- (1.) YATINDRA Singh, J. This is a writ petition against the order dated 28-4-1999 declaring vacancy in the premises in dis pute under U. P. Urban Buildings (Regula tion of Letting, Rent and Eviction) Act, 1972.
(2.) RESPONDENT No. 2 is the landlord and owner of the premises in dispute. RESPONDENT No. 3 is his real daughter. She filed an application on 17-8-1998 for allot ment of the premises on the ground that it has become vacant. The Rent Control In spector submitted his report on 11-9-1998. This was objected by the petitioner. In substance the objection of the petitioner was that: * The property was taken for residence of joint family and it is tenant but as Sri Purshottam Das Gupta was earning member receipt was issued in his name. * Sri Purshottam Das Gupta left the premises in 1972and took up tenanted premises elsewhere. Thereafter the petitioner alongwith his mother and other family members of the joint family continued to live in the premises though the rent receipt continued in the name of Purshottam Das Gupta. * The petitioner is a tenant of the premises living since before 5 of July, 1976 with consent of the landlord and is entitled to protection of the Act. The Rent Control and Eviction Officer Kanpurnagar (Respondent No. 1) after considering the evidence on record held that Sri Purshottam Das Gupta had left the premises in dispute and it has became vacant. Hence the present writ petition. Ave heard Sri W. H. Khan Coun sel for the petitioner and Sri S. M. Dayal and Sri V. K. Agnihotri Counsels for the respondents. I hAve already summed up the case of the petitioner in paragraph 2 of my judgment. None of the necessary find ing has been t 'corded by Respondent No. 1. He has merely held that Sri Purshottam Das Gupta had left the premises and negated the case of the petitioner on the ground that he was minor without record ing finding whether joint Hindu family was a tenant or not and when Sri Purshottam Das Gupta left the premises and if petitioner is protected under Section 14 of the Act or not. The case could not be decided without recording finding on these questions. In view of this the order dated 28-4-1999 is quashed and the case is sent back for re-decision. The parties may appear before Respondent No. 1 on 20-8-2001 and he may decide the case again in accordance with law after recording finding the following questions: (i) Whether the joint family was the tenant of the premises in dispute or only Sri Purshot tam Das Gupta was the tenant. (ii) When Sri Purshottam Das Gupta left
(3.) REMISES in dispute ? (iii) Whether the petitioner is entitled to protection of Section 14 of the Act? With these observation the writ peti tion is disposed off. W. P. disposed. [2001 (2 ). ICLR 846 (All)] ALLAHABAD HIGH COURt Present: R. R. Yadav, J. Usman Gani Versus State of U. P. and Others. Civil Misc. Writ Petition No. 23529 of 2001, decided on 3rd July, 2001 3-7-2001 (a) U. P. Consolidation of Holdings Act, 1953, Sections 6, 4-Notification for consolidation operation in respect of one village-High Court cannot direct for can cellation of notification in respect of other village-Because of cancellation in policy decision of Government. The power conferred upon the State Government under Section 6 of the Act of 1953 to cancel a notification under Section 4 of the said Act whole and part of the area specified therein is in the nature of policy decision taken by the State Government under aforesaid section and it cannot be per mitted to be assailed as a matter of course without demonstrating that policy decision in de-notifying whole or part of an area taken by the State Government in breach of either statutory provision or in breach of constitu tional philosophy. [para 3] (b) Constitution of India, Article 226-Writ of mandamus-Can be issued only in those cases where the authorities are under legal obligation to perform statutory duty but they failed to perform the same. Writ of mandamus can be issued only in those cases where the authorities are under legal obligation to perform a statutory duty but on representation they failed to perform the same. Their failure to perform statutory duty gives a cause of action to an aggrieved per son. The mere filing of representation is not sufficient to issue a writ of mandamus unless it is further demonstrated that their action is demurrable. [para 5] Judicial finding NOTIFICATION FOR CONSOLIDATION OPERATIOn -CANCELLATION Of High Court cannot direct for cancella tion of notification for consolidation opera tion because cancellation is policy decision of Governnient, ; Appearance.-N. D. Keshari, for the petitioner ; SC, forthe respondents. : JUDGMENt R. R. Yadav, J.- By way of filing the instant writ petition, the petitioner is seek ing relief in the nature of mandamus directing the respondents to quash the entire consolidation proceedings by de-notifying village Lai, Pargana Nawab-ganj, Tahsil Soraon, district Allahabad under Section 6 of the U. P. Consolidation of Holdings Act (hereinafter referred to as Act of 1953), as they have done in respect of village Kudha, vide Annexures 9 and 10 to the writ petition. I have heard learned Counsel for the petitioner, Sri N. D. Keshari at length and perused the provisions envisaged under Section 6 of the Act of 1953. 2. From the perusal of the aforesaid section, I am of the opinion that the State Government under Section 6 of the Act of 1953, is empowered with exclusive juris diction to cancel the notification under Section 4 of the Act of 1953 in respect of the whole or part of the area specified therein. It is further to be noticed that where notification under Section 4 of the Act of 1953 is cancelled in respect of any unit under sub-section (1) of Section 6 of the said Act, such area shall subject to final order relating to the correction of the land records, if any passed on or before the date of such cancellation ceases to be under consolidation operation with effect from the date of such cancellation. Slate Govern ment has reliable ears and eyes to ascertain the facts leading to cancellation of notifica tion under Section 4 of the Act of 1953 in exercise of its powers under sub- section (1) o I Section 6 o I the said Act whereas this Court has no mechanism to ascertain the facts for cancellation of notification under Section 4of the Act of 1953. 3. There is yet another reason to ar rive at the aforesaid conclusion. To my mind, the power conferred upon the State Government under Section 6 of the Act of 1953 to cancel a notification under Section 4 of the said Act whole and part of the area specified therein is in the nature of policy decision taken by the State, Government under aforesaid section and it cannot be permitted to be assailed as a matter of course without demonstrating that policy decision indemnifying whole or part of an area taken by the Stale Government in breach of either statutory provision or in breach of constitutional philosophy. The Slate Government has taken a policy decision to cancel the notification under Section 4 of the Act of 1953 of village Kudha in exercise of its power conferred under Section 6 of the said Act and it cannot be compelled to take policy decision to cancel the notification under Section 4 of the Act of 1953 relating to village Lai as suggested by the learned Counsel for the petitioner. In the present case, the learned Counsel for the petitioner miserably failed to bring to my notice any breach of either statutory provision or constitutional provision in not cancelling the notification under Sec tion 4 relating to village Lai. 4. The arguments of the learned Counsel for the petitioner that the State Government is bound to cancel the notification issued under Section 4 of the Act of 1953 relating to village Lai as it has done in respect of village Kudha on the ground of parity is not acceptable to me and it is hereby repelled. The bottom line argument of the learned Counsel for the petitioner before me is that the petitioner has moved repre sentations before the respondents to can cel the notification issued under Section 4 of the Act of 1953 relating to village Lai as they have cancelled in respect of village Kudha. It is urged by the learned Counsel for the petitioner that this court may issue a mandamus directing the respondents to decide his representation. Suffice it to say in this regard that writ of mandamus can be issued only in those cases where the authorities are under legal obligation to perform a statutory duty but on repre sentation they failed to perform the same. Their failure to perform statutory duty gives a cause of action to an aggrieved person. The mere filing of representation is not sufficient to issue a writ of mandamus unless it is further demonstrated that their action is demurrable. None of the conditions for issu ing mandamus are satisfied in the present case. Learned Counsel for the petitioner failed to demonstrate before me that the Consolidation Authorities- respondents arc required to pass speaking order after giving reasonable opportunity of hearing to the petitioner.;