RAM ADHAR SINGH versus RAMROOP SINGH & ORS.

RAM ADHAR SINGH

RAMROOP SINGH & ORS.

October 26, 1967

(M. HIDAYATULLAH, V. BHARGAVA AND C. A. VAIDIALINGAM, JJ.]

Uttar Prcdes!z 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 llreas deck1red to be under consolidation operations-A1ne1td-ed ,\·ect!on nol specificaliy 111entionlng .<htits for possession-Appeal in suit for posses.\·ion under s. 209 U.P. Za111indllri and [,and Refor1ns Act. ahnte.\· under afore.raid s. 5-An1end111ent whether ultra vires the ·srate ahates under afori:sai'd s. 5-A 1nendn1ent lVhether ultra v!:cs. the State Legislature iis af}ecti11g juri.\·diction of Supre1i1e Co11rt.

suit··for recovery of possession of land under s. 209 of the U.P. Zamindari Aboi:tion and Land Reforms Act, 1950 was filed against the appellant. It was decreed by the tria1 court and the deci:ec was affirmed hy the first appellate court as well as by the High Court in second app,.,.al. Special leave to appeal .to this Court was granted to the appellant under Art. 136 of the Constitution. 1-hcreaftcr the State Government issued notification under s. 4 of the U.P. Consolidation of Holdings Act, 1953 bringin~ the area in wh.ch th~ suit lands were situate, under consolida-tion 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 2 l of 1966 the appeal stood abated. On behalf of !he respondent it 1:J.s ho\vevcr urged : (i) that suit""i for recovery of possession of lands Liid nc.:t come within the purview of s. 5 as amended and hence no ques-tion of abatement arose; (ii) that if the amended section. applied to the present proc~edings the legislation being one· by the State Legislature, Was 11/tra vires inasm~ch 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; bul the expression 'every suit and proceeding in/respect of declaration of rights or inter-zst in any land .... ' is compre-hensive enough to take in suits for possession of land, because, before claim for possession is accepted, the c;ourt 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 alsv clearly indic•ate that disputes of the nature which existed between the parties in the -present litigation. are now well within the jurisdiction of the authoritit:s consti-G tuted under the Act, to adjudicate upon. [IOOE-G]

The suit filed by the respondent was therefore covered by s. 5 of the ~onsolidation of Holdin~s Act.

(ii) :Section 5 docs not affec~ the jurisdiction of the Supreme Court and is not ultra vires. What the St<:te Le:~islature has done is onlv to make provision in respect of n1atters v.ithin its jurisdiction and declare that suit, instituted. in court. within its area has abated. The position, ulti1nately is that this Court takes note· of sub~equent event, viz ... the passing of .the Amending Act, and the ·amendment of s. 5 thereby h~· the State Legislature, and on that basis it ho1ds~that the, suit, out of which these proceedings arise, stands a:bate4. [102D~.1.']

CIVIL APPELi.ATE h[1]RISDICTION: Civil Mic~ellaneous Petition A.

No. 2631 of I 967 (Application for abatement of Appeal).

Civil Appeal Ko. 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. Agra1ra/a and P. C. · Agra1ra/a, for the petitioner/ appellant.

S. V. G11prc and B. Datta, for respondent No. I.

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, challenge> the judgment and decree, of the Allahabad High Court, dated Aprii 20, 1965, in Second Appeal No. 1602 of 1963. In Civil Miscel· laneous 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 Con-solidation of Holdings Act, 1953 (U.P. Act 5 of 1954) (he1cin-after referred to as the Act).

The appellant was the defendant. in suit instituted by the respondents, under s. 209, of the Uttar Pradesh Zamindari Aboli· tion and Laud Reforms Act. 1950 (U.P. Act I of 1950) (herein-after referred 10 as the Abolition Act). The plaintiff, 'claiming to be bhumidar of the land, in que.stion. instituted the suit, out of which the second appeal arose, against the appellant, for rc-;:,very of possession of the property, on the ground that the appellant was trespasser and that he was n<>t entitled to remain. in JX'S· session 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 right in the property. and, as such. he was neither sirdar nor an asami. On the other hand, the findings are that the appellant is only trespasser. On these findings, the plaintiffs 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 Subor-dinate 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, hy thi> Court, the State of Uttar Pradesh has published in the State Gazette, notification, dated October 22, 1965, under s. 4. of the Act. The effect of that "notification is that the plots, in

dispute between the parties in this litigation, and which are situa-ted in the village of Pureon, Pargana Bayalsi, in the District of Jaunpur, have been brought under the consolidation operation, by v;rtue of the Act. Section 5 of the Act, as it stood prior to its. an:endment 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, sub.iect to the provisions of this Act, from the date specified thereunder till the publication of notification under Sec-tion 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 maintainJng · the record-of-rights and preparing the village map, the field book and the annnal register of each village shall be performed by the Dis-trict Deputy Director of Consolidation, who shall main-tain or prepare them, as the case may be, in the nian-ner 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 pro-ceedings under this. Act in respect of such right or in-terest in the land, shall be acceptable to the .authority or Court before whom the proceeding or suit was pend-ing which may, on communication thereof by the par-ties 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, no tenure-holder, except with the permission in writing of the Settlement Officer, Consolidation, previously ob-tained shall-

(i) use his holding or any poses not connected with agriculture,

part thereof for pur-horticulture or

animal husbandry including farming; or

pisciculture and poultry

(ii) transFcr by way of sale, gift or exchange any part of his holding in the consolidation area :

Provided that 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 noti-fication issued under section 4."

Jt is further "tJted that s. 5 has been amended, by Uttar Pra,bh Act XXI of 1966. The 1mterial provisions of the Amendment

Act, amending s. 5, arc as fol101;s :

"It is hereby cn:icted in the Sel'cntcenth year of the Republic of India as follows :-

J. Short title ....

2. Amendment of Sec. 5 of U.P. Act No. V of

1954. The C\isting Section 5 of the Uttar Pradesh Consoliuation of Holdings Act. 1953 (hereinafter call· cd the Principal Act) shall be renumbered as sub-sec-tion (I) thereof, and

(i) clause (b) of Sub-sccrion (I) :is so renumbered. shall be omitted: and

(ii) after Sub-section (I) as so ~cnumbered, the fol-lowing new Sub-section shall be added, vi~ :

"(2) Upon the said publication of the notificatior. under sub-section (2) of Section 4, the following fur-ther consequences shall ensue in the area to which the notification relates, namely:-

(a) every proceeding for the correction of records and every suit and proceeding in respect of declantion or rights or interest in any land lying in the area, of for declaration or adjudication of any other right in re- . gard to which proceedings can or ought to he 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 :hat behalf by the court or authority before whom s<ich suit or proceeding is pending, stand abated.

Provided that no such order shall be passed with-out giving to the parties notice l:ly pos: or in any other manner and after giving them an orpor!unity of being heard :

Provided further that on the issue of notification under sub-se-::tion (I) of Section 6 ln respect of the said area· or part therec.i, every such order 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 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 ap-pellant 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 con-solidation authorities, in accordance with the provisions of the Act.

Learned counsel for ,the appellant, Mr. Agra""ala, has taken us through the various provisions of the Act and, according to him, the scheme of the Act clearly shows that the question, whe-ther the respondent is 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 jurisdic-tion 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 adjuc':cation by the authorities under the Act, the posi-tion has been now altered, by virtue of the amendment effected by the Amending Act XXI of 1966, the effect of which is to de-clare 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 mat the appeal has abated. ·

Mr. S. V. Gupte, learned counsel, appearing for the respon-dent-plaintiff, has raised twc contentions : (i) that suits, for re-covery of possession of lands, from trespassers do not come within the purview of s. 5, as it now stands, after the. l 966 amendment, arid 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.

After consideration of the contentions of both the learned

counsel, we arc 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 no\'. stands, after the amendment in 1966. No doubt, in cl. (b) (i) of s. 5, as it originally stood, suits for po~session of land were also expressly dealt with. But, under the amended s. 5, there i& 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 respon-dent. 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, a~ it now stands. Mr. Gupte points out tl1at when, in the original s. 5, there was specific reference to suits for possession of land, and which suits were to be stayed. there was conscious departure, by the Legislature, when s. 5 was amended. by omitling suits for possession of land. If the intention of the lcgisbture was, Mr. Gupte points out, that the \an•Jus types of suits or proceedings which had to be stayed, undc• the old s. 5, have to be declard, as abated, under the new s. 5. the '-cgislature could have referred to all the types of actions which hdd been dealt with, under the original sectior.. No doubt this !in~ of reasoning, on the face of it, may appear to be attrac-tive; but we arc ~ot satisfied that there is any merit in that con-tention. 'Suits iur p::>ssession', as such, has not been expressly referred to, in the 1ww section 5, but, in our opinion, the expres-sion 'every suit and pro~P.ding in respect of declarati6n of rights or interest ir. any land ... .', are comprer.ensive enough to take in suits for possession of land, because, before claim for posses-sion is accepted, the Court will have, necessarily, to adjudicate upon the right or interest of the plaintiff, in respect of the dispu-ted 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 par-ties in the present litigation, arc all now within the ju~isdiction 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 tenure-holder, on consolidation. 'Con-solidation' means re-arrangement of holdings in suit, amongst several tenure-holders, in such way as to make their respective holdings ·more compact. 'Tenure-holder' means bhumidhar or sirdar of the land concerned, and includes an asami. Section 4

,sives power to the State Governm~nt to make declaratJ~n . , t~at district or part thereof may be brought unde.r co1:1soh~at10n operations. There is no controversy, that tj:le notJficat10n, issued by the State Government, under tbi.s secti0n, on October 22, 1965 takes in the area where the disputed h,nds are situated. We have 'already referred to the provisions, contained in the original as well as the amended section 5. 8 Sections 8 and SA, 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 pro-c vides for person, to whom notice under sub-s. (1) has been sent, or any other person interested, to file objections within the time specified, there.in, 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 Consolida-tion Officer is deemed to be Court of competent jurisdiction. Provisions have also been made for an l_lggrieved pariy 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 ques-tioned in any Court of law.

Section 11 provides that no question in respect of claim to 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 expres-sion 'tenure-holder' .under s. 3(11). means bhumidhar, or sirdar of. the land cdncerned ~nd incluoes also an asami. Section 40 provides that proceedings before the Consolidation authorities are to be deemed to be judicial 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 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 d!Spute, between the parties in this litigation, are all matters

(1968] 2 S.C.R.

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, .mder cl. (a), shall be without prejudice to the <ights of persons affected, to agitate the right or interest in dis-pute in the said suits or proceedings, before the appropriate con-solidation 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 A~1. we are satisfied that the amended s. 5 of rhc 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 wntention, ot"Mr. Gupte, viz., that the provisions of the amended section 5 arc ultra vires, ina>-much as the State Legislature has enacted provision· which im-pinges 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 arc not satisfied that there is any merit either, in this contention. The State Legis-lature 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 suit, instituted in Court, within its arc~, has abated. The position, ultimately, is that this Court takes note of subsequent event, viz., the passing of the Amend-ing Act, and the amendment of s. 5 thereby, by the State Legisla-ture, 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 affect-ing the jurisdiction of this Court. The result is th~t C.M.P. 2631 of 1967 is allowed and it is. declared that Civil Appeal No. 691 of 1966 has abatec' under the amende.d 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. Pdrties will bear their own costs, in both the matters.

Petition allowed.