# Gulam Anwar & Anr v. D.D.C./Upper Ziladhikari Judicial, Amethi & Ors

- **Citation:** (2021) 7 ILRA 136
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-17
- **Case number:** Consolidation No. 12180 of 2021
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulam-anwar-anr-v-d-d-c-upper-ziladhikari-judicial-amethi-ors-47065
- **Pages:** 7

## Headnote

C.S.C.
(a)
Consolidation
Proceedings
-
U.P.
Consolidation of Holdings Act, 1953 -
Section 9-A, 11, 12 - The decision in
proceedings
under
Section
9-A
is
appealable
and
the
decision
in
proceedings under Section 12 also being a
decision on title does not leave the
aggrieved party without the statutory
remedy of appeal. (Para 15).

On reading Section 9-A(1) it is inferred that the
Assistant Consolidation Officer shall, where the
objections in respect of claims to land or
partition of joint holdings are files, after hearing
the concerned parties and where objections are
not filed after making necessary inquiry, settle
the disputes, correct the mistakes and make
partition by conciliation and pass necessary
orders. If conciliation does not takes place the
Assistant Consolidation Officer shall forward
those cases. It is evident from Section 11 that
any party to the proceedings under Section 9-A
aggrieved by an order of the Assistant
Consolidation
Officer
or
the
Consolidation
Officer, may file an appeal before the Settlement
Officer, Consolidation. (Para 13)

(b) Words & Phrases - Mutatis Mutandis -
It mean that the matter or things are
generally the same, but to be altered
when necessary, as to names, offices and
the like. The rules which are adopted
make principles embodied in the rule
applicable and not the details pertaining
to particular authority or things of that
nature. (Para 11)

List of Cases cited:-

## Text

136 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner as 1/3 rd in the land in dispute and
the order passed in favour of respondent no.2
is upheld. Accordingly the orders passed by
Settlement
Officer
Consolidation
and
Consolidation Officer also stand quashed to
the extent of 1/3rd share of petitioner. The
said land shall be recorded in the name of
concerned Land Management Committee.
The Land Management Committee shall take
possession of the said land. The petitioner is
directed to vacate the land in question.

27. With the aforesaid, the writ petition
is disposed of. The Joint Director of
Consolidation , Sultanpur shall pass the
consequential order and communicate to the
concerned Land Management Committee for
further action and submit a compliance report
to this Court within four months. No order as
to costs.

28. A copy of this order shall be
communicated to the Joint Director of
Consolidation, Sultanpur forthwith.
----------
(2021)07ILR A136
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.06.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Consolidation No. 12180 of 2021

Gulam Anwar & Anr. ...Petitioners
Versus
D.D.C./Upper Ziladhikari Judicial, Amethi
& Ors. ...Respondents

Counsel for the Petitioners:
Deomani Tripathi

Counsel for the Respondents:
C.S.C.
(a)
Consolidation
Proceedings
-
U.P.
Consolidation of Holdings Act, 1953 -
Section 9-A, 11, 12 - The decision in
proceedings
under
Section
9-A
is
appealable
and
the
decision
in
proceedings under Section 12 also being a
decision on title does not leave the
aggrieved party without the statutory
remedy of appeal. (Para 15).

On reading Section 9-A(1) it is inferred that the
Assistant Consolidation Officer shall, where the
objections in respect of claims to land or
partition of joint holdings are files, after hearing
the concerned parties and where objections are
not filed after making necessary inquiry, settle
the disputes, correct the mistakes and make
partition by conciliation and pass necessary
orders. If conciliation does not takes place the
Assistant Consolidation Officer shall forward
those cases. It is evident from Section 11 that
any party to the proceedings under Section 9-A
aggrieved by an order of the Assistant
Consolidation
Officer
or
the
Consolidation
Officer, may file an appeal before the Settlement
Officer, Consolidation. (Para 13)

(b) Words & Phrases - Mutatis Mutandis -
It mean that the matter or things are
generally the same, but to be altered
when necessary, as to names, offices and
the like. The rules which are adopted
make principles embodied in the rule
applicable and not the details pertaining
to particular authority or things of that
nature. (Para 11)

List of Cases cited:-

1. Smt. Lal Dei (D) through L.Rs. & ors. Vs
Deputy Director of Consolidation, Varanasi &
ors. 2005 (2) AWC 1097

2. Devesh Singh & ors. Vs Deputy Director of
Consolidation, Banda & ors. 2005 (3) AWC 2663

3. Ashok Service Centre Vs St. of Orissa (1983)
2 SCC 82

4. Prahlad Sharma Vs St.of U.P. & ors. (2004) 4
SCC 113
7 All. Gulam Anwar & Anr. Vs. D.D.C./Upper Ziladhikari Judicial, Amethi & Ors.
137
5. Malkhan Singh Vs Sohan Singh (1985) 4 SCC
469

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Shri Deomani Tripathi,
learned counsel for the petitioners, Shri
Vinod Kumar Shukla, learned Standing
Counsel for the State-opposite parties No. 1
& 2 through video conferencing.

2. Learned counsel for the petitioners
submits that on the death of Ghulam
Mustafa, the recorded tenure holder of the
land in dispute, the names of the petitioners
were directed to be mutated in the
proceedings under Section 12 of the U.P.
Consolidation of Holdings Act, 1953 ( in
short, ''U.P.C.H. Act') vide order dated
29.07.2013
passed
by
the
Assistant
Consolidation Officer on the basis of
conciliation, against which, Mohsina Bano/
opposite party No. 3, daughter of Ghulam
Mustafa, filed an appeal which was allowed
by the Settlement Officer Consolidation
vide order dated 09.07.2015 with a
direction to record the names of petitioners
and of Mohsina Bano in place of the
deceased, Ghulam Mustafa. The petitioners
Revision No. 220 under Section 48(1) of
U.P.C.H. Act was dismissed by the order
dated 29.01.2021, under challenge in the
writ petition.

3. Learned counsel for the petitioners
has submitted that no appeal lies under
Section 11(1) of the U.P.C.H. Act against
the order of Assistant Consolidation Officer
passed under Section 12 of the Act, and
further that as the opposite party No. 3 was
not party before the Assistant Consolidation
Officer, the appeal at her instance was not
maintainable. The opposite party No.3
ought to have filed objection before the
Consolidation Officer or applied for
recall of the order before the Assistant
Consolidation Officer.

4. Learned counsel for the petitioner
has further submitted that even if the appeal
was maintainable and was allowed, the
matter should have been remanded to the
Consolidation Officer for its decision on
merits after affording opportunity of
leading evidence and hearing to the parties
concerned to prove their respective case.
He submits that Mohsina Bano was married
and not unmarried daughter of Ghulam
Mustafa on the date of his death, and as
such she was not preferential legal heir to
inherit along with the petitioners under
Section
171
of
the
U.P.
Zamindari
Abolition & Land Reforms Act (in short,
''U.P.Z.A. & L.R. Act').

5. Shri Vinod Kumar Shukla, the
learned Standing Counsel submits that the
appeal against the order of Assistant
Consolidation Officer was maintainable
under Section 11(1) of the U.P.C.H. Act and
in this regard, he has placed reliance in the
cases of Smt. Lal Dei(D) through L.Rs.
and others Vs. Deputy Director of
Consolidation, Varanasi and others,
reported in 2005 (2) AWC 1097 and in
Devesh Singh and others Vs. Deputy
Director of Consolidation, Banda and
others, reported in 2005 (3) AWC 2663.

6. I have considered the submissions
advanced and perused the material placed
on record.

7. So far as the first submission of the
learned counsel for the petitioners is
concerned that the appeal against the order
of Assistant Consolidation Officer passed
138 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 12 of the U.P.C.H.Act is not
maintainable and also on the ground that
the appeal was not maintainable at the
instance of the opposite party No. 3, not
party before the Assistant Consolidation
Officer, it has got no substance for the
reasons hereinafter.

8. In order to appreciate the
controversy, it is relevant to reproduce
Section 12 of the U.P.C.H.Act, which
provides as under:

"12.
Decision
of
matters
relating to changes and transactions
affecting rights or interests recorded in
revised records.- (1) All matters relating to
changes and transfers affecting any of the
rights or interests recorded in the revised
records published under sub-section (1) of
Section 10 for which a cause of action had
not arisen when proceedings under Sections
7 to 9 were started or were in progress, may
be raised before the Assistant Consolidation
Officer as and when they arise, but not later
than the date of notification under Section
52, or under sub-section (1) of Section 6."

(2) The provisions of Sections 7
to 11 shall mutatis mutandis, apply to the
hearing and decision of any matter raised
under sub-section (1) as if it were a matter
raised under the aforesaid sections.

9. It is evident from sub-section (1) of
Section 12 of the Act that an objection as
regards the matters relating to changes and
transfers affecting any of the rights or
interest recorded in the revised records
published under Section 10(1), for which
cause of action had not arisen when the
proceedings under Sections 7 to 9 were
started or were in progress, will be raised
before the Assistant Consolidation Officer
under Section 12(1) of the Act. Sub section
(2) of Section 12 of the Act makes it
evident that Sections 7 to 11 have been
made applicable mutatis mutandis to the
hearing and decision of those matters as if
such were the matters raised under Sections
7 to 11 of the U.P.C.H. Act.

10. Sub section (2) of Section 12 of
the Act uses the expression, ''mutatis
mutandis', which implies applicability of
any provision with necessary changes in
the points of details. In the case of Ashok
Service Centre Vs. State of Orissa,
reported in (1983) 2 SCC 82, the Hon'ble
Supreme Court has held that the expression
''mutatis mutandis' is a phrase of practical
occurrence, meaning that matters or things
are generally the same, but to be altered
when necessary, as to names, offices, and
the like. In paragraph-17 of the said report
the Honble Supreme Court has held as
under:

"17. ......... Before considering
what provisions of the Principal Act should
be read as part of the Act, we have to
understand the meaning of the expression
'mutatis mutandis'. Earl Jowitt's 'The
Dictionary of English Law (1959) defines
'mutatis mutandis' as 'with the necessary
changes in points of detail'. Black's Law
Dictionary (Revised 4th Edn. 1968) defines
'mutatis mutandis' as "with the necessary
changes in point of detail, meaning that
matters or things are generally the same,
but to be altered when necessary as to
names, offices, and the like. Housman v.
Waterhouse, 191 App. Div. 850, 182 N.Y.S
249, 251. ''In Bouvier's Law Dictionary
(3rd Revision, Vol. II), the expression
'mutatis mutandis' is defined as '(T)he
necessary changes. This is a phrase of
frequent practical occurrence, meaning that
matters or things are generally the same,
but to be altered when necessary, as to
names, offices, and the like". Extension of
7 All. Gulam Anwar & Anr. Vs. D.D.C./Upper Ziladhikari Judicial, Amethi & Ors.
139
an earlier Act mutatis mutandis to a later
Act brings in the idea of adaptation, but so
far only as it is necessary for the purpose,
making a change without altering the
essential nature of the thing changed,
subject of course to express provisions
made in the later Act.............."

In Prahlad Sharma Vs. State of
U.P. and others, reported in (2004) 4 SCC
113, the Hon'ble Supreme Court has held
that, "The expression "mutatis mutandis"
itself implies applicability of any provision
with necessary changes in points of detail.
The rules which are adopted, make the
principles embodied in the rules applicable
and not the details pertaining to particular
authority or things of that nature.

11. From the aforesaid it is clear that
''mutatis mutandis' means that the matters or
things are generally the same, but to be
altered when necessary, as to names, offices
and the like. The rules which are adopted
make the principles embodied in the rules
applicable and not the details pertaining to
particular authority or things of that nature.

12. Sections 9-A and 11 of the U.P.C.H.
Act also deserves to be reproduced as under:

"9-A. Disposal of Cases relating
to claims to land and partition of joint
holdings.-(1) The Assistant Consolidation
Officer shall -

(i) where objections in respect of
claims to land or partition of joint holdings
are filed, after hearing the parties concerned;
and

(ii) where no objections are filed
after making such enquiry as he may deem
necessary;

settle the disputes, correct the
mistakes and effect partition as far as may
be by conciliation between the parties
appearing before him and pass orders on
the basis of such conciliation:

[Provided
that
where
the
Assistant
Consolidation
Officer,
after
making such enquiry as he may deem
necessary, is satisfied that a case of
succession is undisputed, he shall dispose
of the case on the basis of such enquiry].

(2) All cases which are not
disposed of by the Assistant Consolidation
Officer under sub-section (1), all cases
relating to valuation of plots and all cases
relating to valuation of trees, wells or other
improvements,
for
calculating
compensation
therefor,
and
its
apportionment amongst co-owners, if there
be more owners than one, shall be
forwarded by the Assistant Consolidation
Officer to the Consolidation Officer, who
shall dispose of the same in the manner
prescribed.

(3) The Assistant Consolidation
Officer, while acting under sub-section (1)
and the Consolidation Officer, while acting
under sub-section (2), shall be deemed to
be a Court of competent jurisdiction,
anything to the contrary contained in any
other law for the time being in force
notwithstanding."

"11. Appeals.- (1) Any party to
the
proceedings
under
Section
9-A,
aggrieved by an order of the Assistant
Consolidation Officer or the Consolidation
Officer under that section, may, within 21
days of the date of the order, file an appeal
before
the
Settlement
Officer,
Consolidation, who shall, after affording
opportunity of being heard to the parties
concerned, give his decision thereon which,
except as otherwise provided by or under
this Act, shall be final and not be
questioned in any Court of law.
140 INDIAN LAW REPORTS ALLAHABAD SERIES

(2)
The
Settlement
Officer,
Consolidation, hearing an appeal under
sub-section (1) shall be deemed to be a
Court of competent jurisdiction, anything
to the contrary contained in any law for the
time being in force notwithstanding."

13. It is evident from Section 9-A(1)
of the Act that the Assistant Consolidation
Officer shall, where the objections in
respect of claims to land or partition of
joint holdings are filed, after hearing the
concerned parties and where objections are
not filed after making necessary inquiry,
settle the disputes, correct the mistakes and
make partition by conciliation between the
parties and pass orders on the basis of
conciliation. If conciliation does not take
place the Assistant Consolidation Officer
shall
forward
those
cases
to
the
Consolidation officer, who shall decide
those cases in the prescribed manner and it
is evident from Section 11, that any party to
the
proceedings
under
Section
9-A
aggrieved by an order of the Assistant
Consolidation Officer or the Consolidation
Officer, may file an appeal before the
Settlement Officer, Consolidation. Thus, it
is clear that an order passed by the
Assistant
Consolidation
Officer
under
Section 9-A on the basis of conciliation is
appealable before the Settlement Officer
Consolidation under Section 11(1) of the
Act. As Section 9-A has been made
applicable to the hearing and decision of
any matter raised under Section 12(1),
disputes raised under Section 12(1) are to
settled by the Assistant Consolidation
Officer on the basis of conciliation and if
conciliation does not take place, those cases
are to be forwarded to the Consolidation
Officer for decision in the prescribed
manner and as Section 11 has also been
made applicable the order passed by the
Assistant Consolidation Officer on the
basis of conciliation under Section 12(1)
read with Section 9-A(1) would be
appealable before the Settlement Officer
Consolidation.

14. There is another aspect of the
matter. The scheme of the U.P.C.H. Act
clearly suggests that on the commencement
of
the
consolidation
proceedings
an
aggrieved person whose name is not
recorded or who has any grievance with
regard to the title may raise objection under
Section 9-A of the U.P.C.H. Act. This is the
first stage of filing objection. Such
objection under Section 9-A shall be heard
and disposed of after full fledge trial by the
Consolidation Officer, which could not be
settled on the basis of conciliation and
thereafter, there is remedy of appeal under
Section 11(1) before the Settlement Officer
Consolidation. The objection under Section
12 relates to changes and transactions
recorded in the revised record published
under Section 10(1), for which a cause of
action had not arisen when the proceedings
under Sections 7 to 9 had been started or
were in progress. This is the second stage,
at which objection can be maintained
subject to the conditions mentioned in
Section 12(1) of the Act. The difference, as
regards the two objections, is of the stages
only, otherwise, the decision with respect to
the matter under Section 12 is also a
decision of title. In Malkhan Singh Vs.
Sohan Singh, (1985) 4 SCC 469, the
Hon'ble
Supreme
Court
has
very
specifically laid down that after the
amendment of 1963, Sections 7 to 11 of the
Act deal with rights and title of the tenure
holder and by the application of those
provisions to the proceedings under Section
12 in matters for which cause had arisen
subsequently, the decision is a decision of
title. Prior to amendment of 1963, the
position was different as there was no
7 All. Gulam Anwar & Anr. Vs. D.D.C./Upper Ziladhikari Judicial, Amethi & Ors.
141
provision for the adjudication of rights and
title of tenure holder once the title and
interest of the original tenure holder had
been finally determined and Chak had been
allotted.

15. Therefore, the decision in
proceedings under Section 9-A, being
appellable and the decision in proceedings
under Section 12 also being a decision on
title, it cannot be conceived that such a
decision, may be a settlement of dispute by
Assistant
Consolidation
Officer
on
conciliation or by Consolidation Officer by
following the prescribed procedure, would
not be appellable under Section 11(1) of the
Act. The decision under Section 12also
being a decision on title, the aggrieved
party cannot be left without the statutory
remedy of appeal, only because of the
objection
having
been
raised
at
a
subsequent stage when cause accrued for
which statute grants permission.

16. So far as the second limb of the
first submission of the learned counsel for
the petitioners is concerned that the appeal
is not maintainable as the opposite party
No. 3 was not the party before the Assistant
Consolidation Officer, this has already been
settled by this Court in the cases of Devesh
Singh (supra) and Laldei (supra).

17. In Devesh Singh (supra), this
Court held that, a perusal of Section 11
permits any party to the proceeding under
Section 9A of the Act aggrieved by an
order
of
the Assistant
Consolidation
Officer/ Consolidation Officer under that
section, to file an appeal. Thus, right has
been given to every party to the proceeding
under Section 9A(2) of the Act to file
appeal. The right conferred on a party to
file appeal, has not been restricted to the
party if he takes the ground that the order is
ex parte. Thus, where the party who is
filing appeal even if takes ground that the
order is ex parte or the order is otherwise
bad on merit, in both situation, he can file
appeal. It was held that against the order of
Assistant
Consolidation
Officer/
Consolidation
Officer
passed
in
proceedings under Section 9A(2) of the
Act, in both class of cases, appeal would be
maintainable. In Smt. Lal Dei (supra) this
Court held that as and when there is an
order
by
an Assistant
Consolidation
Officer/ Consolidation Officer, any person
claiming himself aggrieved on proof of
prejudice and adverse effect from the order
sought to be challenged has a right to move
that very court, or the appellate court.

18. In view of the aforesaid, the first
submission of the petitioners' counsel has
no substance that the appeal filed by the
opposite party No. 3, Mohsina Bano,
against
the
order
of
the
Assistant
Consolidation Officer passed on the basis
of conciliation between the petitioners was
not maintainable.

19. The second submission of the
learned counsel for the petitioners that the
matter should have been remanded to the
Consolidation Officer, so that the question
if Mohsina Bano, was married daughter or
unmarried daughter on the date of death of
Ghulam Mustafa, and was entitled to
succeed along with the petitioners, could be
decided by the Consolidation Officer as per
the prescribed procedure under Section 9A(2) read with Section 12 after affording
opportunity of leading evidence and
hearing,
and
the
Settlement
Officer
Consolidation and the Deputy Director of
142 INDIAN LAW REPORTS ALLAHABAD SERIES
Consolidation could not have assumed her
to be the unmarried daughter entitled to
succeed along with the petitioners, prima
facie, appears to have force and requires
consideration.

20. Issue notice to the opposite party
No. 3.

21. The opposite parties may file
counter affidavit within a period of six weeks.

22. Rejoinder affidavit may be filed
within one week thereafter.

23. List in the month of August, 2021.

24. The petitioners have made out a
case of grant of interim order. The orders
under challenge shall remain stayed and the
parties shall not change the nature of property
in suit nor shall create any third party interest
till the next date of listing.
----------
(2021)07ILR A142
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 304 of 2020

Mohd. Javed ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Petitioner:
Sri Mukesh Kumar

Counsel for the Respondents:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
374(2)
-
Narcotics
Drugs
and
Psychotropic
Substance Act, 1985-Sections 18,20, 21conviction-prayer for lenient view on the
quantum
of
sentence-accused
only
member of the family to look after his
parents-no criminal history-accused did
not press legality of sentence, but he
pressed only on the quantum of sentence
as he had already served out for two years
and four months.(Para 5)

B. The criminal can ordinarily be redeemed
and the state has to rehabilitate rather
than avenge. Apex court laid emphasis on
proportional sentencing by affirming the
doctrine
of
proportionality.
the
fundamental purpose of imposition of
sentence is based on the principle that the
accused must realize that the crime
committed by him has not only created a
dent in the life of the victim but also a
concavity in the social fabric. the impact
on the society as a whole has to be
seen.(Para 8 to 17)

The appeal is partly allowed. (E-5)

List of Cases cited:

1. Mohd. Giasuddin Vs St. of A.P. (1977) AIR
SC 1926

2. Sham Sunder Vs Puran (1990) 4 SCC 731

3. St. of M.P. Vs Najab Khan (2013) 9 SCC 509

4. Jameel Vs St. of U.P. (2010) 12 SCC 532

5. Guru Basavraj Vs St. of Karn., (2012) 8 SCC
734,

6. Deo Narain Mandal Vs St. of U.P. (2004) 7
SCC 257

7. Shyam Narain Vs St. (NCT of Delhi)(2013) 7
SCC 77

8. Sumer Singh Vs Surajbhan Singh (2014) 7
SCC 323

9. St. of Punj.Vs Bawa Singh (2015) 3 SCC 421

10. Raj Bala Vs St. of Har. (2016) 1 SCC 463