# Ramesh Chandra & others v. State of U.P. and others

- **Citation:** (2009) 1 ILRA 210
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-20
- **Case number:** Civil Misc. Writ Petition (PIL) No.47304 of 2005
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-chandra-others-v-state-of-u-p-and-others-41348
- **Pages:** 12

## Headnote

Constitution of India-Art. 226-Publice
Interest
Litigation-challenging
notification-cancellation of notification
bringing the village in question out of
consolidation-none
of
petitioner
disclosed their status as former and
inhabitant of concerned village-held-'No
locus standi'-even otherwise it would be
interference with the functioning of
legislation by the judiciary who is best
judge to consider the actual grievance of
citizen.

Held: Para 22 & 34

The petitioners in my considered view
have no interest or locus standi in the
matter. The writ petition is liable to be
dismissed on the ground of lack of
material
particulars
relating
to
the
interest of the petitioners in the present
dispute. It is not the case of the
petitioners that the inhabitants and
agriculturists of the village in question
are so poor that they cannot approach
the
Court
for
redressal
of
their
grievance, if any. Apparently, the present
litigation is not a bonafide one.

Viewed as above, the preponderance of
judicial opinion is that in such matters
the writ as claimed by the petitioners for
quashing the notification issued under
section 6 of the Act, cannot be issued. It
is not necessary for me to discuss the
other cases referred by the learned
counsel for the parties being besides the
issue involved.
Case law discussed:
1976 RD 35, AIR 1973 Alld. 382, 1959 ALJ
209, 1984 R.D. 110, 2000 R.D. 30, 2001 (3)
A.W.C. 2149, 2004 RD 454, 2006 ACJ 2114,
2007 (1) ADJ 630, 1952 SC 252, AIR 1967 S.C.
1895, 1990 RD 117, 1999 RD 400, 1999 RD

## Text

210 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

summing up the scope of exercise of
jurisdiction under Article 227 laid down
in para 38 (4,5 and 6) which are as
follows:

"38 (4). Supervisory
jurisdiction
under Article 227 of the Constitution is
exercised for keeping the subordinate
courts within the bounds of their
jurisdiction. When a subordinate court
has assumed a jurisdiction which it does
not have or has failed to exercise a
jurisdiction which it does have or the
jurisdiction though available is being
exercised by the court in a manner not
permitted by law and failure of justice or
grave injustice has occasioned thereby,
the High court may step in to exercise its
supervisory jurisdiction.
(5). Be it a writ of certiorari or the
exercise of supervisory jurisdiction, none
is available to correct mere errors of fact
or
of
law
unless
the
following
requirements are satisfied: (i) the error is
manifest and apparent on the face of the
proceedings such as when it is based on
clear ignorance or utter disregard of the
provisions of law, and (ii) a grave
injustice or gross failure of justice has
occasioned thereby.
(6). A patent error is an error which
is self-evident i.e. which can be perceived
or demonstrated without involving into
any lengthy or complicated argument or a
long-drawn process of reasoning. Where
two inferences are reasonably possible
and the subordinate court has chosen to
take one view, the error cannot be called
gross or patent."

14. Applying the parameters as laid
down by the Apex Court in above two
cases, the impugned judgement of 5th
Additional District Judge cannot be said
to be a judgement which can be interfered
with in exercise of jurisdiction by this
Court under Article 226 or 227 of the
Constitution of India. The Subordinate
Court has neither assumed a jurisdiction
which it does not have nor has failed to
exercise jurisdiction which it does have
nor there is any manifest error apparent
on the face of record committed by the
Court below. The Appellate Court has
given cogent reasons for rejecting the
application as noted above. The appeal
was pending for hearing for last 13 years
and was adjourned at the instance of the
appellant for 4th July, 1996. The Appellate
Court has found that no satisfactory
explanation was given for non-appearance
of the counsel on 4th July, 1996.

15. We are satisfied that in passing
the impugned judgement, the Appellate
Court has not committed such error which
may warrant interference by this Court in
exercise of its jurisdiction under Articles
226/227 of the Constitution of India. The
writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2009

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition (PIL) No.47304 of
2005
Connected with
Civil Misc. Writ Petition No. 10070 of 2006
Civil Misc. Writ Petition No. 57395 of 2008
Civil Misc. Writ Petition No. 58410 of 2008

Ramesh Chandra & others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri B.B. Paul
Sri A.P. Paul
1 All] Ramesh Chandra and others V. State of U.P. and others

211
Counsel for the Respondents:
Sri B.D. Mandhyan
Sri Satish Mandhyan
Sri Indradeo Mishra

Constitution of India-Art. 226-Publice
Interest
Litigation-challenging
notification-cancellation of notification
bringing the village in question out of
consolidation-none
of
petitioner
disclosed their status as former and
inhabitant of concerned village-held-'No
locus standi'-even otherwise it would be
interference with the functioning of
legislation by the judiciary who is best
judge to consider the actual grievance of
citizen.

Held: Para 22 & 34

The petitioners in my considered view
have no interest or locus standi in the
matter. The writ petition is liable to be
dismissed on the ground of lack of
material
particulars
relating
to
the
interest of the petitioners in the present
dispute. It is not the case of the
petitioners that the inhabitants and
agriculturists of the village in question
are so poor that they cannot approach
the
Court
for
redressal
of
their
grievance, if any. Apparently, the present
litigation is not a bonafide one.

Viewed as above, the preponderance of
judicial opinion is that in such matters
the writ as claimed by the petitioners for
quashing the notification issued under
section 6 of the Act, cannot be issued. It
is not necessary for me to discuss the
other cases referred by the learned
counsel for the parties being besides the
issue involved.
Case law discussed:
1976 RD 35, AIR 1973 Alld. 382, 1959 ALJ
209, 1984 R.D. 110, 2000 R.D. 30, 2001 (3)
A.W.C. 2149, 2004 RD 454, 2006 ACJ 2114,
2007 (1) ADJ 630, 1952 SC 252, AIR 1967 S.C.
1895, 1990 RD 117, 1999 RD 400, 1999 RD
468.

(Delivered by Hon'ble Prakash Krishna, J.)

1. In all the above writ petitions, a
common question of law is involved. In
these
writ
petitions,
quashing
of
notification issued under section 6 of the
U.P.CH Act has been sought for. The writ
petition (PIL) No.47304 of 2005 is the
leading case. The arguments were heard
in the said writ petition.

2. The writ petition No.10070 of
2006 is with respect to the notification
issued under section 6 of the Act relating
to villages Bachgaon, Bhidarwa, Julendhi
& Sakha, Pargana, Tehsil & District
Mathura dated 21.7.2005.

3. Writ petition No.57395 of 2008
relates to the village Kuchesar, Pargana
and Tehsil Siyana, District Bulandshahar
which was notified for consolidation
proceedings under section 4 of the Act.
The Consolidation Commissioner by the
order dated 25th July, 2008 impugned in
the present writ petition has dismissed the
representation of the petitioners to keep
the village outside the purview of the
consolidation operation. The quashing of
the said order has been sought for.

4. The writ petition No. 58410 of
2008 is in respect of notification dated
25th
October,
2007
issued
by
the
Consolidation
Commissioner,
U.P.
Lucknow under section 6 of the U.P. CH
Act cancelling the notification dated 10th
October, 1992 issued under section 4 of
the Act. Quashing of the notification
issued under section 6 of the Act has been
sought for in this petition.

5. In all these petitions common
question of law as to whether a writ can
be issued quashing the notifications
212 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

issued under sections 4 or 6 of the Act, is
involved.

6. The writ petition No. 47304 of
2005 is the leading case and it is
necessary to notice the facts from the said
writ petition.

7. The petitioners who are eight in
numbers have preferred this writ petition
titled as PIL for quashing the notification
issued under section 6 of the U.P.
Consolidation of, Holdings Act dated 24th
of March, 2005 issued by the respondent
no.2 and have sought a writ of Mandamus
commanding the respondents not to
enforce the impugned notification against
the
petitioners
and
other
inhabitants/agriculturists
of
village
Gharbara, Pargana Tappal, Tehsil Khair,
District Aligarh on any ground and in any
manner whatsoever.

8. The facts of the case may be
noticed in brief. The petitioners claiming
that the present writ petition is for welfare
of inhabitants and agriculturists of village
Gharbara, Pargana Tappal, Tehsil Khair,
District Aligarh, have challenged the
validity of the notification issued under
section 6 of the Act whereby the earlier
notification issued under section 4 of the
Act dated 21st of September, 1995 has
been withdrawn.

9. In the writ petition, besides
impleading the State of U.P., the
Consolidation
Commissioner
and
Collector, Aligarh, the petitioners have
impleaded Dr. Smt. Gyanwati, President,
Mahila Kalyan Nigam, Aligarh and Shri
Ajit Singh son of Late Chaudhari Charan
Singh, Member Parliament and National
President of Indian Lok Dal, New Delhi
as respondents. It has been pleaded that
consolidation operation was going on
peacefully in the village Gharbara.
Certain influential persons (Bhoo Mafias)
pressurized the Consolidation Authorities
to
manipulate
cancellation
of
consolidation proceedings in the village.
One writ petition No.35709 of 2003 was
filed by one Daya Ram for cancellation of
the consolidation proceedings, which was
decided by this Court on 16th of April,
2004. The Court disposed off the writ
petition and while doing so it has been
found that no ground for quashing the
notification under section 4 (2) of the
Consolidation of Holdings Act is made
out. It, however, permitted the petitioners
therein to make a representation before
the Consolidation Commissioner, U.P.,
Lucknow in respect of the aforesaid
grievances.
The
Consolidation
Commissioner as per the allegations made
in the present writ petition has issued the
impugned notification dated 24th of
March, 2005 under section 6 of the Act
cancelling
the
earlier
notification
arbitrarily and under the influence of the
private respondent Nos. 4 and 5. It has
been further stated that the impugned
notification has been issued in pursuance
of the letter of Smt. Gyanwati who
happens to be daughter of late Chaudhary
Charan Singh and sister of Shri Ajit Singh
(M.P.). The Tehsildar in his report dated
28th
of
August,
2004
somehow
manipulated
issuance
of
impugned
notification. Similarly, the Sub Divisional
Magistrate and the Collector, Aligarh
recommenced
for-
issuance
of
the
impugned
notification
and
the
Consolidation
Commissioner,
consequently,
issued
the
impugned
notification which, according to the
petitioners, is manifestly erroneous in
law, arbitrary, discriminatory, perverse
and without jurisdiction. It has failed to
1 All] Ramesh Chandra and others V. State of U.P. and others

213
take into consideration the report of the
consolidation authorities dated 4th of
August, 2004, 5th of August, 2004, 24th of
August, 2004 and 28th of August, 2004;
the ingredients of Section 6 of the Act
were not fulfilled before issuance of the
impugned notification. The consolidation
operation had started in pursuance of the
notification dated 21st of September, 1995
and the allegation with regard to the
alluvial and deluvial action in the villages
as well as their location near bordering
villages of Haryana, are wholly incorrect.
Boundary dispute between the State of
U.P. and State of Haryana had already
been settled by the department of Survey
of India and the Dixit Award referred to
in the report of the Collector dated 11th
February, 2005.

10. A counter affidavit on behalf of
the respondent no.3 controverting the
allegations made in the writ petition has
been filed by the Consolidation Officer
wherein the allegation that the impugned
notification was issued on extraneous
consideration, has been denied. The
receipt of letter of Smt. Gyanwati in the
Consolidation Office is accepted, but no
action was taken in pursuance of the said
letter, it has been stated. The impugned
notification has been sought to be justified
on the basis of the reports of Assistant
Consolidation Officer dated 4th of August,
2004, of Upziladhikari dated 4th of
January, 2005 and that of the Collector
dated
11th
February,
2005.
The
Consolidation Commissioner has issued
the impugned notification in pursuance of
the aforestated reports of the Officers
concerned. It has been further stated that
Naib Tehsildari, Khair in his report dated
28th December, 2004 submitted that there
is no need of consolidation operation in
the village.
11. In paragraph 6 of the counter
affidavit it has been stated that River
Yamuna is flowing through nearby
villages and there is still boundary dispute
in between the 'States of U.P. and
Haryana and as such, it would not be in
the interest of the villagers to carry out the
consolidation operation in the village. The
impugned notification has been issued in
valid exercise of power conferred on the
authority concerned. In paragraph 22 of
the counter affidavit it has been stated that
although the Survey of India demarcated
the boundary line in between the States of
U.P. and Haryana in the map and also on
the spot but presently on the spot the
pillars are not in existence. The total area
of the village Gharbara is 2,374.96
hectares, out of which land is 1958.78
hectares.

12. Another counter affidavit has
been filed by one Jag Veer Singh who is
not impleaded as one of the respondents
in the writ petition but has applied for his
impleadment as respondent no.6. It has
been stated that the total area of the
village Gharbara was 52, 000 bighas and
after the Dixit Award about 6, 000 bighas
were included in the State of Haryana.
During the rainy season River Yamuna
overflows and entire village Gharbara is
flooded with water. The most of land due
to flood has become barren and its
valuation has been reduced from 90 paise
to 10 paise. The tenure holders of village
Gharbara had moved an application
before the Sub Divisional Magistrate,
Khair
to
stay
the
consolidation
proceedings and denotify the village. On
the said application a report from the
Tehsildar was called for. It has been
further stated that the present writ petition
could not have been treated as PIL and no
pressure
was·
exercised
on
the
214 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Consolidation Commissioner to issue the
impugned notification. The contention
that the impugned notification has been
issued on extraneous considerations, has
been denied and it has been submitted that
the said notification has been issued on
correct facts. The reports of the Naib
Tehsildari, Sub Divisional Magistrate and
Additional District Magistrate, Aligarh
contain correct facts. The Consolidation
Commissioner
issued
the
impugned
notification after taking into account the
majority opinion of the agriculturists and
inhabitants of village Gharbara.

13. Rejoinder affidavits have been
filed reiterating the stand taken in the writ
petition.

14. Shri B.B. Paul, the learned,
counsel for the petitioners, submits that
the impugned notification is liable to be
quashed on the ground that it has been
issued
by
the
Consolidation
Commissioner at the dictate of private
respondents no.4 and 5. Elaborating the
argument, it was submitted that the writ
petition filed earlier, was dismissed by
this Court and as such, it was not open to
the Consolidation Commissioner to undo
the judgement of this Court by issuing the
denotification under Section 6 of the Act.
He submits that the impugned notification
has been issued at the instance of certain
influential persons who are none else but
Bhoo Mafias i.e. the land grabbers. This
Court can judge the validity of the
notification on the touch-stone of Section
6 and Rule 17 as framed under the Act.
Shri B.D. Mandhyan, learned senior
counsel, appearing on behalf of the
proposed respondent no.6 submits that in
Division
Bench
judgement
in
Agricultural & Industrial Syndicate,
Ltd. Vs. State of U.P. 1976 RD 35 it has
been held that a writ petition challenging
the validity of notification issued under
section 6 of the Act is not maintainable as
the notification issued under the said
section is legislative act and not an
administrative act. On merit, he submits
that on the facts of the present case, it
cannot be said that the impugned
notification has been issued on extraneous
considerations. The reports of the high
officials, such as that of Collector, Sub
Divisional Magistrate etc. have been
taken into consideration by the authority
concerned
before
issuance
of
the
impugned notification. The allegation that
the applicant for impleadment or other
persons are influential persons or land
grabbers, is totally baseless, there being
no material on the record. On the other
hand, the petitioners are land grabbers.
The
learned
standing
counsel
also
supports the impugned notification and
submits that in view of the authoritative
pronouncements by this Court In the
aforestated decision of Agricultural &
Industrial Syndicate, Ltd. (supra), the
writ petition is liable to be dismissed.

15. Considered the respective
submissions of the learned counsel for the
parties and perused the record.

16. The U.P. Consolidation of
Holdings Act, 1953 has been passed in
connection with the consolidation of
agricultural holdings in Uttar Pradesh for
development of agriculture. After the
enforcement of the U.P. Zamindari
Abolition and Land Reforms Act, 1950
there was a pressing demand for the
consolidation of holdings in the State, as
mentioned in the statement of objects and
reasons of the Act.
1 All] Ramesh Chandra and others V. State of U.P. and others

215
"Consolidation"
means
rearrangement of holdings in a unit
among several tenure holders in such a
way to make their respective holdings
more compact vide section 3 (2) of the
Act.

"Consolidation Scheme" means the
scheme of consolidation in a unit as
provided in (3-B) of Section 3 of the Act.
Section 4 of the Act provides the
declaration and notification regarding the
consolidation. This section lays down that
the State Government on being of the
opinion that a district or part thereof may
be brought under the consolidation
operation, shall make a declaration to this
effect. The publication of this declaration
empowers the officer or authority of the
consolidation scheme to enter upon and
survey and take levels of the land. The
officer or authority will thereupon fix
pillars
10
connection
with
the
rectangulation or otherwise and will do
any other act for ascertaining the
suitability of the area for consolidation
operations. The validity of section 4 to 9A
and 49 of the U.P. Consolidation of
Holdings Act has been upheld by this
Court in Shyam Sunder and others Vs.
Siya Ram and another, AIR 1973 Alld.
382. The publication of the declaration
has been held to be mandatory in
Tajammul
Husain
Vs.
A.C.O.
Jalalabad 1959 ALJ 209.

17. Coming to the facts of the
present case, it may be noticed that the
declaration under section 4 of the Act was
published on September 21, 1995. It is
also not in dispute that the villages in
question are situate near Yamuna River
and are subject to flood during rainy
season. According to the contesting
respondents there is a state boundary
dispute between the State of Uttar Pradesh
and Haryana which according to the
petitioners has been settled by Dixit
Award. None of the parties has placed on
record the said Dixit Award or any other
material about existence or settlement of
such dispute in the present writ petition, at
least.

18. The main thrust of the
submission of Shri B.B. Paul, learned
counsel for the petitioners, is that
notification/declaration
issued
under
section
6
cancelling
the
earlier
notification/declaration
issued
under
section 4 of the Act is without application
of mind and malafide. The Consolidation
Commissioner has issued the impugned
notification ignoring the fact that the
ingredients of Rule 17 are not fulfilled.

19. It is desirable to consider the
allegations of malafide as pleaded in the
writ petition against the respondents,
particularly the respondents no.4 and 5
first. In para 6 of the writ petition it has
been stated that Smt. Gyanwati, the
President of Mahila Kalyan Nigam, sister
of Ajit Singh, M.P. and National
President of Indian Lok Dal, New Delhi
wrote a letter to the Consolidation
Commissioner to cancel the notification.
The existence of the said letter has not
been disputed in the counter affidavit filed
on behalf of the respondent No.3. It has
been stated that no action in pursuance of
the said letter was taken. The impugned
notification has been issued on the basis
of the reports submitted by the high
officials, such as Collector, Aligarh,
S.D.M. Khair etc .. No malafide intention
can be imputed merely on the ground that
the respondent no. 4 wrote a letter to the
Consolidation Commissioner. It is not the
case of the petitioners that the contents of
216 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

the said letter are irrelevant or in any
manner are incorrect. She being the
representative of the public and had been
M.L.A for fiver years, has done no wrong
if she has brought to the notice of the
Consolidation
Commissioner
the
grievances of the public in general. Being
representative of the public, she has acted
bonafidely, what is to say malafidely by
placing the grievances of public before
the Consolidation Commissioner through
the letter. Except writing the letter, she
has done nothing and I do not see how the
said conduct of the respondent no.4 is
blameworthy. Nothing .was done by her
for personal gains or for illegal gains to
her relatives, associates or to anybody.
That appears to be the reason why no
notice of the writ petition inviting
comments from her was issued by this
Court while granting the interim relief on
6th of July, 2005. At no stage, notices
were issued to either of the private
respondents No.4 and 5. Except the
allegations made in para 6 of the writ
petition which has been sworn on record,
there appears to be no other allegation
against her. At least, none else was
pointed out by the learned counsel for the
petitioners during the course of the
argument. Similarly, there appears to be
no allegation against the respondent no.6
in the entire writ petition. The allegations
of
malafide,
thus,
are
vague
and
unfounded and are liable to be ignored.
The other aspect of the case is that there
were two views of the authorities with
regard to the continuance/denotification
of the village for consolidation operation.
Report of the Assistant Consolidation
Officer to the Consolidation Officer,
Aligarh dated 5th of August, 2004
(Annexure -3 to the writ petition), report
of the Consolidation Officer dated 13th
August, 2004 (Annexure -5), report of the
Settlement Officer Consolidation dated
24.5.2004
(Annexure-6
to
the
writ
petition) are to the effect that the
consolidation operation in the village
should be continued. On the other hand,
the reports of the Naib Tehsildar dated
28th
December,
2004,
of
the
Sub
Divisional Magistrate dated 4th January,
2004, of Additional District Magistrate
(Admn.) dated 10th February, 2005 and of
the
District
Magistrate
dated
11th
February, 2005 are to the effect that in the
larger public interest, the village Gharbara
be denotified under section 6 (l) of the
Act. The Consolidation Commissioner
taking into consideration these reports has
issued
the
impugned
notification/declaration under section 6 of
the Act, cancelling the notification issued
under section 4 of the Act. Taking one
view of the matter by the Consolidation
Commissioner, cannot be termed as
arbitrary or malafide on the facts of the
present case. He was required to take a
decision in this regard by this Court under
the order dated 16th of April, 2004
delivered in the writ petition No.35709 of
2000.

20. Taking into consideration the
entire facts and circumstances of the case,
the plea of malafide pressed by the
petitioners is devoid of substance and is
therefore, rejected.

21. Now, before considering the
other aspects of the writ petition, its
maintainability at the instance of the
petitioners may be considered. The
present writ petition has been filed by
eight persons. They have been shown
residents of Raipur, Mohalla Gharbara,
Pargana Tappal, Tehsil Khair, District
Aligarh. In paragraph 1 of the writ
petition which
1 All] Ramesh Chandra and others V. State of U.P. and others

217
is reproduced below, only this much,
regarding their interest or locus in the
matter has been stated:-

"That this is the first (P.I.L) writ
petition for welfare of inhabitants and
agriculturist
of
village
Gharbara,
Pargana Tappal, Tehsil Khair, District
Aligarh for quashing of notification under
section 6 of U.P.C.H. Act dated 24.3.2005
in respect of village Gharbara, Pargaruz
Tappal, Tehsil Khair, District Aligarh
(Annexure - ) and proceeding following
the same."

22. A bare perusal of the said
paragraph would show that the present
writ petition has been styled as P.I.L.
(Public Interest Litigation) for welfare of
inhabitants and agriculturists of the
village
in
question.
None
of
the
petitioners have averred anywhere in the
writ petition that they are agriculturists or
have any piece of the land in village in
question. In other words, none of the
villagers who could have any grievance
have come forward to challenge the
notification/declaration
issued
under
section 6 of the Act. The petitioners in my
considered view have no interest or locus
standi in the matter. The writ petition is
liable to be dismissed on the ground of
lack of material particulars relating to the
interest of the petitioners in the present
dispute. It is not the case of the petitioners
that the inhabitants and agriculturists of
the village in question are so poor that
they cannot approach the Court for
redressal of their grievance, if any.
Apparently, the present litigation is not a
bonafide one.

23. Coming to the merit of the case,
the contention of the petitioners is that
while issuing the notification under
section 6 of the Act, the Consolidation
Commissioner has ignored Rule 17 of the
U.P.CH. Rules, 1954. The said Rule reads
as follows:-

"17. Section 6.- The notification
(substituted for the word "declaration" by
Notification No.437-CH/I-E-256-61-dated
March 25, 1964) made under Section 4 of
the Act, may among other reasons, be
cancelled in respect of the whole or any
part of the area on one or more of the
following grounds, viz. that -

(a) the area is under a development
scheme of such a nature as when
completed
would
render
the
consolidation operations inequitable
to a section of the peasantry;
(b) the holdings of the village are
already consolidated for one reason
or the other and the tenure-holders
are generally satisfied with the
present position;
(c) the village is so torn up by party
factions
as
to
render
proper
consolidation proceedings in the
villager very difficult;
(d) a co-operative society has been
formed for carrying out cultivation in
the area after pooling all the land of
the area for this purpose."

24.

It
provides
grounds
for
cancelling the notification issued under
section 4 of the Act in respect of whole or
part or any part of the area. A bare perusal
of the said Rule would show that the said
Rule does not provide an exhaustive list
of the grounds for cancellation of the
notification issued under section 4 of the
Act in as much as it uses the words
"among other reasons". Meaning thereby
the grounds mentioned under the said
218 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Rule are only illustrative and not
exhaustive.

25. The Agricultural & Industrial
Syndicate, Ltd. (supra) is a Division
Bench authority of this Court wherein it
has been held that where the State
Government issues a notification under
section 6, it does not exercise any
executive power. It has also been held that
when the Director of Consolidation issues
a notification under section 4 or 6 of the
Act, he performs neither the quasi judicial
function nor exercises any administrative
power,
but
performs
a
legislative
function. To judge the validity of the
notification, the court must apply the
same tests as would apply to a piece of
legislation. It has been held that it is not at
all required to accord reason or afford an
opportunity of hearing to the tenure
holders concerned by the Consolidation
Commissioner
before
issuing
a
notification under section 6 of the Act.
The exercise of powers under sections 4
and 6 of the Act by the State Government
is a conditional legislative power and it
cannot be conceivably contended that the
High Court can issue a Mandamus to the
legislature to legislate on any subject or to
apply any law to any area. The High
Court cannot pass an order making it
obligatory on the State Government to
enforce the scheme of consolidation in an
area where in its opinion such scheme
should not be enforced. It would amount
to compel the State Government to
exercise
its
power
of
conditional
legislation. The aforesaid judgement of
the Division Bench when was pointed out
to the petitioners' counsel, was sought to
be distinguished and in reply strong
reliance was placed on the following few
judgments of the Hon'ble Single Judge:-

1. Jiwan Singh Vs. State of U.P. 1984
R.D. 110.
2. Jagpal Singh Vs. D.D.C. 2000 R.D.
30.
3. Usman Gani Vs. State of U.P. 2001
(3) A.W.C. 2149.
4. Smle Saroj Vs. State of U.P. 2004
RD 454.
5. Suraj Bhan Vs. D.C. 2006 ACJ
2114.
6. Tanseem Bano Vs. State of U.P.
2007 (1) ADJ 630.

26. Further reliance was placed on
State of Bihar Vs. Kishan Singh, 1952
SC 252 and M/s. Devi Das Vs. State of
Punjab AIR 1967 S.C. 1895 etc. for the
proposition that where there is violation
of guidelines, abuse and misuse of
executive delegated power, action can be
challenged before court.

27. The decision given in the case of
Jeevan Singh Vs. State of U.P. (supra),
is the star case of the petitioners and
therefore, it is desirable to examine the
facts of the said case with some detail. In
this case, the Hon'ble Single Judge has
distinguished the ratio of Division Bench
decision in the case of Agricultural &
Industrial Syndicate, Ltd. (supra). The
facts of that case would show that in that
case the proceedings under the Act were
taken, records were verified, valuation of
each plot of tenure holder was fixed,
objections under section 9 of the Act were
decided, the Chaks were carved out and
finally allotted to different Chak holders
on 6th of October, 1967 and thereafter, the
possession was also delivered to Chak
holders on 17th of May, 1968. The Court
took the view that the records of the rights
were finalized under the provisions of the
Act and new rights have been accrued to
the
respective
tenure
holders
in
1 All] Ramesh Chandra and others V. State of U.P. and others

219
connection with their new Chaks. Nothing
remained to be decided under the
provisions of the Act and the notification
under section 52 of the Act was a mere
formality. On this factual background of
the case the Court after taking into
consideration the pronouncements of the
Apex Court, has held that the right
conferred on tenure holder under section
30 of the Act is not dependent on the
notification under section 52 of the Act
and therefore, section 6 of the Act has to
be interpreted in the way as not to take
away the rights which have been
conferred on the tenure holders under
section 30 of the Act. It took the view that
section 6 of the Act does not mention any
thing about the new rights conferred on
the new Chak holders and is confined
only up to the correction of the land
records. On this factual background and
the legal position, it was held therein that
the ratio laid down in Agricultural &
Industrial Syndicate, Ltd. (supra) has no
application to the facts of that case. The
relevant portion is reproduced below:-

"The pronouncements of the Supreme
Court as well as of this Court lead to the
conclusion that if the records of land
rights have been finalised under the
provisions of the Act and new rights have
been accrued to the respective tenureholders in their new Chaks. Nothing
remains
to
be
decided
under
the
provisions of the Act and notification
under section 52 of the Act remains a
formal act. The postponement of issuance
of notification under Section 52 of the Act
for any period howsoever long it may be,
has got no effect on the title acquired by
the tenure-holders in their new Chaks
under Section 30 of the Act. Tenureholders are free to deal with the land in
any manner according to law. The rights
conferred on the tenure-holders under
Section 30 of the Act is not dependent on
the notification under Section 52 of the
Act and, therefore, Section 6 of the Act
has to be interpreted in the way as not to
take away the rights which have been
conferred on the tenure-holders under
Section 30 of the Act. It is significant to
note that there is no specific mention of
Section 52 of the Act in Section 6 of the
Act
leads
to
the
conclusion
that
subsection (2) of Section 6 of the Act puts
a limit on issuance of notification under
Section 6 (1) of the Act at any time.
Section 6(2) of the Act definitely provides
that notification under sub-section (1) of
Section 6 of the Act shall be subject to
final orders relating to correction of land
records
meaning
thereby
that
the
notification could be issued before the
finalisation of the new records of land
and new map and conferment of new
rights under Section 30 of the Act in
favour of the tenure-holders in respect of
their Chaks. According to Section 30 of
the Act tenure-holders' rights in their
original holdings disappeared and they
got the same rights, title and interest in
their Chaks allotted in the consolidation
of holdings operations. Therefore, Section
6 of the Act does not mention anything
about the new rights conferred on the new
Chak-holders and is confined only upto
the correction of land records. Therefore,
the decision relied upon by the learned
counsel for the respondents reported in
Agricultural & Industrial Syndicate, Ltd.
(supra) has no application to the facts of
the present case as in that case
notification under Section 6 of the Act
was issued before the consolidation
records and not after the conferment of
the new rights on the tenure-holders
under Section 30 of the Act."
220 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

28. It has also noticed that the
appeals and revisions filed by the tenureholders were all disposed off and Chaks
were carved out in the village and finally
allotted. Such is not the position in the
case on hand. It was submitted that the
consolidation operation is being carried
on in the village in question on account of
the stay order passed by this Court on 6th
of July, 2005 in the present writ petition.
The said fact was hotly disputed by the
learned counsel for the respondents. They
submitted that the consolidation operation
is wholly at its primary stage and no
adjudication till date has taken place. Be
that as it may, there appears to be no
material in support of the respective pleas.
However, it can be concluded that at any
rate the rights of the parties have not been
decided finally by the consolidation
authorities. Had it been so the petitioners
would have been in a position to place
relevant records before this Court. There
is no material on record to show even
remotely that the rights of the tenureholders have been adjudicated upon or
appeals and revisions filed by the tenureholders have been disposed off. In
absence of any such material, the
inference
can
be
drawn
that
the
consolidation operation even if is in
existence due to interim order passed by
this Court, is in its infancy stage. There is
no whisper in the writ petition nor was
argued by the learned counsel for the
petitioners that the rights of the tenureholders have been finally determined and
issuance of a notification under section 52
of the Act is only required to be done.
This being so, the ratio laid down in the
case of Jiwan Singh Vs. State of U.P.
(supra) has no application to the facts of
the present case; the observations made
therein should be understood in the
context and the factual background as
they exist therein.

29. In Ashwani Kumar Vs. U.P.
Public Services Commission AIR 2003
S.C. 2661 (14) the following words of
Lord Denning in the matter of applying
precedents have come locus classicus:-

"Each Case depends on its own facts
and a close similarity between one case
and another is not enough because even a
single significant detail may alter the
entire aspect. In deciding such cases, one
should avoid the temptation to decide
cases (as said by Cordozo) by matching
the colour of one case against the colour
of another. To decide therefore, on which
side of the line a case falls, the broad
resemblance to another case is not all
decisive."

30. In Jagpal Singh Vs. D.D.C.
(supra) it has been held that notification
issued under section 6 of the Act, can be
cancelled by the State Government only
and the writ petition was held to be non
maintainable.

31. The reliance placed by the
petitioners on Usman Gani Vs. State of
U.P. (supra) is misplaced one. It has been
held therein that a writ of Mandamus can
be issued only in those cases where the
authorities are under legal obligation to
perform statutory duty, but on the
representation they failed to perform the
same. Mere filing of representation is not
sufficient to issue a writ of Mandamus
unless it is further demonstrated that their
action is demeanor.

32. In the other decision delivered in
Smt. Saroj Vs. State of U.P. (supra)
attention of the Hon'ble Single Judge was
1 All] Anoop Kumar Rathore V. Chief Engineer, P.W.D., Jhansi Zone and others

221
not brought to the Division Bench
decision in Agricultural & Industrial
Syndicate, Ltd. (supra). Therefore, the
said judgement of the Hon'ble Single
Judge should be read subject to already
existing law as laid down earlier by the
aforestated Division Bench. Moreover,
the decision was rendered taking into
consideration the factual aspects of the
case rather the legal principle delineated
under section 6 of the Act, which is
apparent from the paragraphs-6 and 7 of
the report.

33. The decision delivered in Suraj
Bhan Vs. D.C. (supra) although supports
the contention of the petitioners but in
view of the Division Bench decision in
the case of Agricultural & Industrial
Syndicate,
Ltd.
(supra)
holding
otherwise, the decision of Division Bench
should be given preference and in my
considered view no such writ petition can
be issued. The said view is further
fortified by the decisions given in Deo
Nath Kewat Vs. DDC 1990 RD 117;
Neelam Chaudhary Vs. State of U.P.,
1999 RD 400 and Sazid and others V s.
Commissioner of Consolidation 1999
RD 468.

34.

Viewed
as
above,
the
preponderance of judicial opinion is that
in such matters the writ as claimed by the
petitioners for quashing the notification
issued under section 6 of the Act, cannot
be issued. It is not necessary for me to
discuss the other cases referred by the
learned counsel for the parties being
besides the issue involved.

35. In view of the above discussion,
I find no merit in the writ petition, the
writ petition is dismissed.

In the result, all the writ petitions are
hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2009

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 51691 of 2006

Anoop Kumar Rathore
...Petitioner
Versus
Chief Engineer, Jhansi Zone, P.W.D.,
Jhansi and others
 ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh

Counsel for the Respondents:
Sri B.P. Singh
Sri Ravi Ranjan
S.C.

Constitution of India Art. 226-Right of
appointment-junior
clerk
postspetitioner obtained much higher marks
in
written
examination-than
other
selected candidates appointment denied
on lack of Hindi Typing experience-a
preferential
qualification-comes
in
picture only when the marks of other
candidates
are
equal-admittedly
petitioner obtained 39 marks where as
other candidature got only 31, 32, 33
etc.-denial of appointment-held-illegalconsequential direction given.

Held: Para 9

Perusal of the paragraphs 12 and 13 of
the
writ
petition
shows
that
the
petitioner has got 39 marks while other
selected candidates, namely, Sanjeev
Kumar, Umashankar Rakwar, Rajendra
Sharan
Rakwar,
Shishupal,
Vishnu
Kumar and Santosh Kumar obtained only
37.265, 36.40, 32.265, 32.355, 31.70 and
30.10 marks lower than the petitioner's