- (1.) The petitioner is a co-tenure holder of Plot No. 236 of Village Bhagwanpur, District Azamgarh. The consolidation operations are admittedly in progress and it is not in dispute that a notification was issued under Section 4(1) of the U.P. Consolidation of Holdings Act, 1953 (Act). The stage of the proceedings is stated to be that under Section 9-A. Some parts of Plot No. 236 are shown to be reserved for a playground. The petitioner and his co-tenure holder have filed an objection on 20 September 2013 under Section 9(2) which is pending disposal. At this stage, on 7 October 2014 the petitioner moved an application under Section 5(1)(c)(i) before the Settlement Officer, Consolidation seeking permission for the use of the land for other than agricultural purposes. The petitioner intends to establish an LPG godown for the benefit of his son. During the pendency of the proceedings initiated by the petitioner, the Settlement Officer, Consolidation called for a report from the Consolidation Officer. By an order dated 15 April 2015, the application submitted by the petitioner was dismissed. The petitioner filed a revision against the order of the Settlement Officer, Consolidation. The revision has been dismissed by an order dated 14 March 2016.
(2.) The petitioner has, in these proceedings, challenged the constitutional validity of Section 5(1)(c)(i) and Section 45-A of the Act. The basis of the challenge is that no guidelines have been provided by the statute in regard to the exercise of the discretion on whether or not permission should be granted for the use of land other than for agricultural purposes and hence the provision is arbitrary and violative of Article 14 of the Constitution. The challenge to the constitutional validity is sought to be met by relying upon a judgment of the learned Single Judge of this Court in Jhunguri Singh vs. Dy. Dir. of Consolidation,1986 RevDec 119. Explaining the scope of the provisions of Section 5(1)(c)(i), the learned Single Judge held thus: "12. ... If the proposed user of land by a tenure-holder for any other purpose not connected with agriculture, horticulture and animal husbandry (including pisciculture and poultry farming) is not likely to affect adversely the scheme of consolidation, the Settlement Officer Consolidation would grant permission sought for. The absence of guide line in the matter relating to those cases covered by Section 5(1)(c)(i) would not be taken to confer on the Settlement Officer Consolidation any arbitrary and uncontrolled absolute power either to allow or reject an application according to his own whims and sweet will. If the application is found liable to be rejected on some valid ground, the Settlement Officer Consolidation, in my opinion, will have to pass a speaking order setting out grounds on which application was found liable to be rejected. An application moved under Section 5(1)(c)(i) and (ii) to be disposed of by a speaking order because the order passed by the Settlement Officer Consolidation either granting or refusing to grant permission would be revisable by the Deputy Director of Consolidation under Section 48 of the U.P. Consolidation of Holdings Act. The order passed by the Settlement Officer Consolidation would be considered on merits by the superior authority under the Act and if found to be arbitrary, unjust and improper the same would be liable to be set aside. Thus the said impugned provision contained in Section 5(1)(c)(i) and (ii) of the Act cannot be taken to vest uncontrolled arbitrary power in the Settlement Officer Consolidation to act according to his own whims and caprice. It, therefore, cannot be said to be ultra vires on the said ground urged by the learned counsel for the petitioner."
(3.) The submission that the provisions were ultra vires was hence repelled.;