# Prabhakar Dwivedi v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 105
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-18
- **Case number:** Writ B No. 1426 of 2022
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhakar-dwivedi-v-state-of-u-p-ors-48704
- **Pages:** 5

## Headnote

Civil Law - U.P. Consolidation of Holdings
Act,1953 - Sections 4 & 6 - Cancellation of
notification u/s 4 - Effect - Village in
question

came
under
operation
of
Consolidation
through
notification
dt.
05.05.1972 u/s 4 of U.P.C.H. Act - ACO
passed an order for recording the name of
petitioner's father on the basis of Saledeed - Notification u/s 6 (1) of U.P.C.H.
Act in respect to village took place on
07.06.2016 by which notification u/s 4
issued / published on 5.5.1972 was
cancelled - G.O. dated 12.12.2014 was
issued to the effect that orders which
have attained finality before notification
u/s 6(1) took place, the same must be
recorded / implemented in the revenue
records - Authorities did not recorded the
name of the petitioner's father name -
Held
-
final
orders
passed
before
publication of notification u/s 6 (1) of
U.P.C.H. Act are to be incorporated /
implemented in the revenue records as
provided u/s 6 (2) of the U.P.C.H. Act -
Rule 109A do not apply as Rule 109 A of
U.P.C.H. Rules will apply for the cases
covered under Section 52 (2) of U.P.C.H.
Act. (Para 9)

Allowed. (E-5)

List of Cases cited:

## Text

8 All. Prabhakar Dwivedi Vs. State of U.P. & Ors.
105
Consolidation & others, reported in
2005(99) R.D. 46 has held that one of the
requirements of natural justice is spelling
out reasons for the order made, in other
words, a speaking out.

11. In view of above, the Court is of
the opinion that the impugned order of the
revisional court is not liable to be sustained
and the same is hereby set aside.

12. The matter is remanded back to
the Deputy Director of Consolidation to
decide the revision afresh, after affording
opportunity of hearing to both the parties,
expeditiously preferably within a period of
three months from the date of production of
a certified copy of this order before him.

13. For a period of three months from
today or till decision of the revision by the
Deputy
Director
of
Consolidation,
whichever is earlier, status-quo with respect
to possession be maintained by the parties
on the spot.

14. The writ petition stands allowed
to the aforesaid extent.
----------
(2022) 8 ILRA 105
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 1426 of 2022

Prabhakar Dwivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pramod Kumar Dwivedi

Counsel for the Respondents:
C.S.C., Sri Sunil Kumar

Civil Law - U.P. Consolidation of Holdings
Act,1953 - Sections 4 & 6 - Cancellation of
notification u/s 4 - Effect - Village in
question

came
under
operation
of
Consolidation
through
notification
dt.
05.05.1972 u/s 4 of U.P.C.H. Act - ACO
passed an order for recording the name of
petitioner's father on the basis of Saledeed - Notification u/s 6 (1) of U.P.C.H.
Act in respect to village took place on
07.06.2016 by which notification u/s 4
issued / published on 5.5.1972 was
cancelled - G.O. dated 12.12.2014 was
issued to the effect that orders which
have attained finality before notification
u/s 6(1) took place, the same must be
recorded / implemented in the revenue
records - Authorities did not recorded the
name of the petitioner's father name -
Held
-
final
orders
passed
before
publication of notification u/s 6 (1) of
U.P.C.H. Act are to be incorporated /
implemented in the revenue records as
provided u/s 6 (2) of the U.P.C.H. Act -
Rule 109A do not apply as Rule 109 A of
U.P.C.H. Rules will apply for the cases
covered under Section 52 (2) of U.P.C.H.
Act. (Para 9)

Allowed. (E-5)

List of Cases cited:

1. Ram Deo & anr. Vs St. of U.P. & ors. dt
29.9.2021 Writ- B No.1895 of 2021

2. Desh Raj & anr. Vs St. of U.P. & ors. dt
8.10.2021 Writ- B No.1719 of 2021

3. Roshan Vs St. of U.P. & ors. dt 05.07.2022
Writ-B No.1446 of 2022

(Delivered by Hon'ble Chandra Kumar Rai, J.)

1. Heard Sri Pramod Kumar Dwivedi,
learned counsel for the petitioner, learned
standing counsel for the State and Mr. Sunil
106 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar for the caveator although there is no
private party in the writ petition.

2. Learned counsel for the petitioner
is permitted to correct the the array of party
in respect of respondent no.3 during course
of the day.

3. With the consent of the parties the
writ petition is being heard and decided
finally at the admission stage.

4. The instant writ petition has been
filed by the petitioner for following reliefs:-

"(i) Issue a writ, order or
direction in the nature of mandamus
directing the respondent nos.3 and 4 to
make an entry and correct the recent
revenue record in respect of order dated
25.08.1977 in Case No.5939 and order
dated 31.05.1977 in Case No.5699 passed
by the learned Assistant Consolidation
officer, Oran (Majhivansi) District-Banda
under the provisions of the Section 6 (2)
of the U.P.consolidation Act and may also
be directed to issue the copy of fresh
Khatauni of the Gata No. 5809, 2225/1 &
2224/1 of Village-Oran to the petitioner.

(ii) Issue a writ, order or
direction in the nature of mandamus
directing the respondent no.3 to consider
and decide the representation dated
03.02.2022 submitted by petitioner before
the District Magistrate, Banda.

(iii) Issue any writ, order or
direction, which this Hon'ble Court may
deem fit and proper under the facts and
circumstances of the case.

(iv) Award the cost of the Writ
Petition."

5. Brief facts of the case are that
village-Oran,
Tehsail,
Pargana-Atarra,
District-Banda came under operation of
U.P. Consolidation of Holdings Act through
notification
dated
05.05.1972
under
Section-4
of
U.P.
Consolidation
of
Holdings Act. Assistant Consolidation
Officer Banda passed an order dated
25.08.1977 in Case No.5939 with respect to
plot No.5809 area 13-1/3 Bigha - 8 Biswa
for recording the name of petitioner's father
Bhagwati Prasad on the basis of Sale-deed.
Assistant Consolidation Officer passed an
order dated 31.05.1977 in Case No. 5699
with respect to Plot No.2225/1 area 15
Biswa, 2224/1 area 2 Biswa for recording
the name of petitioner's father Bhagwati
Prasad along with others. Copy of orders
dated 25.08.1977 and 31.05.1977 have
been annexed as Annexure Nos. 2 and 3 to
the writ petition. In para No.7 of the writ
petition it has been stated that order dated
25.08.1977 passed in Case No.5939 and
order dated 31.05.1977 passed in Case
No.5699 have not been challenged in any
court by any party and the orders have
become final. Notification under Section 6
(1) of U.P.C.H. Act in respect to village in
question took place on 07.06.2016 by
which notification under Section 4 of the
U.P. C.H. Act, issued / published on
5.5.1972
was
cancelled.
Copy
of
notification dated 7.6.2016 has been
annexed as Annexure No.1 to the Writ
Petition.
A
government
order
dated
12.12.2014 has been issued by respondent
no.2 to the effect that orders which have
attained finality before notification under
Section 6(1) took place, the same must be
recorded / implemented in the revenue
records. Copy of government order dated
12.12.2014 has been annexed as Annexure
No.7 to the Writ Petition. Petitioner made
efforts even submitted an application /
representation before respondent no.3 for
the implementation of the orders and
recording the name of petitioner in the
revenue records in compliance of the orders
8 All. Prabhakar Dwivedi Vs. State of U.P. & Ors.
107
which
have
attained
finality
before
notification under Section 6(1) of the U.P.
C.H. Act took place but authorities are
sitting tight over the matter, hence this writ
petition on behalf of the petitioner.

6. Petitioner submitted that in view
of the publication of notification under
Section 6 (1) of U.P.C.H. the final order
passed
in
favour
of
petitioner
be
incorporated
/
implemented
in
the
revenue
records
as
provided
under
Section 6 (2) of the U.P.C.H. Act. For the
ready reference Section 6 of U.P.C.H. Act
is as follows:

"6. Cancellation of notification
under Section 4 - (1) It shall be lawful for
the State Government at any time to
cancel the 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
the cancellation.

He further submitted that respondent
no.3 is duty bound to record the name of
the petitioner forthwith as notification
under Section 6(1) was published long
back on 7.6.2016. Learned counsel for
the petitioner placed reliance upon the
judgment of this Court in the Case of
Ram Deo and Another Vs. State of U.P.
and 2 Others delivered on 29.9.2021 in
Writ- B No.1895 of 2021, in the Case of
Desh Raj and Another Vs. State of U.P.
and 3 Others delivered on 8.10.2021 in
Writ- B No.1719 of 2021 as well as in the
case of Roshan Vs. State of U.P. and
others delivered on 05.07.2022 in Writ-B
No.1446 of 2022.

7. On the other hand, learned
Standing
Counsel
submitted
that
petitioner has remedy to file application
under Rule 109 A of U.P.C.H. Rules and
placed reliance upon Rule 109 A, which
is as follows:

109A. Section 52(2). - (1) Orders
passed in cases covered by sub-section (2)
of Section 52 shall be given effect to by the
consolidation authorities, authorized in
this behalf under sub-section (2) of
Section 42. In case there be no such
authority the Assistant Collector, incharge
of the sub-division, the Tahsildar, the
Naib-T ahsildar, the Supervisor kanungo,
and the Lekhpal of the area to which the
case relates shall, respectively, perform the
functions and discharge the duties of the
Settlement
Officer,
Consolidation,
Consolidation
Officer,
the
Assistant
Consolidation Officer, the Consolidator
and
the
Consolidation
Lekhpal
respectively for the purpose of giving
effect to the orders aforesaid.

(2) If for the purpose of giving
effect to any order referred to i n sub-rule
(1) i t becomes necessary to reallocate
affected chaks, necessary orders may be
passed by the Consolidation Officer, or the
Tahsildar , as the case may be, after
affording proper opportunity of hearing to
the parties concerned.

(3) Any person aggrieved by the
order of the Consolidation Officer, or the
Tahsildar, as the case may be, may, within
15 days of the order passed under sub-rule
(2), file an appeal before the Settlement
Officer, Consolidation, or the Assistant
Collector incharge of the sub-division, as
the case may be, who shall decide the
108 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal
after
affording
reasonable
opportunity of being heard to the parties
concerned, which shall be final.

(4) In case delivery of possession
becomes necessary as a result of orders
passed under sub-rule (2) or sub-rule (3),
as the case may be, the provisions of Rules
55 and 56 shall, mutatis mutandis , be
followed.

Perusal of Section 52 (2) of the
U.P.C.H. Act will also be necessary which
is as follows:

52(2) Notwithstanding anything
contained in sub-section (1), any order
passed
by
a
Court
of
competent
jurisdiction in cases of writs filed under
the provisions of the Constitution of India,
or in cases of proceedings pending under
this Act on the date of issue of the
notification under sub-section (1), shall be
given effect to by such authorities, as may
be prescribed and the consolidation
operation shall, for that purpose, be
deemed to have not been closed."

8. I have considered the submissions
advanced by learned counsels for the
parties and perused the records.

9. There is no dispute about the fact
that notification under Section 4 published
on 5.5.1972 has been cancelled by
publication of notification under Section 6
of U.P.C.H. Act on 7.6.2016, as such, the
final orders passed before publication of
notification under
Section 6
(1)
of
U.P.C.H.Act are to be incorporated /
implemented in the revenue records as
provided under Section 6 (2) of the
U.P.C.H. Act.

10. The argument advanced by
learned Standing Counsel that petitioner
should avail remedy under Rule 109 A of
U.P.C.H. Rules is misconceived. The
perusal of Rule 109 A of U.P.C.H. Rules
and Section 52 (2) of the U.P.C.H. Act as
quoted above fully demonstrate that Rule
109 A of U.P.C.H. Rules will apply for the
cases covered under Section 52 (2) of
U.P.C.H. Act. In respect to the matters
where notification under Section 6 (1) of
the U.P.C.H. Act has been published, the
consequences of the Section 6 (2) of the
U.P.C.H. Act will apply and authorities are
duty bound to follow the same forthwith.

11. In the present matter notification
under Section 6 (1) of the U.P.C.H. Act was
published on 7.6.2016 and more than six
years have been passed but authorities are
sitting tight over the matter.

12. Considering the entire facts and
circumstances of the case as well as the ratio
of law laid down by this Court in Ram Deo
(supra), the present writ petition is allowed
directing
the
respondent
no.3
District
Magistrate/District
Deputy
Director
of
Consolidation, Banda to ensure compliance
of the order dated 25.08.1977 passed in Case
No.5939 and order dated 31.05.1977 passed
by the learned Assistant Consolidation
Officer, oran (Majhivansani) District Banda
in Case No.5699, in the light of the provision
contained under Section 6 (2) of the U.P.C.H.
Act and issue fresh Khatauni with respect to
the petitioner's disputed land situated in the
Village- Oran, District- Banda expeditiously,
preferably within a period of two months
from the date of production of certified copy
of this order before him. Respondents shall
have liberty to file recall application before
this Court if it is found that order which are to
be implemented have not attained finality
before publication of notification under
Section 6 (1) of U.P.C.H. Act.

13. The writ petition stands allowed.
No order as to the costs.
8 All. Smt. Sheela Rustagi & Anr. Vs. State of U.P. & Ors.
109
----------
(2022) 8 ILRA 109
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ C No. 2255 of 2021
with
Writ C No. 760 of 2021
&
Writ C No. 18846 of 2020

Smt. Sheela Rustagi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Desh Ratan Chaudhary

Counsel for the Respondents:
C.S.C., Ms. Anjali Upadhya, Sri Ramendra
Pratap Singh

A. Civil Law
- U.P. Industrial Area
Development
Act,
1976-Petitioners
applied for flat under the scheme of
Greater Noida Industrial Development
Authority-The Authority failed to handover
the
flat
within
stipulated
periodPetitioners asked for refund of money-
allotment was subject to cancellation and
the entire deposited money was to be
forfeited by GNIDA with penal interest at
the rate of 15% on delayed payment as
per conditions specified in brochure-
GNIDA is required to pay the same with
interest at the rate of 15% per annum
compoundable quarterly.(Para 1 to 18)
The petition is partly allowed. (E-6)

List of Cases cited:

Vinod Kumar Gautam & ors. Vs St. of U.P. & 3
ors. Writ C No. 33847 of 2019

(Delivered by Hon'ble Pritinker Diwaker, J.
&
Hon'ble Ashutosh Srivastava, J.)

1. All the above referred writ petitions
involve identical questions of law and facts.
The Writ Petition (C) No. 2255 of 2021 is
being treated as the leading writ petition
and the facts pertaining to the same is being
considered for deciding the controversy
involved.

2. Heard Shri Desh Ratan Chaudhary,
learned counsel for the petitioners, Shri
Ramendra Pratap Singh, learned counsel
representing the respondent Nos. 2, 3 and 4
and
the
learned
Standing
Counsel
representing the respondent No. 1. Learned
counsel for the parties agree that pleadings
have been exchanged and the writ petitions
itself may be finally decided. Accordingly,
we proceed to finally decide the aforesaid
writ petitions.

3. The writ petition has been filed
praying for the issuance of writ of
mandamus commanding the Greater Noida
Industrial Development Authority to refund
the
entire
money
deposited
by
the
petitioners towards the alleged allotted flats
including
registration
fee
and
other
expenses borne by the petitioners such as
fee / stamp for execution of lease
deeds/agreement etc., along with 15%
compound interest on quarterly basis. A
further prayer to quash the impugned
communication
/
office
order
dated
14.8.2019 and communication / office
order dated 17.9.2019 issued by the
respondent No. 3- Addl. Chief Executive
Officer,
Greater
Noida,
Industrial
Development Authority, District Gautam
Budh Nagar (Annexure Nos. 4 & 8 to the
writ petition) has also been made.