Raja Ram and Others vs The Dy. Director of Consolidation and Others

K.P. Singh, J.—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.

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:

(1) 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.

It is not disputed before me that after denotification u/s 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.

The learned Counsel for the Petitioners has contended before me that after denotification u/s 52(1) of the UP CH Act, nothing was pending on the date of the aforesaid denotification, 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 u/s 176 of the UP ZA and LR Act but In order to get unfair advantage they have invoiced 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 Surendra Kumar Singhal v. Board of Revenue Civil Misc. Writ Petition No. 7679 of 1972.

I have considered the contentions raised on behalf of the parties. 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 denotification u/s 52 of the Act. In the present ease it is noteworthy that the order dated 23-7-1965 sought to be given effect to was passed at least seven years before the date of Notification u/s 52 of the U.P. Consolidation of Holdings Act. The application to give effect to that order was moved after the denotification. 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. Through annexure I attached with the writ petition the contesting opposite parties wanted the entry into the consolidation record according to the order dated 23-7-1965 and per order dated 23-7-1965 the contesting opposite party has been held as co-tenure holder. The contesting opposite party has filed a suit also for partition u/s 176 of the UP ZA and LR Act. It is not very clear whether any partition proceedings took place during the consolidation operation or not but if the order dated 23-7-1965 is given effect to, the contesting opposite parties would be only co-sharers and they have already filed a suit for partition. The apprehension of the learned Counsel for the opposite parties before me is that the bar of Section 49 would arise if the entry is not made in consonance with the order dated 23-7-1965, In my opinion the apprehension is, ill-founded. If the contesting opposite parties are co-tenure holders on the basis of the decision given by the consolidation authorities, they can press their claim and Section 49 of the U.P. Consolidation of Holdings Act would not stand in the way of a partition suit by a co-tenure holder. The unreported ruling does not apply to the facts and circumstances of the present case as the question of denotification was not under consideration before the learned Single Judge and in that case one could get relief before the consolidation authorities but in the present case due to denotification the contesting opposite parties could not get an effective relief as desired by them.

In accordance with Rule 109-A read with Section 52(2) of the U. P. Consolidation of Holdings Act the contesting opposite parties could not approach the consolidation authorities for getting requisite entry as no case was pending on the date of denotification u/s 52(1) of the U. P. Consolidation of Holdings Act. The proceeding giving rise to the present writ petition is wholly without jurisdiction and deserves to be quashed. The ruling reported in 1981 R. D. page 307 is inapplicable to the facts and circumstances of the present case. In that case no question of applicability of Rule 109 was involved, hence that case does not throw any light upon the question under my consideration in the present writ petition. The revisional court through the impugned judgment dated 29-10-1974 has tried to give effect to the order dated 23-7-1965. I think it has exceeded its jurisdiction in passing the impugned order dated 29-10-1974, without considering the question whether the contesting opposite parties could move any application under Rule 109 of the U. P. Consolidation of Holdings Act in the present case. In my opinion the contesting opposite parties could not invoke the jurisdiction of the consolidation authorities under Rule 109 of the Act after denotification u/s 52 of the U. P. Consolidation of Holdings Act on the facts and circumstances involved in the present case.

In the result, the writ petition succeeds and the impugned judgment of the revisional court dated 29-10-1974 is hereby quashed and the proceedings before the Consolidation Officer u/s 12 Bhojraj v. Rajaram is hereby dropped. It is made clear that in a partition suit filed by the contesting opposite parties the bar of Section 49 would not apply. Parties are directed to bear their own costs.