Ram Bali Rai vs IIIrd Addl. District Judge and Others

Prakash Krishna, J.—The dispute relates to plots No. 240 and 241 area 4.904 situate in village Charha, district Azamgarh. The said village had been under the consolidation operation. The Petitioner filed an objection claiming himself the grove holder and bhumldhar of the plots. The said claim was contested by the contesting Respondent No. 2 herein, who died during the pendency of the present petition. The law as was prevailing then, the matter was referred to an arbitrator through Civil Judge. The arbitrator gave an award in favour of the Petitioner and the two proforma Respondents No. 7 and 8. Against the said award the contesting Respondent No. 2 preferred objections which were ultimately rejected by the Civil Judge vide judgment and order dated 28th of August, 1979, passed in C.H. Reference No. 579 of 1980. The matter was carried in appeal by Daya Shankar and two others being Civil Misc. Appeal No. 154 of 1979 which came up for consideration before the IIIrd Additional District Judge, Azamgarh. During pendency of the said appeal, the village was again notified for consolidation under Sub-section (2) of Section 4 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as the "Act"). An application purporting to be u/s 5 of the aforesaid Act was filed by Daya Shankar who was Appellant for abatement of the appeal, in view of the fact that the village again has been notified u/s 4(2) of the Act, for consolidation.

The court below by the impugned order dated 24th August, 1982 in view of Section 5 of the aforesaid Act declared the entire proceedings including the appeal, as abated. Challenging the said order, the present writ petition has been filed.

Heard Learned Counsel for the parties and perused the record.

The facts are not much In dispute and almost admitted. The only question mooted in the present writ petition is:

Whether the proceeding in question is liable to be abated in view of Section 5(2) of the Act?

On interpretation of Section 5(2) and Section 52(2) of the Act, the court below held that the entire proceedings abated. It repelled the argument of the Petitioner herein with regard to the interpretation of Sections 4A, 5 (2) and 52 (2) of the Act. In respect of the disputed plots, a subsequent notification was issued by the State Government again notifying that the village is under consolidation operation.

Section 4A which was inserted by U.P. Act No. 35 of 1976 provides that where the State Government is of the opinion that in the case of a district or part thereof in respect of which a notification has already been issued u/s 52, it is expedient in public interest so to do, it may make a declaration by notification in the Gazette that such district or part thereof may again be brought under consolidation operation. There is a proviso to the aforesaid provision which provides that no declaration shall be issued within ten years from the date of notification referred to in the said section. In other words, it provides that a district or part thereof In respect of which notification u/s 52 was issued, will not come under the consolidation operation again for a period of ten years.

Section 52 deals for close of consolidation operation. Its Sub-section (1) provides that the consolidation operation shall be closed in the unit and the village, by issuing a notification. Its Sub-section (2) provides that notwithstanding anything contained in Sub-section (1), two things, (i) any order passed by a court of competent jurisdiction in cases of writs filed under the provisions of the Constitution of India or, (ii) in cases of proceedings pending under this Act on the date of issue of the notification under Sub-section (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.

A conjoint reading of Sections 4A and 52 (2) would show that even if, a final notification under Sub-section (1) of Section 52 has been issued, it will not affect the proceedings pending either in the writ petition or under the Act on the date of issue of the notification. In other words, proceedings in the writ petition and other pending proceedings have been saved and they will be concluded and the final orders shall be given effect to notwithstanding the de-notification of the village u/s 52 (1) of the Act. In other words, the subsequent notification u/s 4A qua such proceedings shall not be operative.

The court below by the impugned order has proceeded on the premises that once the notification u/s 52(1) of the Act has been issued for de-notification, the consolidation operation in the village shall come to an end in its entirety. Its attention was drawn towards Sub-section (2) of Section 52 but it repelled the argument on the ground that merely by the fact that such orders passed in pending cases are to be given effect" in revenue records it cannot be said that regarding such plots, no notification has taken place.

In my considered view, the interpretation put by the learned court below, is not in consonance of the spirit of Sections 4, 4A and 52 (2) of the Act.

The Consolidation of Holdings Act, 1953 was brought on Statute book for bringing about consolidation of agricultural holdings in Uttar Pradesh. The scheme could not be successful unless all disputes to title in respect of different holdings in a village were first adjudicated upon and decided finally between the parties. This is the main reason why the Act makes specific provision for disposal of all the disputes relating to questions of title in the course of the consolidation proceedings. All such proceedings pending before any authority or court of original jurisdiction, appeal, reference or revision are to be stayed as held in Kushar v. Ahmad Khan 1962 ALJ 564.

Section 5 (2) (a) of the Act provides that every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or 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.

The said provision is very widely worded. Under it the suit and proceeding in respect of declaration of rights or interest pending before any Court or authority at any stage upon, declaration of notification u/s 4 (2), shall stand abated. One of the riders is that in respect of such rights or interest, the proceeding can or ought to be taken under this Act. It follows that all the proceedings relating to rights or Interest which can be adjudicated upon under this Act, shall be adjudicated upon under the said Act. In other words, in respect of the proceeding which has already taken place under the said Act, there Is no need to reagitate and readjudicate the same issue already decided. Once being agitated under the Act even if, proceeding was pending on the date of issue of the notification u/s 4A, the same shall continue to its logical end and it will not be abated.

The controversy involved herein is no longer res-integra and has been set at rest by authoritative pronouncement in the case of Suraj Mal and Another Vs. Ram Singh and Others, , wherein, it has been held that Section 4A will apply only where the consolidation operation remained closed for a period of ten years from the date of the notification u/s 52 (1). But in view of Sub-section (2) of Section 52 of the Act, the consolidation operation shall be deemed to have not been closed in respect of the two cases, namely, (i) writ petition and (ii) cases or proceedings pending under the Consolidation Act on the date of issue of the notification. Consequently, it has been held that the provision of Section 4A as also the provision of Section 5 will not apply to aforesaid two cases. The object of Sub-section (2) of Section 52 is that when an order has been passed by a Court under the provisions of the Constitution of India or in cases or proceedings pending under the Consolidation Act, the right or interest Involved in such order or in the pending cases or proceedings under the Consolidation Act, should not be again subjected to the consideration in the consolidation proceedings started by virtue of a notification u/s 4A of the Consolidation Act.

A learned single Judge following the aforesaid decision of the Apex Court in the case of Baburam and Ors. v. 1st Additional District Judge, Meerut and Ors. 1992 AWC (Supp) 558, has held that the Act does not bar continuation of a proceeding, which was taken under the Act itself.

As against the above, Learned Counsel for the Respondents could not place any material on record to take a different view of the matter.

In my considered view, the controversy on hand stands concluded by the aforesaid two judgments relied upon by the Learned Counsel for the Petitioner.

In view of the above, the writ petition succeeds and is allowed.

The impugned order dated 24th August, 1982, is hereby, set aside and the matter is restored back to the court below to rehear and redecide the Civil Misc. Appeal No. 154 of 1979, Daya Shankar and two Ors. v. Ram Sunder Rai and thirteen Ors., on merits on remaining points. No order as to costs.