# Chaturbhuj and others v. State of U.P. and others

- **Citation:** (2012) 3 ILRA 1208
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-09-12
- **Case number:** Civil Misc. Writ Petition No. 46389 of 2012
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chaturbhuj-and-others-v-state-of-u-p-and-others-42433
- **Pages:** 5

## Headnote

Constitution of India, Article 226-Prayer
for
quashing
entire
consolidation
proceeding-on ground allotment of Chak
over Pond-without following provisions
of Roadside Control Act-petitioners have
alternative remedy to file objection
under Section 6 of the Consolidation of
Holding Act-strict in accordance with
grounds mentioned in Section 17 of the
Act-without
ex
hosting
alternative
remedy-direct
Writ
Petition-not
maintainable.

Held: Para 8

From the perusal of section 6 of the Act
read with Rule 17 of the Rules, it
transpires that the power of cancellation
of the notification under section 4 of the
Act is vested with the State Government
under section 6 of the Act and the
grounds for cancellation are mentioned
in Rule 17 of the Rules. The petitioners
herein, it appears, have done no spade
work and the writ petition has been filed
on the bald allegations without there
being any concrete detail with regard to
the irregularities in the consolidation
proceedings.
Case law discussed:
2004 (96) RD 454; 2006 (101) RD 792; 1998
(8) SCC

## Text

1208 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
cannot travel beyond the Presidential
Notification.Treating a denotified tribe
equivalent to a scheduled tribe for the
purpose of any benefit by the State does
not amount to a declaration that the
denotified tribe is a Scheduled Tribe
which is also beyond the powers of the
State
Government.
The
contention,
therefore, of the learned Standing Counsel
is correct that the relief as prayed for to
treat the petitioners as scheduled tribe
cannot be granted by the Court.

13. In view of conclusions drawn
herein above and the ratio of the decisions
cited at the Bar, the petitioners cannot be
extended the benefit of getting the
privilege of a Schedule Tribe in the
absence of a Presidential notification
under Articles 341 and 342 of the
Constitution of India.

14. The Writ Petition lacks merit
and is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 46389 of 2012

Chaturbhuj and others
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Preet Pal Singh Rathore

Counsel for the Respondents:
C.S.C.
Sri Mahesh Narain Singh

Constitution of India, Article 226-Prayer
for
quashing
entire
consolidation
proceeding-on ground allotment of Chak
over Pond-without following provisions
of Roadside Control Act-petitioners have
alternative remedy to file objection
under Section 6 of the Consolidation of
Holding Act-strict in accordance with
grounds mentioned in Section 17 of the
Act-without
ex
hosting
alternative
remedy-direct
Writ
Petition-not
maintainable.

Held: Para 8

From the perusal of section 6 of the Act
read with Rule 17 of the Rules, it
transpires that the power of cancellation
of the notification under section 4 of the
Act is vested with the State Government
under section 6 of the Act and the
grounds for cancellation are mentioned
in Rule 17 of the Rules. The petitioners
herein, it appears, have done no spade
work and the writ petition has been filed
on the bald allegations without there
being any concrete detail with regard to
the irregularities in the consolidation
proceedings.
Case law discussed:
2004 (96) RD 454; 2006 (101) RD 792; 1998
(8) SCC

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. This writ petition has been filed
with the following prayers:

"1. issue a writ order or direction in
the nature of certiorari call for record
and quashing the entire consolidation
proceedings of the Gram Panchayat
Dhharaul, Tehsil Chandausi, District
Sambhal.

2. issue a writ order or direction in
the nature of mandamus directing the
respondents for not to make interfere in
the peaceful possession of the respective
land of the petitioners in pursuance of
present
consolidation
proceedings.
3 All] Chaturbhuj and others V. State of U.P. and others
1209

3. issue a writ order or direction in
the nature of mandamus directing the
respondent
no.
2
to
decide
the
representation dated 21.7.2012 (annexure
no. 1) of the petitioner immediately within
some specific time.

4. issue a writ order or direction in
the nature of mandamus directing the
respondents to restart the consolidation
operation proceedings afresh in the
Village Panchayat of the petitioners in
respect of Kabza Parivardhan and in view
of the preparation of Aakar Patra - 5 and
23 in respect of village Dhharaul, Tehsil
Chandausi, District Sambhal.

5. issue a writ order or direction in
the nature of mandamus directing the
respondents
to
serve
the
copy
of
notification U/s 4 of Consolidation of
Holdings Act in respect of the village of
the petitioners immediately within some
specific time.

6. issue a writ order or direction in
the nature of mandamus directing the
respondent nos. 1 and 2 to take necessary
penal action against the respondents
consolidation authorities in accordance
with
law,
for
their
faults
and
irregularities
committed
in
the
consolidation proceedings in the village
of the petitioners.

7. issue any other writ order or
direction, which this Hon'ble Court may
deem fit and proper under the facts and
circumstances of the case.

8. To award the cost of the petition to
the petitioners."

2. Heard Sri Preet Pal Singh
Rathore,
learned
counsel
for
the
petitioners, Sri M.N. Singh, learned
counsel for the Gaon Sabha and learned
Standing Counsel appearing for the State -
respondents.

3. This writ petition appears to have
been filed by 26 petitioners with the
allegations that more than 300 tenure
holders, out of 500 tenure holders, of
Village Dhharaul, Pargana and Tehsil
Chandausi, District Bhim Nagar are
aggrieved by the continuance of the
consolidation proceedings and pray for
quashing of the same.

4. It is contended that amongst the
aggrieved tenure holders, the members of
the consolidation committee have also
signed the representation, which has been
made to the Divisional Comissioner,
Moradabad Division, Moradabad. The
allegations are that the notification under
section 4 of U.P. Consolidation of
Holdings Act, 1953 (hereinafter referred
to as, 'the Act') was issued in the year
2005 and at present, the proceedings with
regard to the carving of chak is going on.
In the submissions of Sri Rathore, the
consolidation authorities are committing
irregularities, like allotment of chak over
the ponds and they are also not following
the procedure of U.P. Road Side Control
Act.

5. A preliminary objection has been
raised by the learned Standing Counsel
stating therein that for redressal of
petitioners'
grievance,
neither
the
Divisional Commissioner nor the Deputy
Director of Consolidation is competent. In
his submissions, the petitioners have
efficacious remedy under section 6 of the
Act read with Rule 17 of the U.P.
Consolidation of Holdings Rules, 1954
(hereinafter referred to as, 'the Rules') and
1210 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
in case the petitioners are aggrieved, they
may approach to the State Government /
competent authority to whom such power
has been delegated, for redressal of their
grievance.

6. In the submissions of Sri Rathore,
the
entire
consolidation
proceedings
should be quashed for the various
irregularities
committed
by
the
consolidation authorities. In support of his
submissions, he has placed reliance upon
the judgments of this Court in the cases of
Smt. Saroj Sharma Vs. State of U.P. and
Others, 2004 (96) RD 454 and Harpal
Singh and Others Vs. State of U.P. and
Others, 2006 (101) RD 792.

7. I have heard learned counsel for
the petitioners and learned Standing
Counsel.
For
appreciating
the
controversy, the provisions contained
under section 6 of the Act and Rule 17 of
the Rules are reproduced hereinunder:

"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
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
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."

8. From the perusal of section 6 of
the Act read with Rule 17 of the Rules, it
transpires that the power of cancellation
of the notification under section 4 of the
Act is vested with the State Government
under section 6 of the Act and the grounds
for cancellation are mentioned in Rule 17
of the Rules. The petitioners herein, it
appears, have done no spade work and the
writ petition has been filed on the bald
allegations without there being any
concrete detail with regard to the
irregularities
in
the
consolidation
proceedings. Therefore, the cases cited by
the petitioners in the cases of Smt. Saroj
Sharma and Harpal Singh (supra) are of
no avail. In the case of Harpal Singh
(supra), it appears, the notification was
issued in the year 1960 and the writ
3 All] Chaturbhuj and others V. State of U.P. and others
1211
petition was filed in the year 2006, almost
46 years after the date of notification, and
this Court has interfered and quashed
section 4 notification on the ground that
during these long years, valuation of the
land has gone much higher and that aspect
has to be considered. So far as in the case
of
Smt.
Saroj
Sharma
(supra)
is
concerned, the facts of that case are also
different from the facts of this case.
Otherwise also, sitting under Article 226
of the Constitution of India, this Court is
not supposed to enter into the factual
controversy and investigate the fact and
record any finding over that, particularly,
in the circumstances when the efficacious
remedy is available under the Act and
Rules.

9. The Apex court in numerous
cases has observed that where alternative
remedy is available the court must move
on very slow pace in entertaining the writ
petition
under
Article
226
of
the
Constitution of India. In Rashid Ahmed
Vs. Municipal Board Kairana AIR 1950
Supreme Court 163, the Apex Court held
that existence of an adequate legal remedy
was a factor to be taken into consideration
in the matter of granting writs. This was
followed by another Rashid Case namely
K.S. Rashid and Son Vs. Income Tax
Investigation Commission AIR 1954 S.C.
207 where the Supreme Court reiterated
the proposition and held that where
alternative remedy existed, it would be a
sound exercise of discretion to refuse to
entertain in a petition under Article 226 of
the Constitution of India. This proposition
was again considered by a Constitution
Bench
of
the
Apex
Court
in
A.V.Venkateswaran,
Collector
of
Customs
Vs.
Ramchand
Sobhraj
Wadhwani AIR 1961 Supreme court
1506 and another Constitution Bench
decision in Calcutta Discount Co. Ltd.
Vs. ITO, Companies Distt. AIR 1961
Supreme court 372.

10. In Whirlpool Corporation Vs.
Registrar of Trade Marks 1998 (8) SCC
the Apex court although held that the
High Court should have entertained the
writ petition instead of throwing the
person to avail the alternative remedy but
in that case the order passed by the
authority
concerned
was
without
jurisdiction and therefore the Apex Court
had taken the view that if the order was
without jurisdiction, the writ petition
should have been entertained instead of
throwing it at threshold. In this case, the
competent authority has yet not been
approached
for
redressal
of
their
grievance.
This
Court
is
already
overburdened, therefore, in view of the
availability of the efficacious alternative
remedy, I refuse to exercise the discretion
under Article 226 of the Constitution of
India by entertaining this writ petition.

11. In view of that, I am not inclined
to interfere in this matter. No relief, as
prayed for, can be granted under Article
226 of the Constitution of India. The writ
petition is disposed of with the liberty to
the
petitioners
to
file
a
detailed
representation with careful spade work
giving details of the irregularities before
the
State
Government
/
competent
authorities to whom such power has been
conferred, for redressal of their grievance
alongwith certified copy of the order of
this Court. In case such representation is
made, that may be considered and decided
on its own merit in accordance with law.
---------
1212 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2012

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 47087 of 2012

Rajendra Kumar Bajpai
 ...Petitioner
Versus
Shailesh Kumar Shukla and another

 ...Respondents

Counsel for the Petitioner:
Sri S.K. Nigam

Counsel for the Respondents:
..........................................

Code of Civil Procedure-Order 41 Rule
27-Additional
evidence-application
refused by Trail Court-Appeal-held not
maintainable-only in regular appeal such
application can be entertain strict in
accordance with scope of Order 41 Rule
27.

Held: Para 10

In view of totality of the facts and
circumstances, I am of the opinion that
the application for additional evidence
before the appellate court below that
was seized with the misc. appeal was not
maintainable and the court below has
not committed any error of law in
rejecting the same.
Case law discussed:
AIR 1993 Alld. 67

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard learned counsel for the
petitioner.

2. This writ petition is directed against
the order dated 27.07.2012 rejecting
petitioner's
application
for
additional
evidence in misc. appeal arising out of an
interim injunction order.

3. The submission of learned counsel
for the petitioner is that additional evidence
in appeal is permissible under Order 41
Rule 27 C.P.C.

4. The above misc. appeal is directed
against the order dated 11.8.06 passed by
the court of first instance. The court of first
instance on an application for interim
injunction instead of granting an ex parte
order directed for issuing notices to the
other side and posted the application for
consideration thereafter vide order dated
11.08.06. The said appeal is not against any
final order which determines the rights of
the parties on the basis of any evidence.
Therefore, in appeal also only the matter
with regard to grant of any interim
injunction has to be considered on the basis
of the pleadings and the material on record
without any aid of evidence. Any evidence
adduced in such misc. appeal will not be
part of evidence in the suit. Therefore, even
if the provisions of Order 41 C.P.C. as a
whole have been made applicable to misc.
appeals filed under Order 43 by virtue of
Rule 2 of Order 43 C.P.C., it would not be
applicable for the purposes of adducing
additional evidence.

5. Similarly, the power of the
appellate court to take additional evidence
as contemplated by Section 107 C.P.C.
would not come into play in a misc. appeal
especially one arising from an order passed
on interim injunction application as the
question of additional evidence arises only
when
evidence
had
been
previously
recorded in the suit.

6. The provisions of Order 41 Rule 27
C.P.C. are applicable in three contingencies