# Prasad v. Man Mohan and

- **Citation:** (2013) 1 ILRA 96
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-01-09
- **Case number:** Civil Misc. Writ Petition No. 33099 of 2012
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prasad-v-man-mohan-and-42533
- **Pages:** 5

## Headnote

U.P. Consolidation of Holding Act 1953
Section 19-allotment of Chak whether
the provisions of 19 are mandatory in
nature or directory?-held-the word used
(as far as possible) itself denote no
embargo in allotment of urban chak-as
such is directory.

Held: Para-19

In view of the various decisions of the
apex Court, it is clear that while holding
a particular statute as mandatory or
directory, it would be necessary to look
into the intention of the Legislature and
the language used in the Statute. Here
the section itself mentions that as far as
possible compact area be allotted at the
original holding, meaning thereby, it do
not put any embargo that in case the
allotment is not made at the original
holding, it will render the allotment
illegal. Therefore, I am of the considered
opinion that the provisions contained
under sub section (e) of section 19 of the
Act is directory in nature not mandatory.
Case Law discussed:
2005 (99) RD 271; 2007 (102) RD 171; AIR
1952 SC 181; AIR 1961 SC 751; AIR 1965 SC
895; 1975 SC 2190; AIR 1980 SC 303; (1999)
1 SCC 354; AIR 2002 SC 2031; (2003) 3 SCC
433; AIR 2003 SC 511; AIR 2004 SC 2036
2007 (102) RD 171

## Text

96 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

41. Let the writ petitions be listed
before the learned Single Judge with our
answers as given above.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 33099 of 2012

Man Mohan

 ...Petitioner
Versus
D.D.C. And Others
 ...Respondents

Counsel for the Petitioner:
Sri Shamimul Hasnain
Sri Dhirendra Kumar Srivastava

Counsel for the Respondents:
C.S.C.
Sri Krishan Ji Khare

U.P. Consolidation of Holding Act 1953
Section 19-allotment of Chak whether
the provisions of 19 are mandatory in
nature or directory?-held-the word used
(as far as possible) itself denote no
embargo in allotment of urban chak-as
such is directory.

Held: Para-19

In view of the various decisions of the
apex Court, it is clear that while holding
a particular statute as mandatory or
directory, it would be necessary to look
into the intention of the Legislature and
the language used in the Statute. Here
the section itself mentions that as far as
possible compact area be allotted at the
original holding, meaning thereby, it do
not put any embargo that in case the
allotment is not made at the original
holding, it will render the allotment
illegal. Therefore, I am of the considered
opinion that the provisions contained
under sub section (e) of section 19 of the
Act is directory in nature not mandatory.
Case Law discussed:
2005 (99) RD 271; 2007 (102) RD 171; AIR
1952 SC 181; AIR 1961 SC 751; AIR 1965 SC
895; 1975 SC 2190; AIR 1980 SC 303; (1999)
1 SCC 354; AIR 2002 SC 2031; (2003) 3 SCC
433; AIR 2003 SC 511; AIR 2004 SC 2036
2007 (102) RD 171

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

1. Heard Sri Shamimul Hasnain,
learned counsel for the petitioner, Sri
Krishan Ji Khare, learned counsel for
respondent nos. 3 and 4 and learned
Standing Counsel.

2. The affidavits have been
exchanged. With the consent of learned
counsel for the parties, the writ petition
is taken up for final disposal.

3. Through this writ petition, the
petitioner has prayed for issuing a writ of
certiorari quashing the judgment and
order dated 26.4.2012 passed by the
Deputy Director of Consolidation (in
short, 'DDC') in revision no. 57/2011-12
(Kamlesh Prasad Vs. Man Mohan and
Others), by which the revision filed by
respondent nos. 3 and 4 has been allowed
and the chak of the petitioner has been
disturbed.

4. While assailing this order, Sri
Hasnain contends that the DDC has erred
in
allowing
the
revision.
In
his
submission, in view of sub section (e) of
section 19 of the U.P. Consolidation of
Holdings Act, 1953 (in short, 'the Act'),
it was incumbent upon the DDC to allot
the chak to the petitioner on his original
holding, whereas in this case a udan chak
has been given to the petitioner and the
petitioner has been dislodged from his
original holding. It is also contended that
the provisions contained in section 19 of
1 All] Man Mohan V. D.D.C. And Others
97
the Act are mandatory in nature,
therefore, non-compliance of that would
render the proceeding of allotment void.

5. Sri Hasnain has placed reliance
upon the judgment of this Court in the
case of Mohd. Nabi and Another Vs.
Deputy Director of Consolidation and
Others 2005(99) RD 271, where the
submission of the petitioner in that case
was that the chak was carved out in
violation of the provisions contained
under section 19 of the Act. This Court
has allowed the writ petition taking note
of the fact that the order was cryptic in
nature and no reason was assigned for
change of chak. Reliance has also been
placed upon decision of this Court in
Fatehchand
Chaturvedi
Vs.
Joint
Director of Consolidation 2007(102)RD
171.

6. Refuting the submissions of
learned counsel for the petitioner, Sri
Khare
submits
that
the
provisions
contained under section 19 of the Act are
not mandatory in nature. He has further
contended that although the udan chak
has been given to the petitioner, but his
area has not been reduced and he has
been allotted chak in the same sector
having facility of egress and ingress in
the chak from two sides, as there are two
chak roads at two sides of the petitioner's
chak, therefore, no infirmity can be
attached with the view taken by the
learned DDC.

7. I have heard learned counsel for
the parties and perused the records.

8. In the counter affidavit, Sri
Khare has annexed a map showing the
spot position, from the perusal of which,
it transpires that the petitioner, who
happens to be chak holder of plot no.
473, was given chak at the western side,
in the middle of the chak of the
respondents. A rejoinder affidavit has
been filed, in which the factum of the
spot position has not been disputed by
the petitioner. What has been disputed is
that the provisions contained under
section 19(e) of the Act are mandatory in
character and the petitioner has been
dislodged from his original holding,
therefore, the order passed by the DDC is
contrary to the provisions contained in
section 19(e) of the Act. The DDC, in his
judgment, has recorded that the chak of
the chak holders of plot nos. 473, 158
and 527 were falling in the midst of the
chak of the respondent nos. 3 and 4, due
to which the shape of his chak was
disturbed and taking note of that he
directed for carving out the chak of the
petitioner at the north-western side,
which is covered by chak road on two
sides,i.e., north and west.

9.

Learned
counsel
for
the
petitioner submitted that the provisions
contained in section 19(e) of the Act are
mandatory and non-observance of that
would render the proceeding vitiated.

10.

For
appreciating
the
controversy, provision contained under
section 19 of the Act would be necessary
to be looked into, which reads as under:

"19 (e) every tenure-holder is, as far
as possible, allotted a compact area at
the place where he holds the largest part
of his holding;

Provided that no tenure-holder may
be allotted more chaks than three, except
with the approval in writing of the
Deputy Director of Consolidation:
98 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Provided
further
that
no
consolidation made shall be invalid for
the reason merely that the number of
chaks allotted to a tenure-holder exceeds
three."

11. From the bare reading of the
aforesaid section, it would transpire that
every tenure-holder, as far as possible, be
allotted a compact area at the place
where he holds the largest part of his
holding, provided that no tenure-holder
may be allotted more chaks than three,
except with the approval in writing of the
Deputy
Director
of
Consolidation;
provided further that no consolidation
made shall be invalid for the reason
merely that the number of chaks allotted
to a tenure-holder exceeds three.

12. Here in the present case, the
petitioner's case falls in the first part of
sub-section (e) of section 19 of the Act
and the proviso are not attracted. There
the words used are "as far as possible,
the compact area at the place where the
tenure-holder has his land, shall be
allotted chak." The language used in the
section is unambiguous and clear. The
allotment of chak at the largest holding is
qualified by the word "as far as
possible." The use of the word "as far as
possible" dilutes the rigor of section,
which requires the allotment of chak at
the largest part of original holding.
Otherwise also, the very purpose of the
Act is to give the compact holding to the
convenience of the tenure-holder.

13. For holding a provision
mandatory or directory, the use of words
in the statute coupled with the intention
of Legislature has to be seen. For
deciding as to whether a particular
provision is mandatory or directory,
there can be no straight jacket formula.
The Supreme Court in the case of
Dattatraya Moreshwar Vs. The State of
Bombay & Ors., AIR 1952 SC 181 has
observed that a law which creates public
duty is directory but if it confers private
rights, it is mandatory. Relevant passage
from this judgment is quoted below:-

"It is well settled that generally
speaking the provisions of the statute
creating public duties are directory and
those conferring private rights are
imperative. When the provision of a
statute relate to the performance of a
public duty and the case is such that to
hold null and void acts done in neglect of
this duty would work serious general
inconvenience or injustice to persons
who have no control over those entrusted
with the duty and at the same time would
not
promote
the
main
object
of
legislature, it has been the practice of the
Courts to hold such provisions to be
directory only the neglect of them not
affecting the validity of the acts done."

14. A Constitution Bench of the
Hon'ble Supreme Court, in State of U.P.
& Ors., Vs. Babu Ram Upadhya, AIR
1961 SC 751, while considering the issue
as to whether a provision contained in a
Statute
is
mandatory
or
directory,
observed as under:-

"For ascertaining the real intention
of the Legislature, the court may
consider, inter alia, the nature and the
design
of
the
statute,
and
the
consequences which would follow from
construing it the one way or the other,
the impact of other provisions whereby
the necessity of complying with the
provisions in question is avoided, the
1 All] Man Mohan V. D.D.C. And Others
99
circumstance, namely, that the statute
provides for a contingency of the noncompliance with the provisions, the fact
that
the
non-compliance
with
the
provisions is or is not visited by some
penalty,
the
serious
or
trivial
consequences that flow therefrom, and,
above all, whether the object of the
legislation will be defeated or furthered."

15. In Raza Buland Sugar Co.
Ltd., Rampur Vs. Municipal Board,
Rampur, AIR 1965 SC 895; and State of
Mysore Vs. V.K. Kangan, AIR 1975 SC
2190, whether a provision is mandatory
or directory, would, in the ultimate
analysis, depend upon the intent of the
law-maker and that has to be gathered
not only from the phraseology of the
provision but also by considering its
nature, its design and the consequence
which would follow from construing it in
one way or the other.

16. In Sharif-Ud-Din Vs. Abdul
Gani Lone, AIR 1980 SC 303, the
Supreme Court, while considering the
provisions of Sub-section (3) of Section
89 of the J&K Representation of People
Act, 1957, held that the difference
between a mandatory and directory rule
is
that
the
former
requires
strict
observance while in the case of latter,
substantial compliance of the rule may
be enough and where the statute provides
that failure to make observance of a
particular rule would lead to a specific
consequence, the provision has to be
construed as mandatory.

17. The Apex Court held as under:-

"In order to find out the true
character of the legislation, the court has
to ascertain the object which the
provision of law in question is to subserve and its design and the context in
which it is enacted. If the object of the
law is required to be defeated by noncompliance with it, it has to be regarded
as mandatory.....Whenever the statute
provides that a particular act is to be
done in a particular manner and also
lays down that the failure to compliance
with the said requirement leads to a
specific
consequence,
it
would
be
difficult to hold that the requirement is
not
mandatory
and
the
specified
consequence should not follow."

18. Similar view has been reiterated
in Dinkar Anna Patil & Anr. Vs. State
of Maharashtra & Ors., (1999) 1 SCC
354; Shashikant Singh Vs. Tarkeshwar
Singh, AIR 2002 SC 2031; Balwant
Singh & Ors., Vs. Anand Kumar
Sharma & Ors., (2003) 3 SCC 433;
Bhavnagar University Vs. Palitana
Sugar Mill Pvt. Ltd. & Ors., AIR 2003
SC 511; and Chandrika Prasad Yadav
Vs. State of Bihar & Ors., AIR 2004 SC
2036).

19. In view of the various decisions
of the apex Court, it is clear that while
holding a particular statute as mandatory
or directory, it would be necessary to
look into the intention of the Legislature
and the language used in the Statute.
Here the section itself mentions that as
far as possible compact area be allotted
at the original holding, meaning thereby,
it do not put any embargo that in case the
allotment is not made at the original
holding, it will render the allotment
illegal. Therefore, I am of the considered
opinion that the provisions contained
under sub section (e) of section 19 of the
Act is directory in nature not mandatory.
100 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

20. It would further appear from the
spot memo and finding recorded by the
DDC, the petitioner's chak was falling in
the midst of chak of respondent nos. 3
and 4, therefore, the petitioner has been
shifted at a corner. It is not the case of
the petitioner that either his area has
been reduced or he has been allotted
chak at a land of excess valuation or
upon a bad quality of land, therefore, the
decision in the Mohd. Nabi (supra) case
is at no help as in that case, the reason
was not recorded while changing the
chak and the order was cryptic. Here in
the present case, valid reason has been
recorded by the DDC in support of his
order.

21. So far as the case of Fateh
Chand Chaturvedi and another Vs.
Joint
Director
of
Consolidation,
Allahabad and Others 2007(102) RD
171 is concerned, in this case the
argument was that the petitioner was
given chak over an area having excess
valuation (land) in the plots which were
situated near the river (nadihar) and in
that context, the Court has inferred with
the matter and quashed such allotment.
This case is also distinguishable on the
facts.

22. In view of the foregoing
discussions, I do not find any illegality in
the judgment and order dated 26.4.2012
passed by the Deputy Director of
Consolidation.

23. The writ petition fails and it is
hereby dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2013

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 47864 of 2000

Mohd. Rais

 ...Petitioner
Versus
State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Ram Lal Singh
Sri Sheo Ram Singh
Sri Shashank Shekhar

Counsel for the Respondents:
C.S.C.
Sri V.K. Singh

Code of Civil Procedure, Order 9 Rule 13application for setting-a-side ex-parte
decree-when the suit decreed ex-parteappeal
dismissed
on merit-held-Trail
Court wrongly entertain-such application
-held-order
without
jurisdictionapplication
seeking
restoration
of
proceeding itself nor maintainable.

Held: Para-9 and 10

From a perusal of the impugned order
and documents on record as well as the
statutory provisions of the Explanation
to Order 9, Rule 13 CPC, it is noticed that
once
the
appeal
preferred
by
the
respondent nos.1 and 4 against the
decree
dated
11.8.1995
had
been
dismissed by the judgment and order
dated
23.4.1998,
the
decree
dated
11.8.1995 had become final between the
parties and, thereafter, no application
seeking recall or restoration of the said
decree was maintainable before the trial
court. Matter had already been thrashed
out upto the stage of appeal.

In
the
circumstances,
the
entire
proceedings seeking restoration of the