Full Judgment Text
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PETITIONER:
RAM ADHAR SINGH
Vs.
RESPONDENT:
RAMROOP SINGH & ORS.
DATE OF JUDGMENT:
26/10/1967
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
HIDAYATULLAH, M.
BHARGAVA, VISHISHTHA
CITATION:
1968 AIR 714 1968 SCR (2) 95
CITATOR INFO :
D 1973 SC2451 (4)
F 1975 SC1499 (1)
RF 1976 SC 443 (9)
R 1978 SC1398 (6)
RF 1980 SC2051 (2)
R 1981 SC1450 (11)
RF 1991 SC 249 (10)
ACT:
Uttar Pradesh Consolidation of Holdings Act, 1953 (U.P. Act
5 of 1954), s. 5 as amended by U.P. Act 21 of 1966-Suits and
proceedings in respect of rights or interest in land pending
before authorities or courts to abate in areas declared to
be under consolidation operations-Amended section not
specifically mentioning suits for possession-Appeal in suit
for possession under s. 209 U.P. Zaindari and Land Reforms
Act, abates under aforesaid s. 5-Amendment whether ultra
vires the State abates under aforesaid s. 5-Amendment
whether ultra vires the State Legislature as affecting
jurisdiction of Supreme Court.
HEADNOTE:
A suit for recovery of possession of land under s. 209 of
the U.P. Zamindari Abolition and Land Reforms Act, 1950 was
filed against the appellant. It was decreed by the trial
court and the decree was affirmed by the first appellate
court as well as by the High Court in second appeal.
Special leave to appeal to this Court was granted to the
appellant under Art. 136 of the Constitution. Thereafter
the State Government issued a notification under s. 4 of the
U.P. Consolidation of Holdings Act, 1953 bringing the area
in which the suit lands were situate, under consolidation
operations. The appellant filed an application praying for
an order that in view of s. 5 of the Consolidation of
Holdings Act as amended by Act 21 of 1966 the appeal stood
abated. On behalf of the respondent it was however urged :
(i) that suits for recovery of possession of lands did not
come within the purview of s. 5 as amended and hence no
question of abatement arose; (ii) that if the amended
section applied to the present proceedings the legislation
being one by the State Legislature, was ultra vires inasmuch
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as it took away the jurisdiction of the Supreme Court to
deal with the appeal.
HELD : (i) Suits for possession as such, have not been
expressly referred to in the new s. 5; but the expression
’every suit and proceeding in respect of declaration of
rights or interest in any land. . . .’ is comprehensive
enough to take in suits for possession of land, because,
before a claim for possession is accepted, the court will
have, necessarily, to :adjudicate upon the right or interest
of the plaintiff, in respect of the -disputed property,
taking into account the claim of the Opposite party. The
various provisions contained in the Act also clearly
indicate that disputes of the nature which existed between
the parties in the present litigation, are now well within
the- jurisdiction of the authorities constituted under the
Act, to adjudicate upon. [100E-G]
The suit filed by the respondent was therefore covered by s.
5 of the Consolidation of Holdings Act.
(ii) :Section 5 does not affect the jurisdiction of the
Supreme Court and is not ultra vires. What the State
Legislature has done is only to make provision in respect of
matters within its jurisdiction and declare that a suit,
instituted’ in a court, within its area has abated. The
Position, ultimately is that this Court takes note of a
subsequent event, viz.,, the passing of the Amending Act,
and the amendment of s. 5 thereby by the State Legislature,
and on that basis it holds that the suit, out of which these
proceedings arise, stands abated. [102D-F]
96
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Miscellaneous
Petition,No. 2631 of J967 (Application for abatement of
Appeal).
Civil Appeal No. 691 of 1966.
Appeal by special leave from the judgment and order dated
April 20, 1965 of the Allahabad High Court in Second Appeal
No. 1602 of 1963.
E. C. Agrawala and P. C. Agrawala, for the petitioners
appellant.
S. V. Gupte and B. Datta, for respondent No. 1.
The Judgment of the Court was delivered by
Vaidialingam, J. In Civil Appeal No. 691 of 1966, the ap-
pellant, by special leave, granted by this Court, challenges
the judgment and decree,, of the Allahabad High Court, dated
April 20, 1965, in Second Appeal No. 1602 of 1963. In Civil
Miscellaneous Petition No. 2631 of 1967, the appellant has
prayed this Court, to pass an order that Civil Appeal No.
691 of 1966 has abated, in view of the amended s. 5, of the
Uttar Pradesh Consolidation of Holdings Act, 1953 (,U.P. Act
5 of 1954) (hereinafter referred to as the Act).
The appellant was the defendant, in a suit instituted by the
respondents, under s. 209, of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1950)
(hereinafter referred to as the Abolition Act). The
plaintiff, claiming to be a bhumindar of the land, in
question, instituted the suit, out of Which the second
appeal arose, against the appellant, for recovery of
possession of the property, on the ground that the appellant
was a trespasser and that he was not entitled to remain, in
possession of the property. The trial Court, as well as the
Appellate Court, have held that the plaintiff was the
bhumidar, and the appellant has not established his tenancy
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right in the property, and, as such, he was neither a sardar
nor an asami. On the other hand, the findings are that the
appellant is only a trespasser. On these findings, the
plaintiff’s suit was decreed. The appellant, thereupon,
challenged the decision of the two subordinate courts In
second appeal, before the High Court of Allahabad. The High
Court has agreed with the conclusions, arrived at by the
Subordinate courts, and dismissed the second appeal. This
Court, on June 15, 1965, granted special leave to the
appellant, to appeal against the judgment of the High Court.
According to the appellant, after the grant of special
leave, by this Court, the State of Uttar Pradesh has
published in the State Gazette, a notification, dated
October 22, 1965, under s. 4, of the Act. The effect of
that notification is that the plots, in
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dispute between the parties in this litigation, and which
are situated in the village of Pureon, Pargana Bayalsi, in
the District of Jaunpur, have been brought under the
consolidation operation by virtue of the Act. Section 5 of
the Act, as it stood prior to its amendment in 1966, was as
follows:
"5. Effect of declaration.-Upon the
publication of the notification under section
4 in the Official Gazette, the consequences,
as hereinafter setforth, shall, subject to the
provisions of this Act, from the date
specified thereunder till the publication of
notification under Section 52 or sub-section
(1) of Section 6, as the case may be, ensue in
the area to which the declaration relates,
namely :
(a) the district or part thereof, as the
case, may be, shall be deemed to be under
consolidation operations and the duty of
maintaining the record-of-rights and preparing
the village map, the field book and the annual
register of each village shall be performed by
the District Deputy Director of Consolidation,
who shall maintain or prepare them, as the
case may be, in the manner prescribed:
(b) (i) all proceedings for correction of
the records and all suits for declaration of
rights and interests over land, or for
possession of land, or for partition, pending
before any authority or court, whether of
first instance, appeal, or reference or
revision, shall stand stayed, but without
prejudice to the right or interests in dispute
in the said proceedings or suits before the
consolidation authorities under and in
accordance with the provisions of this Act and
the rules made thereunder;
(ii) the findings of consolidation
authorities in proceedings under this Act in
respect of such right or interest in the land,
shall be acceptable to the authority or Court
before whom the proceeding or suit was pending
which may, on communication thereof by the
parties concerned, proceed with the
proceedings or suit, as the case may be;
(c) notwithstanding anything contained in
the U.P. Zamindari Abolition and Land Reforms
Act, 1950, notenure-holder, except with the
permission in writing of the Settlement
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Officer, Consolidation, previously obtained
shall-
(i) use his holding or any part thereof for
purposes not connected with agriculture,
horticulture or
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animal husbandry including pisciculture and
poultry farming; or
(ii) transfer by way of sale, gift or
exchange any part of his holding in the
consolidation area :
Provided that a tenure-holder may continue to
use his holding or any part thereof, for any
purpose for which it was in use prior to the
date specified in the notification issued
under section 4."
It is further stated that s. 5 has been amended, by Uttar
Pradesh Act XXI of 1966. The material provisions of the
Amendment Act, amending s. 5, are as follows :
"It is hereby enacted in the Seventeenth year
of the Republic of India as follows
1. Short title....
2. Amendment of Sec. 5 of U.P. Act No. V of
1954. The existing Section 5 of the Uttar
Pradesh Consolidation of Holdings Act, 1953
(hereinafter called the Principal Act) shall
be renumbered as sub-section (1) thereof, and
(i) clause (b) of Sub-section (1) as so
renumbered, shall be omitted; and
(ii) after Sub-section (1) as so renumbered,
the following new Sub-section shall be added,
viz :
"(2) Upon the said publication of the
notification, under sub-section (2) of Section
4, the following further consequences shall
ensue in the area to which the notification
relates, namely :-
(a) every proceeding for the correction of
records every suit and proceeding in respect
of declaration or rights or interest in any
land lying in the area, of for declaration or
adjudication of any other right in regard to
which proceedings can or ought to be taken
under this Act, pending before any Court or
authority whether of the first instance or of
appeal, reference or revision, shall, on an
order being passed in that behalf by the court
or authority before whom such suit or
proceeding is pending, stand abated.
Provided that no such order shall be passed
without giving to the parties notice by post
or in any other manner and after giving them
an opportunity of being heard
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Provided further that on the issue of a
notification under sub-section (1) of Section
6 in respect of the said area or part thereof,
every such order in relation to the land lying
in such area or part as the case may be, shall
stand vacated.
(b) Such abatement shall be without
prejudice to the rights of the persons
affected to agitate the right or interest in
dispute in the said suits or proceedings
before the appropriate consolidation
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authorities under and in accordance with the
provisions of this Act and the rules made
thereunder.
Based upon the amended provisions of s. 5 of the Act, the
appellant has filed C.M P. 2631 of 1967, to pass an order
that Civil Appeal No. 691 of 1966 stands abated, inasmuch as
the rights of parties, with reference to their rights or
interest in the property in dispute, will have to be
agitated before the appropriate consolidation authorities,
in accordance with the provisions of the Act.
Learned counsel for the appellant, Mr. Agrawala, has taken
us through the various provisions of the Act and, according
to him, the scheme of the Act clearly shows that the
question, whether the respondent is a bhumidar and as to
whether his client, the appellant, has got tenancy rights in
the properties, are all matters now falling for
adjudication, within the exclusive jurisdiction of the
authorities constituted under the Act. Counsel also points
out that while originally, under s. 5, as it stood before
the amendment, the proceedings pending in Courts stood
’stayed, to await the adjudication by the authorities under
the Act, the position has been now altered, by virtue of the
amendment effected by the Amending Act XXI of 1966, the
effect of which is to declare the proceedings pending before
Courts, as abated. Counsel therefore urges that there is
nothing further to be done, by this Court, in the appeal,
excepting to pass an order that the appeal has abated.
Mr. S. V. Gupte, learned counsel, appearing for the respon-
dent-plaintiff, has raised two contentions : (i) that suits,
for recovery of possession of lands, from trespassers do not
come within the purview of s. 5, as it now stands, after the
1966 amendment, and hence no question of abatement arises;
(ii) if the amended section applies to these proceedings,
the legislation being one by the State Legislature, is ultra
vires inasmuch as it takes away the jurisdiction of the
Supreme Court, to deal with the appeal.
100
After a consideration of the contentions of both the learned
counsel, we ire satisfied that the stand taken, on behalf of
the respondent, on both the points, cannot be accepted.
We have already extracted the provisions of S. 5 of the Act,
as it originally stood, and as it now stands, after the
amendment in 1966. No doubt, in cl. (b) (i) of s. 5, as it
originally stood, suits for possession of land were also
expressly dealt with. But, under the amended s. 5, there is
no direct reference to ’suits for possession of land’. It
is, on this difference in phraseology of the new section,
that Mr. Gupte, learned counsel for the respondent, has
urged that his client’s suit, being one for recovery of
possession, instituted under s. 209, of the Abolition Act,
is not hit by the provisions of s. 5, as it now stands,.
Mr. Gupte points out that when, in the original s. 5, there
was a specific reference to suits for possession of land,
and which suits were to be stayed, there was a conscious
departure, by the Legislature, when S. 5 was amended, by
omitting suits for possession of land. If the intention of
the legislature was, Mr. Gupte points out, that the various
types of suits or proceedings which had to be stayed, under
the old s. 5, have to be declared as abated, under the new
s. 5, the Legislature could have referred to all the types
of actions which had been dealt with, under the original
section. No doubt this line of reasoning, on the face of
it, may appear to be attractive; but we are not satisfied
that there is any merit in that contention. ’Suits for
possession’, as such, has not been expressly referred to, in
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the new section 5, but, in our opinion, the expression
’every suit and proceeding in respect of declaration of
rights or interest in any land are comprehensive enough to
take in suits for possession of land, because, before a
claim for possession is accepted, the Court will have,
necessarily, to adjudicate upon the right or interest of the
plaintiff, in respect of the disputed property, taking into
account the claim of the opposite party.., Therefore, in our
opinion, the suit, instituted by the respondent,. is covered
by the amended section 5 of the Act.
The various provisions, contained in the Act, also clearly
indicate that disputes, of the nature which exists between
the parties in the present litigation, are all now within
the jurisdiction of the authorities, constituted under the
Act, to adjudicate upon. The Act itself is one, to ’provide
for the consolidation of agricultural holdings in Uttar
Pradesh for the development of agriculture’. Section 3
defines the various expressions. ’Chak’ means the parcel of
land allotted to a tenure-holder, on consolidation. ’Con-
solidation’ means re-arrangement of holdings in a suit,
amongst several tenure-holders, in such a way as to make
their respective holdings more compact. ’Tenure-holder’
means a bhumidhar or sardar of the land concerned, and
includes an asami. Section 4
101
gives power to the State Government to make a declaration
that a district or part thereof may be brought under
consolidation operations. There is no controversy, that the
notification, issued by the State Government, under this
section, on October 22, 1965, takes in the area where the
disputed lands are situated. We have already referred to
the provisions, contained in the original as well as the
amended section 5.
Sections 8 and 8A, deal with the preparation of records,
and statements, by the Consolidation Officer, and s. 9
provides for the Assistant Consolidation Officer sending
notices to tenure-holders concerned, and other persons
interested, showing their interests in, and liabilities, in
relation to, the land. Sub-s. (2) of s. 9 provides for a
person, to whom a notice under sub-s. (1) has been sent, or
any other person interested, to file objections within the
time specified, therein, to the Assistant Consolidation
Officer, disputing the correctness of the entries made in
the records. One of the entries, we have already pointed
out, relates to the ’rights in and liabilities in relation
to the land’. There are provisions relating to the hearing
of objections and the Assistant Consolidation Officer is
deemed to be a Court of competent jurisdiction. Provisions
have also been made for an aggrieved party to file an
appeal, to the Settlement Officer, and s. 11 provides that
the order of the Settlement Officer is final and that it
cannot be questioned in any Court of law.
Section 11A provides that no question in respect of a
claim to a land, shall be raised or heard at any subsequent
stage of the consolidation proceedings, if they have not
been raised earlier. Section 24- provides for the tenure-
holder being entitled to enter into possession of the plots
allotted to him. Section 28 also gives power to the
Assistant Consolidation Officer, on the application of the
tenure-holder, to be put in possession of the land, allotted
to him. We have already referred to the fact that the
expression ’tenure-holder’ under s. 3(11), means a
bhumidhar, or sirdar of the land concerned and includes also
an asami. Section 40 provides that proceedings before the
Consolidation authorities are to be deemed to be judicial
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proceedings. Section 48 provides for the Director of
Consolidation, exercising his powers of revision, regarding
cases decided, or proceedings taken, by any subordinate
authority. Section 49 excludes the jurisdiction of civil
courts to entertain any suit or proceeding, with respect to
rights in respect of lands, covered by the notification,
under s. 4, or with respect to any other matters, for which
a proceeding could, or ought to have been taken, under the
Act.
We have referred only to some of the salient provisions
of the Act; and they will clearly show that the subject
matter of the dispute, between the parties in this
litigation, are all matters
102
falling for adjudication, within the purview of the
authorities, constituted under the Act. In fact, cl. (b),
of sub-s. (2) of s. 5 of the Act, as it now stands, also
lays down that the abatement of the proceedings, under cl.
(a), shall be without prejudice to the rights of persons
affected, to agitate the right or interest in dispute in the
said suits or proceedings, before the appropriate
consolidation authorities under the Act and in accordance
with the provisions of the Act and the rules made,
thereunder.
Having due regard to the nature of this litigation, and
the provisions of the Act, we are satisfied that the amended
s. 5 of the Act applies to these proceedings. If that is
so, an order has to be passed that the suit, out of which
these proceedings arise, stands abated.
That takes us on to the second contention, of Mr. Gupte,
viz., that the provisions of the amended section 5 are ultra
vires, inasmuch as the State Legislature has enacted a
provision which impinges upon the jurisdiction of this
Court. The learned counsel has no doubt referred us, to the
various entries in the Lists in the Seventh Schedule to the
Constitution; but we are not satisfied that there is any
merit either, in this contention. The State Legislature has
not passed any legislation affecting the jurisdiction of
this Court. On the other hand, what the State Legislature
has done is only to make provision in respect of matters,
within its jurisdiction and to declare that a suit,
instituted in a Court, within its area, has abated. The
position, ultimately, is that this Court takes note of a
subsequent event, viz., the passing of the Amending Act, and
the amendment of s. 5 thereby, by the State Legislature,
and, on that basis, it holds that the suit, out of which
these proceedings arise, stands abated. Therefore, there is
no question of the Legislature of the State having passed
any legislation affecting the jurisdiction of this Court.
The result is that C.M.P. 2631 of 1967 is allowed and it
is declared that Civil Appeal No. 691 of 1966 has abated,
under the amended s. 5 of the Act. The civil appeal is also
disposed of, as having abated, for the reasons given by us,
when dealing with the civil miscellaneous petition. Parties
will bear their own costs in both the matters.
G.C. Petition allowed.
103