# Ram Sukh & Ors v. Dy. Director of Consolidation, Sultanpur & Ors

- **Citation:** (2024) 5 ILRA 2123
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-15
- **Case number:** Writ-B No. 518 of 2024
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sukh-ors-v-dy-director-of-consolidation-sultanpur-ors-52050
- **Pages:** 10

## Headnote

C.S.C., Vijai Shankar Tripathi, Vijay Bhan
Pandey

A.
Consolidation
Proceedings
-
U.P.
Consolidation of Holdings Act, 1953 -
Sections 9A(2) & 52 - U.P. Consolidation
of Holdings Rules, 1954 - Rule 109A(1) -
An authority, while exercising its power
under Rule 109A(1), is not empowered to
amend or modify the order passed by the
Consolidation Officer at the stage of
deciding objections under Section 9A(2) of
the Act, 1953 - Correction of Records -
Powers of Authorities Post-Denotification
under Section 52 - Correction in the order
passed under Section 9A(2) is permissible
(Para 33)
2124 INDIAN LAW REPORTS ALLAHABAD SERIES
B. After partaal (survey), Form C.H. 4 was
prepared, followed by the issuance of
Parcha No. 5 to the tenure holders.
Respondent Nos. 8 and 9 filed objections
u/s 9A(2) of C.H. Act, 1953, challenging
the inclusion of the petitioners' names
along with Respondent Nos. 3 to 7 in the
revenue records (Khatauni). Objections
were allowed by Consolidation Officer on
26.12.2012,
and
the
names
of
the
petitioners and Respondent Nos. 3 to 7
were deleted. Order became final as no
recall, appeal, or revision was filed.
Subsequently, petitioners' names were readded through an order issued under Rule
109A(1) of the U.P. Consolidation of
Holdings
Rules,
1954,
during
the
execution
of
the
earlier
order
of
26.12.2012 - Held - Court rejected
petitioners' argument that following the
de-notification
of
consolidation
proceedings
u/s
52,
the
authorities
become functus officio and held that the
authorities acted within their jurisdiction
to correct an error. Only error was
rectified in pursuance of the order dated
26.12.2012 and it was a continuation of
the
proceedings
and
not
a
fresh
proceedings. (Para 33, 34)

Dismissed. (E-5)

List of Cases cited:

## Text

5 All. Ram Sukh & Ors. Vs. Dy. Director of Consolidation, Sultanpur & Ors.
2123

43. If we take recourse to internal aids
to construction of the charging Section then
'Sub-heading' being an internal aid, can be
validly referred to while determining the
true purport of the words 'opportunity of
hearing'. Sub-heading of Section 75 clearly
states that it describes the 'General
Provisions relating to Determining of Tax';
then most certainly Section 75 deals with
all kinds of hearings for determining tax,
both at the first instance and also on
remand. Also sub-Section (4) is followed
by sub-Section (5), which requires an
officer to adjourn a hearing on the request
of the person chargeable to Tax, in case
sufficient cause is shown by such person
after
recording
reasons
for
such
adjournment in writing. Such words as are
used for granting more time to the assessee
and adjourning the hearing can only be
interpreted to mean giving "personal"
hearing. Adjournment is granted in cases
where hearing is continuing. It cannot be
said to relate to giving time extensions for
giving written reply to the show cause
notice.

44. Taking into account the settled
principles of interpretation of Statutes, (a)
all Sections of a Statue need to be read
together, (b) no words, Section in a Statute
can be rendered otiose, (c) any ambiguity in
a charging Section must be read in favour
of the assessee, (d) a casus omissus can be
supplied if the Court, having an overall
view of the scheme of the Statute is
convinced that the legislature did intend a
certain manner of conducting predecisional
hearing but draftsman failed to add the
necessary words to make it plain and
beyond doubt; we are of the considered
opinion that word "personal" can easily be
construed to have been intended to be
added but has been left out erroneously.
We, therefore, are in respectful agreement
with the three Coordinate Bench decisions
cited at the Bar by learned counsel for the
petitioner.

45. The Writ Petition is allowed and
the orders dated 19.02.2024 and 27.04.2024
are set aside. The matter is remitted back to
the proper officer to provide opportunity of
personal hearing to the petitioner and then
to pass a fresh order in accordance with
statutory provisions.
----------
(2024) 5 ILRA 2123
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.05.2024

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ-B No. 518 of 2024

Ram Sukh & Ors. ...Petitioners
Versus
Dy. Director of Consolidation, Sultanpur &
Ors. ...Respondents

Counsel for the Petitioners:
Mata Prasad Yadav, Shiva Shashank

Counsel for the Respondents:
C.S.C., Vijai Shankar Tripathi, Vijay Bhan
Pandey

A.
Consolidation
Proceedings
-
U.P.
Consolidation of Holdings Act, 1953 -
Sections 9A(2) & 52 - U.P. Consolidation
of Holdings Rules, 1954 - Rule 109A(1) -
An authority, while exercising its power
under Rule 109A(1), is not empowered to
amend or modify the order passed by the
Consolidation Officer at the stage of
deciding objections under Section 9A(2) of
the Act, 1953 - Correction of Records -
Powers of Authorities Post-Denotification
under Section 52 - Correction in the order
passed under Section 9A(2) is permissible
(Para 33)
2124 INDIAN LAW REPORTS ALLAHABAD SERIES
B. After partaal (survey), Form C.H. 4 was
prepared, followed by the issuance of
Parcha No. 5 to the tenure holders.
Respondent Nos. 8 and 9 filed objections
u/s 9A(2) of C.H. Act, 1953, challenging
the inclusion of the petitioners' names
along with Respondent Nos. 3 to 7 in the
revenue records (Khatauni). Objections
were allowed by Consolidation Officer on
26.12.2012,
and
the
names
of
the
petitioners and Respondent Nos. 3 to 7
were deleted. Order became final as no
recall, appeal, or revision was filed.
Subsequently, petitioners' names were readded through an order issued under Rule
109A(1) of the U.P. Consolidation of
Holdings
Rules,
1954,
during
the
execution
of
the
earlier
order
of
26.12.2012 - Held - Court rejected
petitioners' argument that following the
de-notification
of
consolidation
proceedings
u/s
52,
the
authorities
become functus officio and held that the
authorities acted within their jurisdiction
to correct an error. Only error was
rectified in pursuance of the order dated
26.12.2012 and it was a continuation of
the
proceedings
and
not
a
fresh
proceedings. (Para 33, 34)

Dismissed. (E-5)

List of Cases cited:

1. Jodhey Vs State, reported as AIR 1952 All
788

2. Gadde Venkateswara Rao Vs Govt. of A.P.;
AIR 1966 SC 828

3. Commissioner of Income Tax, Madras & ors..
Vs Vinod Kumar Didwania & ors. AIR 1987 SC
1260

4. Mohammad Swalleh Vs Third Additonal
District Judge, Meerut; (1988) 1 SCC 40

5. Shangrila Food Products Ltd. Vs LIC, (1996)
5 SCC 54

6. Roshan Deen Vs Preeti Lal; (2002) 1 SCC
100

7. Ramesh Chandra Sankla & ors. Vs Vikram
Cement & ors. (2008) 14 SCC 58

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard learned counsel for petitioner
as well as Shri Hemant Kumar Pandey,
learned State Counsel.

2. The present writ petition has been
preferred for quashing of the impugned
revisional order dated 12.04.2024 passed
by respondent no. 1, Deputy Director of
Consolidation and impugned appellate
order
dated
04.03.2024
passed
by
respondent no. 2 i.e.Settlement Officer
Consolidation, District Sultanpur.

3. The learned counsel for the
respondent nos. 8 and 9 has stated that it
would not be necessary to file counter
affidavit and the matter may be heard at this
stage itself.

4. Learned counsel for petitioner has
submitted that the dispute is with regard to
Gata No. 2774 (new number) and the old
number was Gata No. 1652, Area- 2 Biswa.
The petitioners and respondents were cotenant on the above mentioned gata
number.

5. It is further submitted that initially
Ram Kalap and Raj Nath Singh, son of
Sahdev, i.e. respondent nos. 8 and 9 were
the co-tenant of 1 Biswa and on another 1
Biswa, the ancestors of the petitioners
namely late Urai and late Ram Kishan
along with their brother Bhagirathi i.e.
fathers of respondent nos. 3, 4 and 5.

6. It is further submitted that the
names of the petitioners along with the
family members of late Sahdev were
entered in the Khatauni as co-tenants on the
5 All. Ram Sukh & Ors. Vs. Dy. Director of Consolidation, Sultanpur & Ors.
2125
Gata No. 2774 and the names of the cotenants were intact at the time of
consolidation operations.

7. It is further submitted that the
names of the ancestors of petitioners and
respondent nos. 3 to 7 were entered in Form
C.H- 45, the consolidation proceedings
were finalised and notification under
Section 52 of the Consolidation and
Holdings Act, 1953 (hereinafter referred as
Act, 1953) was published/notified.

8. It is further submitted that after the
denotification
under
Section
52,
an
application was preferred by respondent no.
8 Ram Kalap before the Deputy Director of
Consolidation that the proceedings have
been
finalized
without
deciding
the
objections preferred by respondent no. 8
against Form CH-4. The said application
preferred by respondent no. 8 was rejected
by order dated 22.05.2007. Within four
days of rejection of the said application, a
recall
application
was
preferred
on
26.05.2007 by respondent no. 8, the same
was allowed by order dated 16.06.2008 a
reference was made and referred to the
Consolidation Officer to decide objections
against
Form
C.H.-4
preferred
by
respondent no. 8

9. Thereafter, the proceedings had
started afresh with a reference to the
Consolidation Officer to a limited extent to
consider the objections filed against Form
C.H-4 of Ram Kalap, and the Consolidation
Officer decided the matter to the limited
extent of reference i.e the Consolidation
Officer had decided the matter and has
allowed the application by order dated
20.09.2021 and has enhanced the area from
1 Biswa to 2 Biswa as that was the only
objection
against
Form
C.H.-4
by
respondent no. 8. Against which respondent
no. 8 alone had preferred an appeal before
the
Settlement
Officer
Consolidation
disputing about the entry of the name of the
petitioners along with respondent nos. 3 to
7. The Settlement Officer Consolidation
had allowed the appeal by order dated
04.03.2024 and had given a finding that the
father of respondent nos. 3 to 5 i.e. late
Bhagirathi had executed a sale deed in
favour of widow of Sahdev in the year 1987
of his share, so his name has wrongly been
entered in Form C.H.-45.

10. Against the said order a revision
was preferred by petitioner no. 5, Smt. Sita,
wife of Maharajdeen, the son of late Ram
Kishan and others which was also rejected
by impugned order dated 12.04.2024.

11. The Appellate Authority as well
as the Revisional Authority had exceeded
their jurisdiction by deciding the matter
relating to the title/rights of the petitioner
along with respondent nos. 3 to 7.

12. On the other hand, Sri V.S.
Tripathi, learned counsel for the caveator
has filed his Vakalatnama on behalf of
respondent no. 9 also, which is taken on
record
and
has
submitted
that
the
submission
of
learned
counsel
for
petitioners is not tenable against C.H.
Form- 4, the objections were filed, which
was decided by the Consolidation Officer
by its order dated 26.12.12 whereby only
the names of respondent no. 8 and 9 have
been entered. The objections were filed
with regard to correction in area of land
from one biswa to two biswa, but no such
document in support of the submission was
enclosed.

13. It is further submitted that once
Bhagirathi had sold his share to the widow
of Sahdev i.e. the grandmother of the
2126 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent nos. 8 & 9, then he has no share
in the said land, particularly, when the said
fact is neither denied or disputed by the
petitioners. The names of the petitioners or
their ancestors were wrongly entered in
Form C.H. 45.

14. It is further submitted that
objections were decided by order dated
26.12.2012 by the Consolidation Officer in
favour of respondent nos.8 and 9 and
deleted the names of petitioners and
respondent nos. 3 to 7 and their names were
entered in the revenue record in compliance
of the order passed under Rule 109 A(1) of
Consolidation and Holding Rules, 1954
(hereinafter referred as Rules, 1954) at the
time of taking decision on the objection of
respondent no. 8 and 9 under Section
9A(2). The names of the petitioners and
respondent nos. 3 to 7 were added which is
illegal for the reason that the names of the
petitioners and respondent nos. 3 to 7 was
not on the record or were deleted by
allowing the objections of respondent nos.
8 under Section 9A(2) of the Act, 1953 and
the executing Court or the authority who is
empowered to implement the order under
Rule 109A(1) of Rules, 1954 again added
names of the petitioners along with
respondent nos. 3 to 7. So this is only the
correction which was made by these orders
and it cannot be said that it is a new
proceedings initiated by the Authorities
after the notification of Section 52 of Act,
1953. The petitioners and respondent no. 3
to 7 had never filed any recall, appeal or
revision and the order dated 26.12.2012 has
attained finality.

15. On the other hand, learned
Standing Counsel has submitted that after
publication of Form C.H. 4, Parcha no. 5 is
distributed to every tenure holders and if
they are aggrieved by the same, they could
raise
their
objection
under
Section
9A(1)/9A(2) of the Act, 1953 and after
deciding the objections, the Consolidation
proceedings initiated further and at every
stage, there are appeals and the revisions
and after that Form C.H. 45 is to be
prepared which is final and thereafter
publication is made under Section 52 of the
Act, for de-notification of the consolidation
operations.

16. After hearing learned counsel for
the parties and going through the record of
the case, it is clear that the dispute is with
regard to the old Gata no. 2774 area 2 biswa
(now Gata No. 1652). The names of
ancestors of petitioners and respondent nos.
3 to 7 along with respondent nos. 8 & 9 in
the khatauni and the names were there at the
time of consolidation in the basic year
khatauni. After the partaal, Form C.H. 4
was prepared and thereafter parcha no. 5
would have been served upon the tenure
holders. The respondent no. 8 & 9 had filed
their objection under Section 9A(2) of the
Act, 1953, regarding the claim of the
petitioners in the said land against the entry
of names of the petitioners along with
respondent nos. 3 to 7 in the revenue
records/khatauni. The said objections
preferred by the respondent no. 8 was
allowed by the order dated 26.12.2012.

17. On being asked from the learned
counsel for petitioner, the decision in
objection preferred under Section 9A(2) of
the Act, 1953 would not amount to deciding
the objection against Form C.H.-4, he has
very fairly replied that it amounts that the
objection against Form C.H.-4 is decided.

18. The second query put by this
Court from learned counsel for petitioner
whether against the order dated 26.12.2012
passed under Section 9A(2) any appeal was
5 All. Ram Sukh & Ors. Vs. Dy. Director of Consolidation, Sultanpur & Ors.
2127
preferred by petitioner under Section 11 of
the Act, 1953, he has very fairly submitted
that to the best of his knowledge and as per
the record, no appeal appears to be filed by
the petitioners against the said order.

19. The names of the petitioners along
with respondent no. 3 to 7 was entered in
the Khatauni in compliance of the order
passed under Rule 109A(1) of the Rules,
1954, which empowers the Assistant
Collector/Incharge of the Sub-Division, the
Tehsildar,
the
Naib
Tehsildar,
the
Supervisor and the Lekhpal of the area to
which the case relates shall, respectively,
perform the functions and discharge the
duties of the Settlement Officer of the
Consolidation for the purposes of giving
effect to the orders aforesaid, so the
authorities cannot either modify or amend
the orders passed by the Consolidation
Officer dated 26.12.2012.

20. On being asked specific query
from learned counsel for the petitioner
whether while deciding the objection under
Section 9A(2) of the Act, 1953 by the
Consolidation Officer, the names of the
petitioners along with respondent nos.3 to
7 were also allowed to be continued in the
record or whether the names of the
petitioners along with respondent nos. 3
to 7 were entered in Form- C.H.45 in
pursuance of the order passed under Rule
109 A(1) of the Consolidation and
holding Rules, 1954. He has submitted
that from the perusal of the record it
appears that the names of the petitioners
along with respondent nos.3 to 7 were
entered in form C.H.45 by order passed
under Rule 109A (1) of Rules, 1954 and
not disputed the fact that the names of the
petitioners along with respondent nos. 3
to 7 were not in the order dated
26.12.2012 passed by the Consolidation
Officer as against the objections preferred
by respondent no.8.

21. From the above, it cannot be said
that orders have been passed without
jurisdiction after the notification under
Section 52 of the Act, 1953 for the reason
it is the continuation of the proceedings
even after the notification under Section
52 of the Act, 1953. It is also noticeable
that once the name of the petitioners
along with respondent nos. 3 to 7 were
deleted by order dated 26.12.2012 by the
Consolidation Officer while deciding the
matter under Section 9A(2) and against
which
the
petitioners
along
with
respondent nos.3 to 7 had never ever
preferred any appeal or revision now
again come with a case that after Section
52, their names cannot be deleted when it
is admitted by the learned counsel for the
petitioners
that
the
names
of
the
petitioners and respondent nos. 3 and 7
were entered in compliance of the order
passed under Rule 109A(1) and not in
pursuance of the order dated 26.12.2012.
Apart from that the father of respondent
nos. 3 to 5 had already sold the complete
share in favour of grand mother of
respondent no.8 and the said fact is
admitted in paragraph no. 23 of the Writ
Petition.

22. Against the said appellate order,
the revision was preferred and the
Revisional court affirmed the appellate
order and rejected the revision preferred by
the petitioners.

23. The tenure holders got an
opportunity
in
the
Consolidation
proceedings to make objections at various
stages and with an availability of remedy of
appeal and revision almost at every stage,
firstly at the stage of Form C.H. 4, i.e.
2128 INDIAN LAW REPORTS ALLAHABAD SERIES
objection under Section 9A, then appeal
under Section 11 and Revision under
Section 48. Thereafter, at the second stage
when the provisional consolidation scheme
is prepared by the Assistant Consolidation
Officer, under Section 19 of the Act, 1953.
Then there is a third stage when the
confirmation
of
the
provisional
consolidation scheme and issuance of the
allotment orders under Section 23, the
tenure holder has a right to file objections
under Section 20 of the Act, 1953, but as
per the admitted case of the respondent no.
8 and 9, they had never ever challenged the
order passed under Section 9A(2) dated
26.12.2012 nor filed any revision or appeal
as per the stages mentioned above.

24. In given circumstances, the
question before this Court is as to whether
in
exercise
of
its
extraordinary
discretionary jurisdiction this court should
interfere or not. The law in this regard is
very well settled. In a catena of judgments,
both this Court and Supreme Court have
emphasised
that
while
exercising
discretionary jurisdiction under Article
226, the High Court must ensure that
substantial justice is done, equity be upheld
and injustice is eliminated.

25. In Jodhey vs State, reported as
AIR 1952 All 788, this Court considered
the discretionary and equitable jurisdiction
of the High Court and the manner in which
the same ought to be exercised. Relevant
portion of the same reads:-

"There are no limits, fetters or
restrictions placed on this power of
superintendence in this Clause and the
purpose of this Article seems to be to make
the High Court the custodian of all justice
within
the
territorial
limits
of
its
jurisdiction and to arm it with a weapon
that could be wielded for the purpose of
seeing that justice is meted out fairly and
properly by the bodies mentioned therein.
"(emphasis supplied)"

26. In Gadde Venkateswara Rao v.
Govt. of A.P.; AIR 1966 SC 828, a three
judges Bench of the Supreme Court
affirmed the judgment of the Andhra
Pradesh High Court where it refused to
interfere into a matter on merit even when
the appellant alleged violation of principles
of natural justice. The Supreme Court
observed that if the impugned order passed
by the Government would have been set
aside by the High Court, it would have
restored an illegal order. Paragraph 19 of
the judgment reads:-

"19. The result of the discussion
may be stated thus: The Primary Health
Centre was not permanently located at
Dharmajigudem. The representatives of the
said village did not comply with the
necessary conditions for such location. The
Panchayat Samithi finally cancelled its
earlier resolutions which they were entitled
to do and passed a resolution for locating
the Primary Health Centre permanently at
Lingopalem. Both the orders of the
Government, namely, the order dated
March 7, 1962, and that dated April 18,
1963, were not legally passed: the former,
because it was made without giving notice
to the Panchayat Samithi, and the latter,
because the Government had no power
under Section 72 of the Act to review an
order made under Section 62 of the Act and
also because it did not give notice to the
representatives of Dharmajigudem village.
In those circumstances, was it a case for the
High Court to interfere in its discretion and
quash the order of the Government dated
April 18, 1963? If the High Court had
quashed the said order, it would have
5 All. Ram Sukh & Ors. Vs. Dy. Director of Consolidation, Sultanpur & Ors.
2129
restored an illegal order it would have
given the Health Centre to a village
contrary to the valid resolutions passed by
the Panchayat Samithi. The High Court,
therefore, in our view, rightly refused to
exercise its extraordinary discretionary
power in the circumstances of the case."

27. In Commissioner of Income Tax,
Madras and Ors. vs. Vinod Kumar
Didwania and Ors.; AIR 1987 SC 1260,
Supreme Court deprecated the conduct of
the private respondent who first got the
interim injunction and then withdrew the
petition. It was held that the respondent has
abused the process of law and therefore he
could not be allowed to retain undue
benefits received by him under the garb of
interim injunction. Relevant portion of
paragraph 3 of the said judgment is quoted
hereafter:-

"3. The learned Attorney General
appearing on behalf of the Deputy Director
of Inspection submitted before us that the
amount representing the value of the goods
removed from the three godowns should be
restituted by the 1st Respondent since the
goods were removed by him under an ex
parte order of injunction obtained from the
High Court of Calcutta in the Writ Petition
filed by him and the nefarious purpose of
filing the Writ Petition having been
accomplished by removal of the goods, the
writ petition was withdrawn. There is great
force in his submission of the learned
Attorney General. There is no doubt that
the 1st Respondent has abused the process
of the Court for securing removal of the
goods from the three godowns and he
cannot
be
allowed
to
retain
that
advantage....."

28. In Mohammad Swalleh v. Third
Additonal District Judge, Meerut; (1988)
1 SCC 40 the Supreme Court dismissed an
appeal against an order passed by the High
Court wherein the High Court refused to
interfere with the order of the District Court
which had no jurisdiction to entertain an
appeal from the Prescribed Authority under
the scheme of the Act on the ground that
setting aside District Court's order would
mean restoring the erroneous order of the
Prescribed Authority. Paragraph 7 of the
above referred judgment of the Supreme
Court reads:-

"7. It was contended before the
High Court that no appeal lay from the
decision of the prescribed authority to the
District Judge. The High Court accepted
this contention. The High Court finally held
that though the appeal laid (sic no appeal
lay) before the District Judge, the order of
the prescribed authority was invalid and
was rightly set aside by the District Judge.
On that ground the High Court declined to
interfere with the order of the learned
District Judge. It is true that there has been
some technical breach because if there is
no appeal maintainable before the learned
District Judge, in the appeal before the
learned District Judge, the same could not
be set aside. But the High Court was
exercising its jurisdiction under Article 226
of the Constitution. The High Court had
come to the conclusion that the order of the
prescribed authority was invalid and
improper. The High Court itself could have
set it aside. Therefore in the facts and
circumstances of the case justice has been
done though as mentioned hereinbefore,
technically the appellant had a point that
the order of the District Judge was illegal
and improper. If we reiterate the order of
the High Court as it is setting aside the
order of the prescribed authority in
exercise of the jurisdiction under Article
226 of the Constitution then no exception
2130 INDIAN LAW REPORTS ALLAHABAD SERIES
can be taken. As mentioned hereinbefore,
justice has been done and as the improper
order of the prescribed authority has been
set aside, no objection can be taken."
(emphasis supplied)

29. In Shangrila Food Products Ltd.
v. LIC, (1996) 5 SCC 54 the Supreme Court
reiterated that while exercising jurisdiction
under Article 226 and 227 of the
Constitution, a duty is casted upon the High
Courts to see to it that equity is upheld.
High Court must ensure that any undue
advantage gained by a party prior to
invoking discretionary jurisdiction of the
High Court ought to be taken into account
before granting it any relief. Relevant
paragraph 11 of the same reads:-

"11. It is well settled that the High
Court in exercise of its jurisdiction under
Article 226 of the Constitution can take
cognisance of the entire facts and
circumstances of the case and pass
appropriate orders to give the parties
complete and substantial justice. This
jurisdiction of the High Court, being
extraordinary, is normally exercisable
keeping in mind the principles of equity.
One of the ends of the equity is to promote
honesty and fair play. If there be any unfair
advantage gained by a party priorly, before
invoking the jurisdiction of the High Court,
the Court can take into account the unfair
advantage gained and can require the party
to shed the unfair gain before granting
relief. What precisely has been done by the
learned Single Judge, is clear from the
above emphasised words which may be
reread with advantage. The question of
claim to damages and their ascertainment
would only arise in the event of the Life
Insurance
Corporation,
respondent,
succeeding to prove that the appellant
Company was an unlawful sub-tenant and
therefore in unauthorised occupation of
public premises. If the findings were to go
in favour of the appellant Company and it
is proved to be a lawful sub- tenant and
hence not an unauthorised occupant, the
direction to adjudge the claim for damages
would be rendered sterile and otiose. It is
only in the event of the appellant Company
being held to be an unlawful sub- tenant
and hence an unauthorised occupant that
the
claim
for
damages
would
be
determinable. We see therefore no fault in
the High Court adopting such course in
order to balance the equities between the
contestants especially when it otherwise
had power of superintendence under
Article 227 of the Constitution in addition.
We cannot be oblivious to the fact that when
the occupation of the premises in question
was a factor in continuation of the liability
to pay for the use and occupation thereof,
be it in the form of rent or damages, was
also a continuing factor. The cause of
justice, as viewed by the High Court, did
clearly warrant that both these questions be
viewed interdependently. For those who
seek equity must bow to equity." (emphasis
supplied)"

30. In Roshan Deen vs. Preeti Lal;
(2002) 1 SCC 100, the Supreme Court
while setting aside an order passed by the
High Court observed that the High Courts
while exercising power of superintendence
under Article 226 and 227 should ensure
that such exercise must ensure that justice
is done and at the same time injustice is
eliminated. Paragraph 12 of the same
reads:-

"12. We are greatly disturbed by
the insensitivity reflected in the impugned
judgment rendered by the learned Single
Judge in a case where judicial mind would
be tempted to utilize all possible legal
5 All. Ram Sukh & Ors. Vs. Dy. Director of Consolidation, Sultanpur & Ors.
2131
measures to impart justice to a man
mutilated so outrageously by his cruel
destiny. The High Court non-suited him in
exercise of a supervisory and extraordinary
jurisdiction envisaged under Article 227 of
the Constitution. Time and again this Court
has reminded that the power conferred on
the High Court under Articles 226 and 227
of the Constitution is to advance justice and
not to thwart it (vide State of U.P. v. District
Judge, Unnao [(1984) 2 SCC 673: AIR
1984 SC 1401]). The very purpose of such
constitutional powers being conferred on
the High Courts is that no man should be
subjected to injustice by violating the law.
The lookout of the High Court is, therefore,
not merely to pick out any error of law
through an academic angle but to see
whether injustice has resulted on account
of any erroneous interpretation of law. If
justice became the by-product of an
erroneous view of law the High Court is not
expected to erase such justice in the name
of correcting the error of law,"

31. A Division Bench of the Supreme
Court in the case of Ramesh Chandra
Sankla and Others vs. Vikram Cement and
Others and other connected matters,
reported as (2008) 14 SCC 58 has
considered, affirmed, and reiterated all the
aforesaid judgments and held in paragraphs
98 that:-

"98. From the above cases, it
clearly transpires that powers under
Articles 226 and 227 are discretionary and
equitable and are required to be exercised
in the larger interest of justice. While
granting relief in favour of the applicant,
the Court must take into account balancing
interests and equities. It can mould relief
considering the facts of the case. It can pass
an appropriate order which justice may
demand and equities may project. As
observed by this Court in Shiv Shankar Dal
Mills v. State of Haryana, (1980) 1 SCR
1170, Courts of equity should go much
further both to give and refuse relief in
furtherance of public interest. Granting or
withholding of relief may properly be
dependent upon considerations of justice,
equity and good conscience."(emphasis
supplied)"

32. The law repeatedly settled by the
Supreme Court is that the High Court
should
exercise
its
discretionary
jurisdiction in such a manner which would
advance the ends of justice and uproot
injustice.
It
should
exercise
power
conferred under Article 226 and 227 of the
Constitution of India in a manner that
provides complete and substantial justice to
parties. The Supreme Court in Shangrila
(supra) has held that "One of the ends of the
equity is to promote honesty and fair play.
If there be any unfair advantage gained by
a party, priorly, before invoking the
jurisdiction of the High Court, the Court
can take into account the unfair advantage
gained and can require the party to shed the
unfair gain before granting relief." From the
law settled by the Supreme Court it is clear
that while exercising power under Article
226 and 227 of Constitution of India, the
Court must give and refuse relief.

33. As such, in the present case, as per
the submission of learned counsel for
petitioner that after the denotification of
Consolidation proceedings by issuing the
notification under Section 52 of the Act,
1953, the change of entries is not
permissible as the authorities have become
functus officio, is not tenable in the light of
the facts of this case, reason being, in the
consolidation
proceedings,
the
Consolidation Officer while deciding the
objections had entered the name of
2132 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no. 8 and 9 only and at the stage
of Form C.H.-45, the names of the
petitioners were added by the order dated
02.02.2015 passed in pursuance of order
passed under Rule 109A(1) of the Rules,
1954, at the time when respondent no. 8
moved
an
application
for
implementation/execution of the order
dated 26.12.12. The authority while
exercising its power under Rule 109A(1) is
not empowered either to amend or modify
the order passed by the Consolidation
Officer at the stage of deciding the
objections under Section 9A(2) of the Act,
1953. It cannot be said that it is a fresh
proceedings initiated by the respondent no.
8 for deletion of the names of the petitioners
and respondent nos. 3 to 7 or their ancestors
from the revenue records, rather it is a
correction in pursuance of the order dated
26.12.12 passed during the consolidation
proceedings. Only error has been rectified
in pursuance of the order dated 26.12.2012,
so it is a continuation of the proceedings
and not a fresh proceedings, particularly
when it is an admitted case of the
petitioners that their names were not in the
order dated 26.12.2012 and it was added in
Form C.H. 45 in compliance of the order
passed under Rule 109A(1) of the Rules,
1954.

34. In view of the facts, circumstances
and discussion made herein above, the
orders passed by the Appellate Authority
and the Revisional Authority does not call
for any interference. The writ petition is
devoid of merit and is liable to be
dismissed.

35. Accordingly, the present writ
petition is hereby dismissed.
----------
(2024) 5 ILRA 2132
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 2751 of 1980

Indra Pal ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Shashi Kant Agrawal, Sri Pavan Kishore,
Sri Piyush Kishore Srivastava, Sri Rajiv
Lochan Shukla

Counsel for the Respondent:
A.G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 154(1), 161, 162, 162(1)
& 313 - Indian Penal Code, 1860 - Sections
33, 34 & 302 - Appeal - against conviction &
sentence - FIR -offence of murder due to illicit
relation - Life imprisonment - separate two
appeals by both accused - one appeal was
abated due to death of one of co-accused -
present was co-accused's appeal - Examination
of evidences - court finds that, testimony of sole
eyewitness
(PW2)
contains
material
contradiction and improvements and manifestly
clear that he did no see the incident as such it
cannot be relied upon - PW-2 also could not
identify the accused persons as there was dark
- prosecution has filed to prove the motive
behind the commission of the offence - no
independent witness was examined, even the
overt act attributed to appellant also becomes
doubtful in the light of medical evidence - the
I.O. neither send the seized pellets & bloodsoaked-soil to the F.S.L. for examination nor
recovered the weapon of offence which could
have strengthened the version of PWs - Held, to
assess evidence as of sterling quality, the trial
court should consider various factors, including
consistency,
corroboration,
relevancy,
and
authenticity - and it is the responsibility not only
of the investigating agency but also of the courts