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High Court Of Allahabad
K. P. Singh, J.
Raja Ram : Appellant
Versus
Dy. Director Of Consolidation U. P. Lucknow Camp At Agra : Respondent
Civil Misc. Writ Petition No. 2534 of 1975
Decided On : Apr 08, 1982
U. P. CONSOLIDATION OF HOLDINGS ACT - SECTION 52(2) AND RULE 109-A - INTERPRETATION - APPLICATION FOR GIVING EFFECT TO ORDER PASSED BEFORE DE-NOTIFICATION - JURISDICTION OF CONSOLIDATION AUTHORITIES - HELD, NO JURISDICTION.
Fact of the Case:
After de-notification under Section 52(1) of the U. P. Consolidation of Holdings Act, the contesting opposite parties moved an application for giving effect to an order dated 23-7-1965 whereby their father was recognized as co-tenant of the disputed land along with the petitioners. The Consolidation Officer made a reference and the revisional court directed for making reference and considering proceedings for partition. Aggrieved by the judgment of the consolidation authorities, the petitioners approached the High Court under Article 226 of the Constitution.
Finding of the Court:
The High Court held that the consolidation authorities had no jurisdiction to entertain the application for giving effect to the order dated 23-7-1965 as no case was pending on the date of de-notification under Section 52(1) of the U. P. Consolidation of Holdings Act. The revisional court had exceeded its jurisdiction in passing the impugned order dated 29-10-1974, without considering whether the contesting opposite parties could move any application under Rule 109 of the U. P. Consolidation of Holdings Act after de-notification.
Issues: Whether the consolidation authorities had jurisdiction to entertain the application for giving effect to the order dated 23-7-1965 after de-notification under Section 52(1) of the U. P. Consolidation of Holdings Act.
Ratio Decidendi: The provisions of Section 52(2) of the U. P. Consolidation of Holdings Act read with Rule 109-A of the said Act indicate that the cases or proceedings should be pending under the Act on the date of issue of de-notification under Section 52 of the Act. In the present case, the order dated 23-7-1965 sought to be given effect to was passed at least seven years before the date of Notification under Section 52 of the U. P. Consolidation of Holdings Act. The application to give effect to that order was moved after the de-notification. Since no period of limitation has been prescribed for moving an application under Rule 109-A, it appears that the contesting opposite parties adhered to the Miscellaneous application.
Final Decision: The writ petition was allowed, the impugned judgment of the revisional court dated 29-10-1974 was quashed, and the proceedings before the Consolidation Officer under Section 12 were dropped. It was clarified that in a partition suit filed by the contesting opposite parties, the bar of Section 49 would not apply.
K. P. Singh, J.
1. BY means of this writ petition the petitioners have prayed for quashing the order passed by the Consolidation Officer on 12-11-1973 and by the revisional court on 29-10-1974.
2. THE Writ petition arises out of proceedings under Rule 109-A of the U. P. Consolidation of Holdings Act. THE aforesaid Rule has been framed concerning Section 52 of the said Act. THE provisions of Section 52 of the aforesaid Act reads as below :
"(0 As soon as may be after fresh maps and records have been prepared under sub-section (1) of section 27, the State Government shall issue a notification in the Official Gazette that the consolidation operations have been closed in the unit and village or villages forming part of the unit shall then cease to be under consolidation operation : Provided that the issue of the notification under this section shall not affect the powers of the State Government to fix, distribute and recover the cost of operations under this Act. (2) Notwithstanding anything contained in sub-section (1), any order passed by a court of competent jurisdiction in cases or writs filed under the provisions of the Constitution of India, or in cases or proceedings pending under this Act on the date of issue of the notification under sub-section (1), shall be given effect to by such authorities as may be prescribed and the consolidation operations shall, for that purpose be deemed to have not closed."
It is not necessary to mention sub-clause (3) of the aforesaid section for the purposes of this case.
3. IT is not disputed before me that after de-notification under Section 52 (1) of the U. P. Consolidation of Holdings Act the contesting opposite parties moved an application for giving effect to the order dated 23-7-1965 whereby the father of the opposite parties 4 to 7 in the present writ petition was recognized as co-tenant of the disputed land alongwith the petitioners. The Consolidation Officer made a reference through his order dated 12-11-1973 and the revisional court directed through its order dated 29-10-1974 for making reference and considering proceedings for partition. Aggrieved by the judgment of the consolidation authorities the petitioners have approached this Court under Article 226 of the Constitution.
4. THE learned counsel for the petitioners has contended before me that after de-notification under section 52 (1) of the UP CH Act, nothing was pending on the date of the aforesaid de-notification, hence no proceedings could be entertained by the consolidation authorities in the present case. According to the learned counsel for the petitioners the contesting opposite parties have already filed a suit for partition under section 176 of the UP ZA and LR Act but in order to get unfair advantage they have invoked the jurisdiction of the consolidation authorities to get partition indirectly after such a lapse of time.
The learned counsel for the contesting opposite parties has submitted in reply that if the contesting opposite parties did not adhere to the proceedings giving rise to the present writ petition the claim of the opposite parties shall stand barred by the provisions of Section 49 of the U. P. Consolidation of Holdings Act. According to him the only remedy open to the contesting opposite parties was to take recourse to Rule 109 of the U. P. Consolidation of Holdings Rules. He has placed reliance upon the ruling reported in Shyam Narain Rai v. Deputy Director of Consolidation Balia, 1981 RD 307 and has also placed reliance on a decision of a learned Single Judge of this Court in Civil Misc. Writ Petition No. 7679 -of 1972 Surendra Kumar Singhal v. Board of Revenue.
5. I have considered the contentions raised on behalf of the parties. The provisions of Sec. 52 (2) of the U. P. Consolidation of Holdings Act read with Rule 109-A of the said Act indicate that the cases or proceedings should be pending under the Act on the date of issue of de-notification under Sec. 52 of the Act. In the present case i
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