Devendra Mohan and Others Vs. Dy. Director of Consolidation, Varanasi and Others

Devendra Mohan and Others vs Dy. Director of Consolidation, Varanasi and Others

Type Court Judgment Court Allahabad Decided Mar 23, 2011

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https://sooperkanoon.com/case/917584

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Citation: sooperkanoon.com/917584
Court: Allahabad High Court
Judge: Amreshwar Pratap Sahi,J.
Decided On: Mar 23, 2011
Case Number: WRIT - B No. - 57901 of 2010
Subject: Tenancy

Case Summary

AI-generated summary - not the official court judgment text.

[ALTAMAS KABIR; CYRIAC JOSEPH, JJ] - Karnataka Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986 Rule 6 -- All the above-mentioned appeals arise out of the order dated 10th October, 2010, passed by the Speaker of the Karnataka State Legislative Assembly on Disqualification Applic...

Key legal issue: Tenancy
Acts & sections: U.P. Consolidation of Holdings Act - Section 5 (C)

Parties & Advocates

Appellant / Petitioner

Devendra Mohan and Others

Advocate Jeevan Prakash Sharma, Adv

Respondent

Dy. Director of Consolidation, Varanasi and Others

Advocate C.S.C.; H.N. Shukla; Manvendra Nath Singh; R.R. Shukla, Advs

Legal References

Acts: U.P. Consolidation of Holdings Act - Section 5 (C)

Excerpt

.....in the disqualification application filed by shri yeddyurappa. mr. nariman submitted that the speaker had applied two different yardsticks as far as the appellants and shri m.p. renukacharya and shri narasimha nayak are concerned, despite the fact that they too had written identical letters to the governor withdrawing support to the government led by shri yeddyurappa. mr. nariman submitted that once shri m.p. renukacharya and shri narasimha nayak had written to the governor expressing their decision to withdraw support to the government headed by shri yeddyurappa, the provisions of paragraph 2(1)(a) of the tenth schedule came into operation immediately and the speaker was no longer competent to reverse the same. mr. nariman submitted that at every stage the speaker had favoured shri yeddyurappa and even though rule 7(2) of the 1986 rules provided for the dismissal of the petition which did not comply with the requirements of rule 6, as in the present case, the speaker did not do so. reiterating mr. nariman's submissions, mr. rao submitted that withdrawal of support by the appellants to the government led by shri yeddyurappa did not amount to voluntarily relinquishing the membership of the bjp since the government led by a particular leader and the political party are not synonymous. mr. rao submitted that in blatant disregard of the above-mentioned rules, the speaker had entertained the defective petition filed by shri yeddyurappa in complete disregard of rules 6 and 7 of the 1986 rules. mr. rao pointed out that paragraph 100 of the decision in kihoto hollohan's case (supra) declares the speaker or the chairman acting under paragraph 6 of the tenth schedule to be a tribunal. mr. sorabjee submitted that after detailed replies had been filed by the appellants, a full- fledged hearing had been given to them and hence the appellants did not suffer any prejudice on account of the procedure adopted by the speaker in disposing of shri yeddyurappa's..........he further submits that the consolidation proceedings are still pending and therefore in order to protect the status of the property, it was necessary to pass the order.6. learned standing counsel also supports the impugned order.7. having heard learned counsel for the parties it is evident that no new constructions have been raised and which fact was not disputed. the real dispute is with regard to the possession of the constructions over the plot. the settlement officer consolidation had no authority to pass an interim order on 24.9.2009 in relation to the constructions that were already in existence prior to the commencement of the consolidation operations. the deputy director of consolidation has completely over looked this aspect of the matter and the facts existing on record. in such a situation it was a clear case with regard to a dispute relating to the possession of the constructions over the plot in question. the respondent is claiming possession and therefore it is open to the respondent to file a civil suit and pray for an injunction. the proceedings before the settlement officer consolidation are without jurisdiction being coram non judice. learned counsel for the respondent has been unable to point out any provision contained in section 5(c) of the 1953 act to support the authority of the settlement officer consolidation to assume jurisdiction for the relief actually claimed. the writ petition deserves to be allowed.8. accordingly the order dated 24.9.2009 as well as the impugned order dated 31.8.2010 are quashed. all proceedings before the settlement officer consolidation alleged to have been filed under provisions of section 5 (c) also stands annulled. it is the respondent to approach the civil court for claiming any such rights as raised before the settlement officer consolidation.9. the writ petition is allowed. no order as to costs.

Full Judgment

1. Heard Sri Jeevan Prakash Sharma learned counsel for the petitioner and Sri H.N.Shukla for the respondent no.4 and the learned standing counsel for the respondent nos. 1,2 and 3. Learned standing counsel inspite of time having been granted has not filed any counter affidavit.

2. Learned counsel for the parties agree that the writ petition be disposed of finally at this stage

3. The issue raised before this Court is that the proceedings before the Settlement Officer Consolidation under Section 5-C of the U.P.C.H.Act were without jurisdiction and as such the Deputy Director of Consolidation has committed a manifest error by upholding the order dated 24.9.2009.

4. Learned counsel for the petitioner submits that the order impugned is erroneous in law inasmuch the Settlement Officer Consolidation could not have assumed the jurisdiction of the Civil Court for granting an interim injunction of the nature as prayed for. He further submits that the construction which was existing was not disputed as such the same could not be a subject matter of proceedings under the U.P.C.H.Act, inasmuch as the construction exists prior to the notification under Section 5 of the Act. For this he has invited the attention of the Court to C.H.Form 18 to contend that at the time of survey it was indicated that the disputed land was Abadi and besides the road where a market is held. Therefore the respondents are trying to dispossess the petitioner on the strength of the order which was obtained from the Settlement Officer Consolidation on 24.9.2009. In the proceedings under Section 5 (c) the Settlement Officer Consolidation pass an order which has been maintained by the Deputy Director of Consolidation by the impugned order dated 31.8.2010 which deserves to be set aside.

5. Sri H.N.Shukla learned counsel for the respondent contends that it is the petitioner who is trying to dispossess the answering respondent from theproperty. He further submits that the consolidation proceedings are still pending and therefore in order to protect the status of the property, it was necessary to pass the order.

6. Learned standing counsel also supports the impugned order.

7. Having heard learned counsel for the parties it is evident that no new constructions have been raised and which fact was not disputed. The real dispute is with regard to the possession of the constructions over the plot. The Settlement Officer Consolidation had no authority to pass an interim order on 24.9.2009 in relation to the constructions that were already in existence prior to the commencement of the consolidation operations. The Deputy Director of Consolidation has completely over looked this aspect of the matter and the facts existing on record. In such a situation it was a clear case with regard to a dispute relating to the possession of the constructions over the plot in question. The respondent is claiming possession and therefore it is open to the respondent to file a civil suit and pray for an injunction. The proceedings before the Settlement Officer Consolidation are without jurisdiction being coram non judice. Learned counsel for the respondent has been unable to point out any provision contained in Section 5(c) of the 1953 Act to support the authority of the Settlement Officer Consolidation to assume jurisdiction for the relief actually claimed. The writ petition deserves to be allowed.

8. Accordingly the order dated 24.9.2009 as well as the impugned order dated 31.8.2010 are quashed. All proceedings before the Settlement Officer Consolidation alleged to have been filed under provisions of Section 5 (c) also stands annulled. It is the respondent to approach the Civil Court for claiming any such rights as raised before the Settlement Officer Consolidation.

9. The writ petition is allowed. No order as to costs.

Same Court & Year Allahabad · 2011 Same Parties Devendra Mohan and Others vs Dy. Director of Consolidation, V... Same Subject Tenancy Same Judge Amreshwar Pratap Sahi,J. Acts & Sections U.P. Consolidation of Holdings Act - Section 5 (C)

Tenancy