Dismissed

Kismata v. State of U.P. and 8 Others

Allahabad HC8 Oct 2020WRIB/1078/2020

Case brief

AI extract

What is this about?

The High Court dismissed the petitioner's writ petition seeking to quash an order passed by the Consolidation Officer under Section 42-A of the U.P. Consolidation of Holdings Act. The Court held the petition not maintainable as the petitioner had already filed a restoration application as an alternative remedy, prohibiting simultaneous claims.

What did the court decide?

The writ petition seeking quashing of the order dated 23.10.2019 was dismissed as not maintainable.

Kismata Vs State of U.P. and 8 Others — Land Acquisition | Allahabad HC (2020)

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Reserved on 05.10.2020

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Delivered on 08.10.2020

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Court No. - 9

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Case :- WRIT - B No. - 1078 of 2020

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Petitioner :- Kismata Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Shailesh Kumar Tripathi Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi

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Hon'ble Anjani Kumar Mishra,J.

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Heard learned counsel for the petitioner.

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The petitioner seeks a writ of certiorari for quashing the order dated 23.10.2019 passed by the Consolidation Officer, Dumariyaganj, District Siddharth Nagar, respondent no. 2 in Case No. 40 of 2019, under Section 42-A of the U.P. Consolidation of Holdings Act. The Consolidation Officer has accepted a report submitted by the Consolidator. Consequently, certain corrections are to be made in the revenue records.

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When the petition initially came up for admission, learned counsel for the petitioner was asked to address the Court as to why the order impugned was not appealable or revisable.

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Today, learned counsel for the petitioner has placed certain judgments in support of his contention that no revision would lie against the order impugned.

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The first judgment relied upon is AIR 1999 Supreme Court 22, Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others , wherein it has been held that availability of an alternative remedy does not effect jurisdiction of the High Court, especially when the authority, which has passed the impugned order lacks jurisdiction.

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In my considered opinion, the afore-cited judgment is not applicable in the facts and circumstances of the case because the Consolidation Officer under the Consolidation of Holdings Act, definitely has jurisdiction to pass an order on an application under Section 42-A of the Act. Therefore, the order impugned cannot be said to be one, which is totally without jurisdiction.

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The second judgment relied upon is 1998 (85) RD 516, Prem

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Pal Singh Vs. Board of Revenue, Allahabad and others , especially paragraph 15, thereof, wherein it has been observed as follows:-

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"15. In my considered view the submission of the learned counsel for the respondent that the petitioners did not avail remedy under Section 48 of the U. P. Consolidation of Holdings Act, 1953 and as such the writ petition is not maintainable. Ordinarily writ petition is not maintainable but if there is patent error of law on the record and there is failure of justice then it is maintainable. In this case these features are not attracted. I also do not find any error of law in the judgment of Revenue Board or Settlement Officer Consolidation and requires no interference."

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In my considered opinion, the observation relied upon is a passing observation and mere obiter dicta. In fact the judgment cited holds that ordinarily a writ petition is not maintainable if the remedy under Section 48 of the U.P. Consolidation of Holdings Act, 1953 has not been availed of. The judgment cited therefore, holds against the petitioner.

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The third judgment relied is 1996 (97) RD 403, Kapil Dev Vs. Deputy Director of Consolidation, Faizabad and others . In this judgment, it has been held that the Settlement Officer Consolidation and the Deputy Director of Consolidation cannot entertain an appeal or revision against the order of the Consolidation Officer, which has been passed long before the closer of consolidation operations.

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Such is not the position in the case at hand. It appears that the order of the Consolidation Officer itself has been passed after the close of consolidation operations and, therefore, an appeal and revision would definitely lie in view of sub-section 2 of Section 52 of the Act.

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Learned counsel for the petitioner has also relied upon Bhunesh Dutt and others Vs. Joint Director of Consolidation and others , 2015 (126) RD 525 to submit that an application under Section 42-A cannot be entertained after the unit has been de-notified by means of a notification under Section 52 of the Act. There is no quarrel with the said settled legal position. However, this Court refuses to entertain this writ petition because against the order impugned, the petitioner has admittedly filed a restoration application claiming the order impugned to be ex-parte. Copy of the restoration application is filed as Annexure 7 to this writ petition.

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Under the circumstances, admittedly, the petitioner is availing

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an alternative remedy available to him and cannot be permitted to avail to simultaneous remedies.

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In view of the above fact and circumstances, the writ petition is not maintainable and is, dismissed as such.

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Order Date :- 8.10.2020 Mayank

Kismata v. State of U.P. and 8 Others

Case brief

What is this about?

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Kismata v. State of U.P. and 8 Others

Case brief

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