The court upheld the Consolidation Commissioner's order, affirming that the provisions of Rule 17 of the U.P. C.H. Rules are guidelines, not mandatory, allowing for subjective discretion in consolidation proceedings.

JUDGMENT

Chandra Kumar Rai, J.

Heard Sri. Awadhesh Kumar Malviya, learned counsel for the petitioners, Sri. R.C. Singh, learned Senior Counsel assisted by Sri. N.D. Shukla, learned counsel for the contesting respondents and Sri. Ashutosh Kumar Rai, learned Addl. C.S.C. for the state-respondents.

2. Brief facts of the case are that the petitioners along with other villagers of the village Maudhiya, Pargana + Tehsil Jakhaniya, Ghazipur filed an application before the Consolidation Commissioner, U.P., Lucknow on 13.9.2006 with the prayer that provisional consolidation scheme be taken place afresh or the village in question be notified under Section 6 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the "U.P. C.H. Act") in order to protect the land belonging to Gaon Sabha. On the aforementioned application dated 13.9.2006, an objection was invited by respondent no.1 from his subordinate authorities vide order dated 22.9.2006. One Smt. Sona Devi filed an application along with order dated 2.3.2007, passed by this Court in Writ Petition No.11742/2004 before respondent no.1 on which an explanation was asked from the authorities, accordingly, the consolidation authorities have jointly submitted a report on 19.5.2007 before respondent no.1. On the basis of the aforementioned report, the Settlement Officer of Consolidation has also submitted his report. Respondent no.2/Deputy Director of Consolidation, submitted his report on 4.6.2007 before respondent no.1/Consolidation Commissioner. On the basis of the report of the Deputy Director of Consolidation dated 4.6.2007, respondent no.1/Consolidation Commissioner passed the impugned order dated 5.7.2007, directing to start demarcation proceeding as well as delivery of possession to the tenure holders of the village. Hence, this writ petition on behalf of the petitioner, challenging the impugned order dated 5.7.2007, passed by respondent no.1/Consolidation Commissioner as well as for mandamus, directing the respondents not to demarcate and not to initiate the proceeding of delivery of possession regarding public utility lands recorded in the name of the gaon sabha or to restart the consolidation proceeding from the stage of Assistant Consolidation Officer after removing false and fictitious entry from the revenue papers.

3. This Court vide order dated 2.8.2007 entertained the matter, issued notice to respondent no.5, inviting counter affidavit from state as well as from respondent no.5 and granted interim protection, staying the operation of the impugned order dated 5.7.2007, passed by respondent no.1/Consolidation Commissioner as well as the implementation of provisional consolidation scheme was ordered to be kept in abeyance.

4. In pursuance of the order dated 2.8.2007, State has filed his counter affidavit and petitioner has filed his rejoinder affidavit.

5. Counsel for the petitioner submitted that in view of the report submitted on 19.5.2007, it is fully demonstrated that proceeding of delivery of possession could not be initiated in the village, without correcting mass of false and fictitious entry regarding public utility plots but the impugned order has been passed by respondent no.1/Consolidation Commissioner in arbitrary manner. He further submitted that the impugned order is wholly perverse and against the settled provisions of U.P. C.H. Act. He further submitted that delivery of possession of the village is pending under Section 24 of the U.P. C.H. Act and in view of the report of the consolidation authorities, the village in question should be notified under Section 6(1) of the U.P. C.H. Act read with Rule 17 of the U.P. C.H. Rules, 1954. He further submitted that two options are open in the matter, one is either to restart the consolidation proceeding from the stage of Assistant Consolidation Officer or to notify the village in question under Section 6(1) of the U.P. C.H. Act. He also submitted that earlier, committee was duly constituted for making spot inspe