. Rules is concerned, from
perusal of Rules, it is clear that rules are
made by the State Government by applying
its power under Section 54 of the U.P.C.H.
Act. Rule 17 of the U.P.C.H. Rules are
neither exhaustive nor mandatory for the
purposes of issuance of notification under
Section 6(1) of the U.P.C.H. Act to cancel
the consolidation operation carrying out in
pursuance of notification promulgated
under Section 4 or Section 4-A of the
U.P.C.H. Act. It is noteworthy to state that
all these rules as framed under Section 54
of the U.P.C.H. Act are subject to
provisions as enunciated under Section
54(3) of the U.P.C.H. Act.

19. Considering the scope and nature
of Rule 17 of the U.P.C.H. Rules, a
Coordinate Bench of this Court in Writ-B
No. 8706 of 2016 (Jasmeet Singh vs. State
of U.P. & 2 Others) decided on 07.04.2016
has held as under :-

"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 31.03.2014 in a bunch of cases, the
leading
case
wherein
was
Writ
Consolidation No. 535 pf 2-15, Raja Ram
Ojha Vs. 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 &
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 guidance 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."

20. Applying the legal proposition, as
discussed
above,
in
the
facts
and
circumstances of the instant case, I am of
the view that the present petition does not
deserve any indulgence of this Court.
Perusal of the impugned order dated
04.03.2022 reveals that before deciding the
representation,
the
Consolidation
Commissioner has called for the report
dated
08.02.2022
from
the
District
Magistrate/District Deputy Director of
Consolidation and the joint report dated
03.02.2022 submitted by the Additional
District Magistrate and the Settlement
Officer of Consolidation. In the said reports
it has been pointed out that the considerable
area of Gaon Sabha is in the possession of
illegal occupants. In the joint meeting with
villagers, 97 chak holders have opposed the
consolidation operation whereas 243 chak
holders were in favour of carrying out the
10 All. Chandrashekhar Vs. State of U.P. & Ors.
1033
consolidation operation. Total area of
village is measuring 362 hectare and there
are 1094 plots (holdings). During spot
inspection only 263 plots were found along
side the chak road and remaining 841 plots
were found without facility of chak road. In
the impugned order, the Consolidation
Commissioner considered the points as
raised on behalf of villagers including
Awadhesh
Mishra
(petitioner
in
the
previous writ petition) and the village
Pradhan. Maximum villagers and the
Village Pradhan have categorically stated
that there is a shortage of drainage, chak
road and place for public convenience.
Having considered the rival submissions
and the reports submitted by the authority
concerned,
the
Consolidation
Commissioner has given a categorical
finding that the maximum land of public
utility, belongs to the Gaon Sabha, are in
the illegal occupation of miscreants. Apart
from that only 253 plots (23.12%) are with
the facility of chak road and remaining
75% of the land are without the facility of
chak road which is causing difficulty to
access the holdings. It is also observed by
the Consolidation Commissioner that land
of the maximum chak holders are in
scattered position without the facility of
drainage and chak road. A categorical
finding has also been recorded that
maximum number of villagers are in favour
of carrying out the consolidation operation.
Even Awadhesh Mishra (petitioner in
previous writ petition) has also agreed to
carry out the consolidation operation with
the condition of minimum deduction and to
avoid unnecessary shifting of chaks.

21. After discussing all the material
available on record and the averments
made by the parties concerned in detail, the
Consolidation Commissioner has returned
the finding of fact emphasizing the need to
carry out the consolidation operation in the
village/unit in question and issued a
direction to proceed with the consolidation
operation and issuance of notification under
Section 19 & 19-A of U.P.C.H. Act to
carry out the provisional consolidation
scheme. It has also been directed that
minimal area should be disturbed/shifted
while allotment of chaks to the chak
holders considering their convenience.
Finding of fact as returned by the
Consolidation
Commissioner
in
the
impugned order with respect to the
necessity for carrying out the consolidation
operation, as discussed in the impugned
order, has not been challenged by the
petitioner in this writ petition. It is also
apposite to mention that the petitioner of
earlier writ petition has accepted the
carrying out of consolidation operation
with a condition to avoid unnecessary
shifting of chak which has appropriately
been
accepted
by
the
Consolidation
Commissioner and, accordingly, issued
direction
to
complete
consolidation
operation. Moreover, order under challenge
passed by the Consolidation Commissioner
on the representation moved by villagers is
not a judicial order. He has returned finding
of fact after conducting proper enquiry by
the
authorities
concerned,
who
have
submitted their report, and accorded proper
opportunity of hearing to the parties
concerned.

22. In this conspectus as above, I am of
the considered view that no justifiable ground is
made out to interfere in the order under
challenge. Counsel for the petitioner has failed
to substantiate his submission in assailing the
impugned order and the issuance of notification
under Section 4-A of the U.P.C.H. Act. There is
nothing on the record to demonstrate as to how
the petitioner is prejudiced or is there any
likelihood of causing miscarriage of justice to
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
him due to the order under challenge. There is
no illegality, perversity and ambiguity in the
order under challenge which may warrant
indulgence of this Court in exercise of its extra
ordinary jurisdiction under Article 226 of the
Constitution of India. Even otherwise there is
no justification to review the intent of
legislation promulgated under Section 4-A of
the U.P.C.H. Act.

23. Resultantly, instant writ petition,
being misconceived and devoid of merits, is
dismissed with no order as to costs.
----------
(2022) 10 ILRA 1034
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-B No. 3822 of 1985

Gaya Din & Anr. ...Petitioners
Versus
Dy. Director of Consolidation & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri Yogesh Agarwal, Sri Sanjay Singh, Mrs.
Vatsala, Sri Ravi Kant

Counsel for the Respondents:
Sri A.N. Bhargawa, Sri Ashutosh Kumar
Tiwari

A. Civil Law - U.P Consolidation of
Holdings Act, 1953 - Section 9A - Resjudicata - decree of Civil Court passed in
injunction suit in respect of agricultural
land will not operate as res-judicata in the
title objection under Section 9A (2) of the
U.P.C.H. Act (Para 13)

B. Civil Law - U.P Consolidation of
Holdings Act, 1953 - Section 9A - Indian
Evidence Act, 1872 - Section 64, 65 & 90 -
if certified copy has not been placed on
record after satisfying the requirements of
Section 64/65 of the Indian Evidence Act,
1872, the mere fact that it was a certified
copy
by
itself,
would
not
make
it
admissible
in
evidence
since
it
is
secondary evidence and can be adduced in
evidence only as provided in statute and
not otherwise (Para 15)

Petitioners' father was recorded over disputed
plots till the basic year of consolidation -
respondent no.2 (Jairaji) claimed that Gift deed
was executed in her favour as such, she is the
sole-bhumidhar - Respondent no.2 although was
not recorded in the revenue records filed a civil
suit for injunction in respect of Bhumidari
disputed plots which was decreed in her favour
which attained finality by dismissal of civil
appeal filed by petitioners' father - On the basis
of civil Court's injunction decree, respondent
no.2 initiated proceedings for recording her
name over disputed Khata - Against the Basic
Year Entry objection was filed by respondent
no.2 for recording her name after expunging the
name of petitioners' father Kashi Ram - Original
copy of gift deed was not filed before
Consolidation Court rather certified copy was
filed before Consolidation Officer without any
explanation about the original Gift deed -
Consolidation Officer, dismissed the objection of
respondent no.2 and maintained the Basic Year
Entry and held that original of the Gift deed has
not been filed which goes against respondent
no.2 & further held that judgment of civil Court
passed in injunction suit will not operate as resjudicata in the proceeding initiated under
Section 9A (2) of U.P.C.H. Act - Appeal filed by
respondent no. 2 dismissed - Revisional Court
directed to record the name of respondent no.2
over the disputed plots after expunging the
name of petitioners - Revisional order passed on
the ground that certified Gift deed is more than
20 years old as such, in view of the provisions
contained under Section 90A of the Evidence
Act, the Gift deed will be presumed to be
executed genuine & on the basis of certified
copy of Gift deed, right can be given to opposite
party no.2 - Held - Revisional Court failed to
notice about the original Gift deed and that