S.C. Chaurasia,J.
1. Heard learned counsel for petitioners, learned Standing Counsel, Sri R. N. Gupta, learned counsel for opposite party no.2, Sri S. A. Jamal, learned counsel for opposite parties nos. 3 to 5 and perused the record.
2. This writ petition under Article 226 of the Constitution of India has been filed with the prayer that a writ, order or direction in the nature of Certiorari may be issued quashing the impugned order dated 02.06.2010 passed in revision no. 882/0809 by opposite party no.1, contained as Annexure No.1 to the writ petition and the opposite parties may be directed not to disturb the peaceful possession of the petitioners over the disputed land.
3. The learned counsel for petitioners has submitted that the application for mutation under Section 34 of the U.P. Land Revenue Act was moved on behalf of petitioners on 28.04.1998 in the Court of Tahsildar, Milkipur, Faizabad, on the basis of sale deed dated 17.09.1990 executed by Sri Sahab Saran in favour of the petitioners and their names were ordered to be mutated by Tahsildar, Milkipur, Faizabad vide order dated 12.06.1998. His contention is that the revision preferred against the said order dated 12.06.1998, has been disposed of, setting aside the said order vide order dated 02.06.2010 illegally and the opposite parties nos. 3 to 5 were declared cotenants illegally and hence, the impugned order dated 02.06.2010 deserves to be set aside.
4. Learned counsel for the opposite parties nos. 3 to 5 has submitted that the proceedings under Section 9A of the U.P. Consolidation of Holdings Act were pending in the Court of Consolidation Officer for determination of rights and title of the parties and hence, the application for mutation moved on behalf of the petitioners was not maintainable and the orders passed by the Courts below are without jurisdiction.
5. It is not disputed that the Notification under Section 4 (2) of the U.P. Consolidation of Holdings Act was issued on 23.11.1991 and the consolidation operations were commenced in the concerned village. It is also not disputed that the opposite parties nos. 3 to 5 filed objection under Section 9A of the U.P. Consolidation of Holdings Act on 25.07.1993 in the Court of Consolidation Officer for determination of their cotenancy rights and the petitioners filed objection under Section 9A of the said Act on 19.06.1993 for declaration of their rights and mutation on the basis of sale deed dated 17.09.1990 executed by Sri Sahab Saran in their favour. It is also not disputed that the said proceedings are still pending before the Consolidation Officer.
6. Learned counsel for both the parties have not been able to disclose the exact date of Notification issued under Section 52 of the U.P. Consolidation of Holdings Act, but, they have admitted that the application for mutation under Section 34 of the U.P. Land Revenue Act was moved on 28.04.1998 and the said Notification under Section 52 of the said Act was issued prior to moving of the said application. It has been contended by learned counsel for the opposite parties that since the proceedings under Section 9A of the U.P. Consolidation of Holdings Act were pending prior to issuance of Notification under Section 52 of the said Act, the said proceedings shall continue in accordance with the provisions of said Act, even after issuance of Notification under Section 52 of the said Act. His contention is that during pendency of the said proceedings, the petitioners were not entitled to move an application under Section 34 of the U.P. Land Revenue Act for mutation of their names on the basis of sale deed in question and hence, the orders passed there on by Tahsildar as well as the revisional Court are without jurisdiction.
7. Section 52 of U.P. Consolidation of Holdings Act, 1953 may be quoted as under:
"52. Close of consolidation operations.(1) As soon as may be after fresh maps and records have been prepared (under subsection (1) of Section 27), the State Government shall issue a notification in the official Gazette that the consolidation operation have been closed in the unit and village or villages forming part of the unit shall then cease to be under consolidation 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.]
[(1A) The notification issued under subsection (1) shall be published also in a daily newspaper having circulation in the area and in such other manner as may be considered proper].
[(2) Notwithstanding anything contained in subsection (1), any order passed by a Court of competent jurisdiction in cases of writs filed under the provisions of the Constitution of India, or in cases of proceedings pending under this Act on the date of issue of the notification under subsection (1), shall be given effect to by such authorities as may be prescribed and the consolidation operation shall, for that purpose, be deemed to have not been closed.]
[(3) Where the allotment or lease of any land made before the consolidation scheme becomes final under Section 23, is cancelled by an order under subsection (4) of Section 198 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and such order becomes final, then notwithstanding anything contained in the provisions of this Act, such order shall be given effect to any such authorities as may be prescribed, in the following manner and the consolidation operation shall, for the purpose, be deemed to have not closed, namely,
(a) the value of the land which was the subjectmatter of such allotment or lease shall first be ascertained in the manner prescribed;
(b) the value referred to in clause (a) shall be deducted from the total value of land allotted to the tenureholder concerned during consolidation proceedings;
(c) the tenureholder shall be entitled, during consolidation proceeding, to land equivalent in valuation to the said land.]"
8. Since the proceedings under Section 9A of U.P. Consolidation of Holdings Act were pending prior to issuance of Notification under Section 52 (1) of the said Act, the said proceedings shall be continued in accordance with the provisions of the said Act and for that purpose, the Consolidation operation shall not be deemed to have been closed in accordance with subsection (2) of Section52 of the U.P. Consolidation of Holdings Act. Under the circumstances, until and unless, the rights and title of the concerned parties are determined by the competent Court, the petitioners had no right to move an application under Section 34 of the U.P. Land Revenue Act for mutation of their names on the basis of sale deed in question. Consequently, the orders passed by Tahsildar as well as the revisional Court with reference to said application for mutation during the pendency of the proceedings under Section 9A of U.P. Consolidation of Holdings Act, which are still pending, are without jurisdiction. Hence, the orders passed by Tahsildar as well as the revisional Court deserve to be quashed.
9. The petitioners were not expected to challenge the order dated 12.06.1998 passed by Tahsildar in their favour. Since the said order dated 12.06.1998 is also without jurisdiction, it deserves to be quashed.
10. A writ of Certiorari is issued quashing the impugned order dated 02.06.2010 passed by opposite party no.1, contained as Annexure No.1 to the writ petition and the order dated 12.06.1998 passed by Tahsildar, Milkipur, Faizabad, contained as Annexure No.5 to the writ petition. The Consolidation Officer, Kuchera, District Faizabad is directed to dispose of the proceedings under Section 9A of U.P. Consolidation of Holdings Act expeditiously, in accordance with law, preferably within a period of six months from the date a certified copy of the order of this Court is filed in the said Court.
11. Parties are directed to maintain statusquo as exists today, till the disposal of said proceedings.
12. With these observations/directions, the writ petition stands disposed of finally.
