SWAMI DIN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) FIFTY seven petitioners, all residents of village Samdabad Kubahhati, district Fatehpur, have filed this joint petition challenging the notification dated 13th May, 1974 issued under Section 4(2) of the U. P. Consolidation of Holdings Act, 1954, herein after referred to as 'the Act'. The notification purports to recommence the consolidation operations in the aftermentioned village. The petitioners contend that there is no provision in the Act for publication of a notification under Section 4(2) of the Act after the close of consoli dation operations under Section 52 of the Act. It was stated that the first notification under Section 4(2) was published on the 2nd October, 1956, consequent upon which consolidation operations commenced in the village. The consolidation operations came to a close on the publication of a notification under Section 52 of the Act on the 12th April, 1961. The impugned notification dated 13th May, 1974 published under Section 4(2) of the Act was termed to be wholly without juris diction, illegal and invalid. The petitioners have further contended that the notification in the present case was not issued by the State Government, but by the Director of Consolidation and it militated against the provisions of Section 4(2)(a) of the Act. Thirdly, it was contended that the recommencement of consolidation operations and reservations of chaks was mala fide and was done at the instance of respondent no. 2, Shri Ram Kishore Misra, who was alleged to be a Senior Police Officer posted at Lucknow, capital of the State Govern ment. He had taken advantage of the proclamation of Emergency to influence both Government officials at Lucknow and the consolidation officials in the village to do favour to him and to his relatives. The learned Standing Counsel contended that there was no pro hibition under the Act for the State Government to issue successive notifications under Sections 4(2) of the Act. Further, the impugned notification was a valid notification having been issued at the behest of the State Government by the Director of Consolidation, who had been delegated powers under the provisions of Section 44 of the Act. The al legations of mala fide were squarely refuted, and it was stated that no allegation of mala fide had been made against the Director of Con solidation or any other official at Lucknow, or even in the village. Lastly, it was contended that the notification in the present case was issued on the 13th May, 1974 and the consolidation operations had continued and even possession had been delivered by the time the writ petition had been filed in this Court. There were laches on the part of the petitioners and they were disentitled to any relief in this writ petition on this ground alone. Learned counsel for the respondent no. 2 refuted the allegations of mala fide on the part of respondent no. 2. He contended that although respondent no. 2 was a police officer posted at Lucknow, he had no say in the matter of recommencement of consolidation operations or in the recarvation of chaks. He denied all allegations of mala fide made against respondent no. 2. It is well settled that the granting of relief under Article 226 of the Constitution is discretionary. It is also well settled that where there are laches on the part of the petitioner, the Court may not exercise the discretion in favour of the petitioner. It is true that in the present case, the writ petition has been filed more than two years after the publication of the impugned notification under Section 4(2) of the Act. The petitioners have tried to explain the delay by saying that they had been meeting the local M. L. As., Minister of Revenue and other officials and impressing upon them that the village did not require any fresh consolidation operation and the proceedings were stayed from time to time, and ultimately when the consolidation operations restarted some time in July 1976, they had to come to this Court in August, 1976. It is no doubt true that the writ petitions are dismissed on the ground of laches but what is essential to be determined is whether the proceeding initiated upon the notification dated 13th May, 1974 is a valid proceed ing. If the proceedings are without jurisdiction, then this Court will not allow such proceedings to be operative. It will, therefore, be necessary to consider the main question in this writ petition viz. whether the notification under Section 4(2) of the Act dated 13th may, 1974 is a valid notification. Section 4(2)(a) of the Act reads as follows: "When the State Government decides to start consolidation operations, either in an area covered by a declaration issued under sub-section (1) or in any other area, it may issue a notification to this effect" This sub-section permits the State Government to start consoli dation operations both in an area in respect of which a notification under sub-section (1) of Section 4 of the Act had already been issued and in such areas where such a notification has not been issued. It further stipulates that whenever the State Government decides to start consolidation operations in an area, it has to issue a notification to the above effect. There is no provision in the Act which prohibits the State Government from recommencing consolidation operations in an area which has already been the subject of consolidation operations. Section 52(1) of the Act is relevant in the present case. It reads as follows: " Sec. 52. Close of consolidation operations.-(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 opera tions have been closed in the unit and village or villages forming part of the unit shall then cease to be under consolidations operations: 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." Section 52 indicates that after the preparation of the fresh maps and records under Section 27(1) of the Act, the Government has to issue a notification in the official Gazette declaring that the consolidation operations have been closed in the village and such villages thereafter shall cease to be under consolidation operations. It is very very signi ficant to notice the use of the words 'consolidation operations' both in Section 52 and Section 4(2)(a) of the Act. The consolidation operations which were started under Section 4(2)(a) came to an end under Section 52 of the Act. It is only the "consolidation operations" which came to an end on the publication of a notification under Section 52 of the Act. There is nothing in Section 52 or in any other provision of the Act which stipulates that after the consolidation operations have ceased to be effective in the village, no fresh consolidation operations can take place in that village. There is nothing in the Act to indicate the above. Learned counsel for the petitioners contended that prior to the Amendment Act dated 18th November, 1976 (the U. P. Act 35 of 1976), there was no provision for starting the consolidation operations afresh in a village in respect of which a notification under Section 52 has been published earlier. Section 4-A of the Act reads as follows: "Section 4-A. (1) Where the State Government is of opinion that in the case of a district or part thereof in respect of which a noti fication has already been issued under Section 52 it is expedient in public interest so to do, it may make a declaration in the Gazette that such district or part thereof may again be brought under consolidation operation: Provided that no such declaration shall be issued within ten years from the date of the notification referred to in the said section. (2) The provisions of this Act shall mutatis mutandis apply to every notification issued under sub-section (1) as they apply to a noti fication under Section 4." This section was brought on the statute book on the 18th November, 1976. The impugned notification in the present case is dated 13th May, 1974. The provision of U. P. Act 35 of 1976 did not make the provisions of Section 4A of the Act to be retrospective in operation. Strictly speaking. Section 4A is not attracted to the facts of the present case, but the contention of the learned counsel was that the provisions of Section 4A show that the framers of the Act originally had not contemplated at all any provision for re-starting consolidation operations after the publication of the notification under Section 52 of the Act. In other words, his contention was that the intention of the legislature was not to permit the State Government to issue notification for starting consolidation operations afresh in a village. According to him, there was no such provision in the Act prior to its amendment in 1976. The learned Standing Counsel, on the other hand, contended that the power to start consolidation operations afresh was there in the Act from before under Section 4(2) of the Act, and the provisions of Section 4A only trade the position clear and put embargoes on the exercise of such powers. One of the restrictive clauses was that the State Government had to be satisfied that it was expedient in public interest to start consolidation operations afresh in the village notwith standing the publication of a notification under Section 52 of the Act in respect of that village. The second stipulation was that no fresh consolidation operations could take place in the village within ten years of the publication of the notification under Section 52 of the Act. I find considerable force in the contention of the learned Standing Counsel. As indicated above, there is no prohibition against restart ing the consolidation operations in a village where a notification under Section 4(1) of the Act had been issued earlier. Where a notification under Section 4(1) has been issued, the State Government may issue a notification under Section 4(2) of the Act to commence the consolidation operations afresh. There was nothing in the Act prohibiting successive notifications under Section 4(2) of the Act in respect of the same village or issuance of a fresh notification under Section 4(2) of the Act. The introduction of Section 4A only seeks to limit the power of the State Government re-introducing the consolidation operations in a village within a period of ten years from the date of the publication of a noti fication under Section 52 of the Act and requires the satisfaction of the State Government that it was expedient to do so in public interest. It appears that the provisions of Section 4A were brought on the statute book so that there were clear guidelines for the exercise of power for starting the consolidation operations afresh in a village even after the publication of the notification under section 52 of the Act. It was contended that the purpose of the consolidation, as defined in the Act, is to re-arrange all holdings in a unit among several tenureholders in such a way as to make their respective holdings more compact. This is correct but if in the course of years a situation emanates which requires fresh consolidation operations, then it can certainly be done by issuing a fresh notification under Section 4(2) of the Act. If after several years of the consolidation operations it was found that due to exchange, devolution of interest or partition etc., a situation had arisen where fresh consolidation was called for, it could certainly be done by issuing a fresh notification under Section 4(2) of the Act. I find no bar anywhere in the Act against such an Act. It would depend whether a particular village needed fresh consolidation operations or not. In the present case, the Gaon Sabha had passed a resolution in the year 1969 calling for fresh consolidation operations in the village. The passing of this resolution has been seriously challenged by the petitioners but it is not in the purview of writ jurisdiction to decide disputed questions of fact. It was further contended that unless a notification under Section 4(1) of the Act was published, notification for the commencement of the consolidation operations under Section 4(2) of the Act could not be issued. This is wholly misconceived. The windings of Section 4(2)(a) clearly indicate that a notification could be published both in respect of an area for which a notification under Section 4(1) had been issued as well as for areas for which no notification under sub-section (1) of Section 4 of the Act had been issued. In the present case, however, a notification under Section 4(1) of the Act was issued long before the notification under Section 4(2) of the Act was issued. The purport of the notification under Section 4(1) is merely to permit the officials "to enter upon any survey in connection with rectangulation or otherwise, and to take levels of any land in such area; to fix pillars in connection with rectangulation; and to do all acts necessary to ascertain the suit ability of the area for consolidation operations." It was contended that all these acts were necessary before any consolidation operation could be started under sub-section (2) of Section 4 of the Act. It would be noticed in the present case that a notification under Section 4(1) of the Act had been initially issued. That notification does not lapse. What comes to a close on the publication of a notification under Section 52(1) of the Act is the notification under Section 4(2) of the Act, namely, it brings to a close the consolidation operations. The publication of notification under Section 52(1) does not have the effect of wiping out the notification published under Section 4(1) of the Act. Learned counsel contended that unless the officials made a survey of the land by entering the land or the holdings, it would not be possible to carry out the consolidation operations as stipulated under the Act. It may be stated here that Section 45 of the Act gives the consolidation officials power to enter upon any land for the purpose of survey and determination. Therefore, the officials need not depend entirely on the provisions of Section 4(1) of the Act for making surveys of the land. They can do so even under the powers conferred upon them by Section 45 of the Act. Another contention was that the notification in the present case was published not by the State Government but by the Director of Consolidation, who had no jurisdiction to do so. This contention is again misconceived. Section 44 of the Act empowers the State Govern ment to delegate to the Director of Consolidation any of the powers conferred upon the State Government by this Act. The fact that the State Government by a notification had delegated the powers to the Director of Consolidation is admitted to the petitioners. The Director of Consolidation could, therefore, issue a notification under Section 4(2) of the Act. I, therefore, see no illegality or invalidity in such a noti fication. For the reasons given above, I am of the opinion that the notification issued under Section 4(2) of the Act was a valid noti fication. I may now consider the question of laches on the part of the petitioners in filing the writ petition in this Court. The notification was issued on the 13th May, 1974 and the writ petition was filed in August, 1976. The petitioners were aware of the notification in 1975. They had met their local legislators and had also met the Revenue Minister and the State Minister for Revenue and impressed upon them to get the notification withdrawn. The notification was not withdrawn, and the consolidation operations, continued. The writ petition was filed only after the proceedings had gone on for some time. Even after filing of the writ petition the proceedings had gone on, recarvation of chaks had taken place and possession had been delivered to the parties con cerned in respect of some of the parties and chaks. A stay order was obtained from this Court on April 28, 1977. There is no manner of doubt that the impugned notification had been challenged at a late stage and after the proceedings had continued for a considerable period of time. There are allegations on behalf of the State Government that the petitioners had even participated in the proceeding. This is again a circumstance against the exercise of discretion in favour of the petitioners. If the petitioners were aggrieved by any particular order of the Consolidation Officer, they had the remedy under the law by way of appeal or revision. It would, thus, be seen that the petitioners could seek their remedies against wrong and illegal orders passed by any of the consolidation authorities during the consolidation operations. The various instances given in the writ petition about illegalities or impro prieties committed under the Act can certainly be the cause of action for filing of an appeal or revision under the provisions of the Act. These cannot be considered in this writ petition. I find that there has been considerable delay and laches on the part of the petitioners in the filing of the writ petition and as such the writ petition is liable to be dismissed on this ground alone. in regard to the question of mala fides, I am not at all satisfied that the case of mala fides has been made out or proved. The allega tion that the entire proceedings were started and brought about at the instance of respondent no. 2 alone is unacceptable. There are no allegations of mala fides against the Director of Consolidation who issued the notification nor are there any allegation of mala fides against the State Government in delegating its power to the Director of Con solidation. It is inconceivable that one police officer would wield such power so as to persuade the State Government to delegate its power in favour of the Director of Consolidation to issue a fresh notification under Section 4(2) of the Act. The contention that on the proclamation of Emergency the police officer, respondent no. 2, became powerful is again misconceived. When the notification was issued in May, 1947 there was no proclamation of internal Emergency. The proclamation of internal Emergency was made on the 25th July, 1975. The challenge in the present writ petition is to the impugned notification dated 13th May, 1974. That was before the proclamation of Emergency. If the police officer and his relatives were benefited by any illegal act of any consolidation official, there was sufficient remedy under the law to correct the position by way of appeal or revision. It is very easy to make allegations of mala fides, but it is not so easy to substantiate the same. I do not find any case of mala fide made out in the present case. For the reasons given above, this writ petition fails and is dis missed with costs.