# Suraj Bhan and others v. 1064 INDIAN LAW REPORTS ALLAHABAD SERIES [2006 Director Consolidation, U.P., Lucknow and others

- **Citation:** (2006) 3 ILRA 1063
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-05-19
- **Case number:** Civil Misc. Writ Petition No.25739 of 2006
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suraj-bhan-and-others-v-1064-indian-law-reports-allahabad-series-2006-director-40725
- **Pages:** 8

## Headnote

U.P. Consolidation of Holding Act-Section
4 (2)(a), 6 read with Consolidation of
Holdings Rules Rule-17 (c)-Notification
under
section
4
(2)(a)
published
Consolidation Proceeding started-Chak
allotment
finalized
only
possession
remained to be delivered under Section
23-on the basic of consolidation reportwithout application of mind the D.D.C.
recommended
for
publication
of
Notification
rescinding
consolidation
proceeding-held-not
proper-direction
issued to pass a fresh order regarding
the fulfillment of condition contained
under rule 17 (c) before exercising
power under section 6 of the Act.

Held: Para 13

In the above conspectus, the writ
petition succeeds and is allowed and
inconsequence,
the
impugned
order
dated 2.9.2005 (Annexure 10 to the writ
petition) is quashed. The matter may be
remitted to the Director Consolidation
for decision afresh in the light of the
facts available on record or to ascertain
the fact otherwise in accordance with
law whether condition (C) of Rule 17 of
the
Rules
framed
under
the
U.P.
Consolidation of Holdings Act is satisfied
before exercising power under section 6
of the U.P.C.H. Act.
Case law discussed:
1976 RD-35

## Text

3 All] Om Prakash V. Dakshinanchal Vidyut Vitran Nigam and others
1063
decide
(Vide
H.H.
Maharajadhiraja
Madhav Rao Jivaji Rao Scindia Bahadur
& Ors. Vs. Union of India, AIR 1971 SC
530; M/s Amar Nath Om Prakash & Ors.
Vs. State of Punjab & Ors., AIR 1985 SC
218; Rajpur Rude Meha Vs. State of
Gujarat, AIR 1980 SC 1707; C.I.T. Vs.
Sun Engineering Works (P) Ltd., (1992) 4
SCC 363; Sarva Shramik Sangh, Bombay
Vs. Indian Hume Pipe Co. Ltd. & Anr.,
(1993) 2 SCC 386; Haryana Financial
Corporation & Anr. Vs. M/s Jagdamba
Oil Mills & Anr., AIR 2002 SC 834;
Mehboob Dawood Shaikh Vs. State of
Maharastra, (2004) 2 SCC 362; M/s
Makhija Construction and Enggr. Pvt.
Ltd. Vs. Indore Development Authority &
Ors., AIR 2005 SC 2499; and Shin-Etsu
Chemical Co. Ltd. Vs. Aksh Optifibre
Ltd. (2005) 7 SCC 23.

19. In Jawahal Lal Sazawal & Ors.
Vs. State of Jammu & Kashmir & Ors.,
AIR 2002 SC 1187, Hon'ble Supreme
Court held that a judgment may not be
followed in a given case if it has some
distinguishing features.

20. In Bhavnagar University Vs.
Palitana Sugar Mill (P) Ltd., AIR 2003
SC 511, the Hon'ble Supreme Court held
that a decision is an authority for which it
is decided and not what can logically be
deducted therefrom. A little difference in
facts or additional facts may make a lot of
difference in the presidential value of a
decision. While deciding the said case the
Court placed reliance upon its earlier
judgment in Delhi Administration Vs.
Manohar Lal, AIR 2002 SC 3088.

21. In Union of India Vs. Chajju
Ram, AIR 2003 SC 2339, a Constitution
Bench of the Hon'ble Supreme Court held
as under:-

"It is now well settled that a decision
is an authority for what it decides and not
what can logically be deduced therefrom.
It is equally well settled that a little
difference in facts may lead to a different
conclusion."

22. In Ashwani Kumar Singh Vs.
U.P. Public Service Commission & Ors.,
AIR 2003 SC 2661, the Apex court held
that a judgment of the Court is not to be
read as a statute as it is to be remembered
that judicial utterances have been made in
setting of the facts of a particular case.
Substantial flexibility; one additional or
different fact may make a world of
difference between the conclusions in two
cases. Disposal of cases by blindly
placing reliance upon a decision is not
proper.

23. There is another possibility that
after obtaining an interim relief from the
Court, the party may not approach any
other forum and cause prejudice to the
rights of the other parties.

24. Thus, in view of the above, the
relief sought by the petitioner at this stage
after withdrawing the writ petition cannot
be granted and prayer so made stands
rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2006

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No.25739 of 2006

Suraj Bhan and others ...Petitioners
Versus
1064 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Director Consolidation, U.P., Lucknow
and others

 ...Respondents

Counsel for the Petitioners:
Sri A.P. Paul
Sri B.B. Paul

Counsel for the Respondents:
C.S.C.

U.P. Consolidation of Holding Act-Section
4 (2)(a), 6 read with Consolidation of
Holdings Rules Rule-17 (c)-Notification
under
section
4
(2)(a)
published
Consolidation Proceeding started-Chak
allotment
finalized
only
possession
remained to be delivered under Section
23-on the basic of consolidation reportwithout application of mind the D.D.C.
recommended
for
publication
of
Notification
rescinding
consolidation
proceeding-held-not
proper-direction
issued to pass a fresh order regarding
the fulfillment of condition contained
under rule 17 (c) before exercising
power under section 6 of the Act.

Held: Para 13

In the above conspectus, the writ
petition succeeds and is allowed and
inconsequence,
the
impugned
order
dated 2.9.2005 (Annexure 10 to the writ
petition) is quashed. The matter may be
remitted to the Director Consolidation
for decision afresh in the light of the
facts available on record or to ascertain
the fact otherwise in accordance with
law whether condition (C) of Rule 17 of
the
Rules
framed
under
the
U.P.
Consolidation of Holdings Act is satisfied
before exercising power under section 6
of the U.P.C.H. Act.
Case law discussed:
1976 RD-35

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Challenge in this petition is
focused on the order dated 2.9.2005
whereby Director, Consolidation, U.P.
rescinded the Notifications dated 1.8.1986
and 8.9.1991 having been issued under
section 4 (2) (a) of the U.P. Consolidation
of Holdings Act for commencement of
consolidation of the area relating to two
villages
namely,
village
Jakhangaon
Tahsil Mathura and village Fodar Tahsil
Mathura.

2. The petition was called on
11.5.2006 and the same day, by an order
of the Court dated 11.5.2006, learned
Standing counsel was directed to seek
instructions from respondents forthwith
and the case was listed for 16.5.2006. No
counter affidavit was filed on 16.5.2006
on behalf of Director Consolidation and
instead, the learned Standing counsel
furnished all the requisite information by
producing entire material as received
from the office of Director Consolidation
and the same was ordered to be placed on
record.

3. A brief resume of necessary facts
filtering out unnecessary details, as
collected from the papers furnished by the
learned Standing counsel before the court,
is that village Jakhangaon situated within
the circle of Tahsil Mathura was notified
under section 4 (1) (a) on 26.10.1991
while village Fodar falling within the
circle of Tahsil Mathura was notified for
commencement
of
consolidation
proceeding
on
23.8.1986.
Thereafter
records were published under section 8 of
the Act on 31st Oct, 1994 followed by
final records prepared and published on
12th Oct 1995. It would further transpire
from the record that chak allotment
proceedings
were
embarked
upon
followed by publication of record on
26.2.1996 and thereafter, provisional
scheme of chak allotment proceedings
3 All] Suraj Bhan and others V. Director Consolidation, U.P., Lucknow and others
1065
came to be confirmed on 1.9.1996. In so
far as village Fodar is concerned,
notification under section 4 (1)(a) of the
Act was issued on 23.8.1986 and final
records were published on 24.10.1989 and
thereafter chak allotment proceedings
were
confirmed
and
published
on
20.5.1995. From a further scrutiny of the
record, it would appear that a resolution
was passed in the matter by Land
Management
Committee
containing
signatures of certain villagers whereby
further consolidation proceedings were
sought to be rescinded. It would further
appear from the record that consolidator
and consolidation Lekhpal submitted a
report and on the basis of that report, the
District
Magistrate/District
Deputy
Director
Consolidation
transmitted
a
report to the Director Consolidation the
text of which is that on account of
objection to continuance of consolidation
proceeding by the village people, the
authorities were not getting cooperation
for carrying out further consolidation
operation in the village and as a result, the
further consolidation proceedings were
stymied. Likewise, in the matter of village
Jakhangaon, similar view was articulated
and ultimately all the papers were
transmitted to the Director Consolidation
alont-with proposal for cancellation of
consolidation proceeding in relation to the
two villages. In the ultimate analysis,
order dated 2.9.2005 was passed by
Director
Consolidation
whereby
notifications issued under section 4 (2)(a)
of the Act relating to the two villages
aforesaid were rescinded.

4. I have heard learned counsel for
the parties and have also been taken
through the record.

5. Learned counsel for the petitioner
assailed the impugned order on the
ground that after the notifications under
section 4 (1)(a) of the U.P. Consolidation
of Holding Act published on 26.10.1991
publication of record was undertaken
under section 9 of the Act and thereafter
final records were published under section
10 of the Act in the year 1995 followed
by chak allotment proceeding which were
published and subsequently the matter
attained finality under section 23 of the
Act in the year 1996 and only action that
remained to be taken up, was to hand over
possession to respective tenure holders.
He argued that order of cancellation of
notification
militates
against
the
provisions of Section 6 read with Rule 17
of the U.P. Consolidation of Holding
Rules. He further canvassed that the
Director
Consolidation
passed
the
impugned order sans any reasons. Per
contra, learned Standing propped up the
impugned order passed in exercise of
power under section 6 of the Act stating
that on the basis of various reports and
records submitted at his end, he rightly
passed the impugned order.

6. In the light of the above facts, it
would be useful to refer to Section 6 of
the U.P. Consolidation of Holdings Act
and Rule 17 of the U.P. Consolidation of
Holdings Rules.

"6. Cancellation of notification under
Section 4.-(1) It shall be lawful for the
State Government at any time to cancel
the (notification) made under Section 4 in
respect of the whole or any part of the
area specified therein.

(2) Where a (notification) has been
cancelled in respect of any unit under subsection (1), such area shall, subject to the
final orders relating to the correction of
1066 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
land records, if any, passed on or before
the date of such cancellation, cease to be
under consolidation operations with effect
from the date of the cancellation."
Rule 17 of the U.P. Consolidation of
Holdings Rules

Section 6-The (notification) made
under Section 4 of the Act, may among
other reasons, be cancelled in respect of
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 reasons
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
village very difficult; and
(d) that 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."

7. It is explicit from a perusal of
Section 6 of the Act that the State
Government
may
cancel
notification
under section 4 of the Act in respect of
whole or any part of the area specified
therein. From a perusal of Rule 17 of the
Rules,
framed
under
the
U.P.
Consolidation of Holdings Act it would
by crystallize that cancellation proceeding
can be initiated on four grounds as
enumerated in the rule.

8. From a perusal of record, ground
(a) (b) and (d) are not attracted. In so far
as ground (c) is concerned, it spells out
that that notification under section 4 of
the Act can be cancelled if the village is
so torn up by party factions as to render
proper consolidation proceedings in the
village very difficult. Coming to the facts
pertaining to village Foder, it may be
recalled (as stated supra) that the Land
Management Committee had passed some
resolution bearing signatures of few
disgruntled village people objecting to
continuing further consolidation operation
in the village and ostensibly on the basis
of the said resolution, Consolidator and
consolidation Lekhpal scripted some
report and again on the basis of the said
report, the matter was referred to Director,
Consolidation who in his discretion,
passed the impugned order. It would
transpire from the reports submitted to the
end
of
Director
Consolidation
that
authority concerned was apprised that the
village people were not cooperating in the
consolidation operation on account of
their objection to further continuance of
consolidation proceeding in the village
and also regard being had to their
sentiments
protest
and
objection,
a
recommendation
was
made
to
the
Director Consolidation to rescind the
notification under section 4 in exercise of
power under section 6 (1) of the U.P.
Consolidation of Holdings Act. From the
original papers filed before the Court by
the Learned Standing counsel, it would be
indicated that there was no mass protest
as alleged to warrant belief that the
village was so torn up as to render the
further consolidation operation difficult as
envisaged in ground (c) of Rule 17 of the
Rules and it was resolution bearing
signatures of few people of the village
which was in fact acted upon for making
recommendations
to
the
Director
Consolidation
for
cancellation
of
3 All] Suraj Bhan and others V. Director Consolidation, U.P., Lucknow and others
1067
notification issued under section 4 of the
Act. In my considered view, the
condition for cancellation of Notification
under section 4 was not satisfied as the
village does not appear to be so torn up by
party factions warranting action under
section 6 (a) of the Act. It would further
appear that the entire consolidation
proceeding had, in fact, reached near
completion
excepting
exchange
of
possession in between the respective
tenure holders, for as noticed above the
chak allotment proceeding having been
confirmed under section 23 of the Act in
respect
of
both
the
villages
the
consolidation proceeding had almost
reached completion without any let or
hindrance from any quarter. In this view
of the matter, I am scarcely convinced
that there was any valid justification for
cancellation of notification when stage of
confirmation
of
chak
allotment
proceeding had already been reached and
only
possession
remained
to
be
exchanged. In the case of Agricultural and
Industrial Syndicate V. State of U.P. 1976
RD 35, the Regional Deputy Director set
out
the
reasons
for
making
the
suggestions (1) the consolidation would
benefit hardly 25% tenure holders in view
of statistics furnished in respect of village
Aithal Buzurg (i) No. of tenure holders
237, (ii) Tenure holders whose land is
already at only one place...139, (iii)
Tenure holders land is situated in two
compact blocks...31, (iv) Tenure holders
whose land is divided into 3 or more
compact blocks...67. In respect -----
village Bukkanpur the statistics supplied
was (I) No. of tenure holders...255, (ii)
Tenure holders whose land is already at
only one place ...153, (iii) Tenure holders
whose land is situated in two compact
blocks...41 and (iv) Tenure holders whose
land is divided into 3 or more compact
blocks....61. It was further reasoned that
in actual practice, a number of tenure
holders have necessarily to be allotted
three chaks. It will thus be clear from the
above figures that hardly 25% tenure
holders will be benefited from the
consolidation as the holdings are already
quite compact in both these villages. The
second ground set out for seeking
cancellation of notification under section
4 was that both the villages are badly torn
up by party faction because about 400
persons are involved on different sides in
dispute regarding land which have still
not been decided. They claim rights
against each other and also against the
Gram Samaj. The matter is so hotly
contested that the parties are likely to go
up even upto the High Court. If decision
of the consolidation court are upset in writ
petition, dispute regarding rights will be
reopened probably some years after we
have
closed
the
consolidation
proceedings. This will create innumerable
problems in these villages. It would thus
appear that reasons set out for seeking
exercise of power under Section 6 of the
U.P.C.H. Act were well founded and are
not comparable with the reasons set out
here in this petition. From a close scrutiny
of the various reports submitted to the end
of the Director Consolidation acting on
which
the
Director
Consolidation
rescinded the notification, it would seem
that in the facts and circumstances, there
was no valid justification borne out from
the papers under scrutiny before the
Director Consolidation for rescinding the
notification in terms of ground contained
in Rule 17 (c) of the Rules considering
firstly, that the consolidation operation
had nearly reached completion after the
chak allotment proceeding had been
confirmed and what remained was to
exchange possession and secondly, the
1068 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
condition requiring exercise of power
under
Rule
17
(c)
of
the
U.P.
Consolidation of Holdings Rules was not
satisfied vis-a-vis the facts on record so as
to warrant the satisfaction on the line o
satisfaction contained in Rule 17 (c) of
the Rules that the village was so torn up
as
to
render
further
consolidation
proceeding difficult and also regard being
had to the fact that as a matter of fact, the
genesis of recommendations made was
the resolution of Land Management
Committee containing very few signatures
and no such statistics were supplied in the
instant case as in the case referred to
above so as to lend justification to the
exercise of power by the Director
Consolidation under section 6 of the U.P.
Consolidation of Holdings Act.

9. In the matter of conditional
legislation, decision of Apex Court in
Sundarjas Kanyalal Bhatija & Ors. V.
Collector, Thane Maharasthra and
others decided on 13.7.1989 may by
noticed. It was a case in which the
Government of Maharashtra issued a draft
notification under Section 3 (3) of the
Bombay
provincial
Municipal
Corporation Act, 1949 and thereby
proposed
the
formation
of
Kalyan
Corporation by merging of municipal
areas of Kalyan, Ambarnath Domoivali
and
Ulhasnagar.
The
proposal
was
resented to by the residents of the said
areas
and
many
objections
and
representations by persons, companies
and authorities including the municipal
bodies of Ambarnath and Ulhasnagar
were made. Subsequently, the draft
notification
was
challenged
in
the
Bombay High Court. The High Court
took the view that the decision to exclude
Ulhasnagar was taken by the State
abruptly and in an irrational manner and
that the decision was against the object of
the Act. The Apex Court in the aforesaid
decision
held
in
the
facts
and
circumstances that "No judicial duty is
laid on the Government in discharge of
the statutory duties. The only question to
be examined is whether the statutory
provisions have been complied with." As
stated supra, it would appear that the
conditions contained in Rule 17 (c) of the
U.P. Consolidation of Holdings Act were
not fully satisfied regard being had to the
details
contained
in
various
papers
produced before the Court and therefore,
in the circumstances, the notification
issued in exercise of power under section
6 of the U.P.C.H. Act is liable to be
quashed.

10. The next aspect to be noticed
here pertains to argument of the learned
counsel for the petitioner that the Director
Consolidation
while
passing
the
impugned order, assigned no reasons,
which shows that he merely endorsed the
report, submitted to his end and did not
apply his mind. One of the grounds of
attack in the petition was that the Director
Consolidation did not pass a reasoned
order. In connection with this submission,
ratio of the decision in Agricultural &
Industrial Syndicate Ltd. v. State of
U.P. 1976 RD 35 may be noticed. In this
petition, the petitioner sought striking
down section 6 of the U.P. Consolidation
of
Holdings
Act,
1953
as
being
unconstitutional and also a writ of
certiourari quashing the order of the
Director Consolidation, Dwelling on the
power of Director Consolidation, a
Division Bench of this Court in the above
noted decision observed that "when the
Director of Consolidation issues a
notification under section 4 or 6 of the
Act, he performs neither a quasi
3 All] Suraj Bhan and others V. Director Consolidation, U.P., Lucknow and others
1069
judicial function nor exercises any
administrative power but performs a
legislative function. It was further
observed that to judge the validity of
the notification the court must apply
the same tests as it would apply to a
piece of legislation. Just at it cannot be
contended that any legislative authority
should give reasons in support of its
legislation or give a hearing to those
affected before proceeding to legislate
the Director of Consolidation also
cannot be required to give either a
reasoned order or to accord a hearing
to the tenure holders concerned before
issuing a notification under section 6 of
the Act."

The Court further observed as under:

"If the High Court allows the writ
petition and quashes the notification
issued under Section 6, the result would
be in substance a direction to the State
Govenment to continue the consolidation
proceedings in the area in question inspite
of the fact it has not considered it fit to do
so in exercise of powers vested in it by
the legislature. As the notifications under
Section 4 and 6 are issued by the State
Government in exercise of conditional
legislative
powers,
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
powers
of
conditional
legislation."

11. In Sunderjas Kanyalal Bhatija
and
others
v.
Collector,
Thane
Maharasthra and others delivered on
13.7.1989, the Apex court was dealing
with the matter of conditional legislation
and was seized of similar question as
involved in the present case. The
quintessence of what was held by the
Apex Court is that the Rules of natural
justice are not applicable to legislative
activity plenary or subordinate. The
procedural requirement of hearing is not
implied in the exercise of legislative
posers unless hearing was expressly
prescribed. It was further held that the
High Court was in error in directing the
Government to hear the parties who are
not entitled to be heard in law.

12. From a close scrutiny of the ratio
flowing from the above decisions, it
would crystallize that no reasoned or
speaking order need be passed by the
Director Consolidation. The power of the
Director
Consolidation
to
rescind
notification has to operate within the
periphery of conditions contained in Rule
17 of the Rules on his subjective
satisfaction. In view of the above, the
contention of the learned counsel that no
reasons have been assigned, cannot
sustained.

13. In the above conspectus, the writ
petition succeeds and is allowed and
inconsequence, the impugned order dated
2.9.2005 (Annexure 10 to the writ
petition) is quashed. The matter may be
remitted to the Director Consolidation for
decision afresh in the light of the facts
available on record or to ascertain the fact
otherwise in accordance with law whether
condition (C) of Rule 17 of the Rules
framed under the U.P. Consolidation of
1070 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Holdings
Act
is
satisfied
before
exercising power under section 6 of the
U.P.C.H. Act.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.5.2006

BEFORE
THE HON'BLE DR.B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 30115 of 2006

Smt. Jagannathiya

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

Counsel for the Petitioner:
Sri M.A. Haseen

Counsel for the Respondents:
C.S.C.

Code of Civil Procedure-Order 39 Rule 2A-Violation of Interim Injunction orderrejection of application on ground after
passing the order-duty of civil court
comes to an end-it is for administration
of Police to ensure its compliance-heldsuch casual and indifferent attitude of
the
Court
below-shocking
beyond
imagination-Civil
Court
to
issue
necessary direction to S.P. concern to
take
all
measures
to
ensure
the
compliance.

Held: Para 17 and 22

In such a fact-situation the civil court
must ensure by all means that interim
order passed by it is complied with and
for
that
purpose,
it
should
issue
necessary instructions to the police if the
facts
so
warrant,
our
conscious
is
shocked and it is beyond our imagination
as how the trial court and appellate
court could take such a casual and
indifferent attitude.

In the fact-situation we have no option
but to direct the civil court to issue
necessary orders to the Superintendent
of
Police,
Kaushambi
to
take
all
measures to ensure the compliance of