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1959 DIGILAW 323 (ALL)

Dilli v. Dy. Director of Consolidation

1959-11-04

O.H.MOOTHAM, R.DAYAL

body1959
JUDGMENT O.H. Mootham, C.J. - In this appeal, which is from an order of Mr. Justice Jagdish Sahai dated 2-4-1958, the principal question which arises is the validity of Rule 34(3) of the U.P. Consolidation of Holdings Rules. 2. Proceedings under the Consolidation of Holdings Act, 1953, are in progress in the village in which the Appellants and Respondents Nos. 4 and 5 reside. The Assistant Consolidation Officer prepared a statement of plots and tenure-holders pursuant to Section 11 of the Act and in that statement the Appellants were recorded as sirdars of plot No. 92/2 and these Respondents as trespassers thereon, The Respondents disputed the correctness of this entry and filed an objection Under Sub-section (1) of Section 12 contending that they ought to be recorded as sirdars and the names of the Appellants expunged. That objection was dismissed by the Consolidation Officer on 20-12-1956. Thereupon the Respondents filed an appeal Under Rule 34(3) of the Rules before the Settlement Officer. That officer held that the Respondents had acquired the status of sirdars and by an order dated 28-5-1957, he allowed the appeal and set aside the order of the Consolidation Officer. An application in revision by the present Appellants to the Deputy Director, Consolidation, was dismissed on 26-11-1957. The Appellants then filed a petition in this Court Under Article 226 of the Constitution which was dismissed by the order the subject of the present appeal. 3. The principal argument addressed to us is that no appeal lay from the order of the Consolidation Officer as Rule 34(3) is ultra vires the powers of the State Government and is invalid. 4. Section 12 of the Act, as it then stood and so far as is material, read thus: 12(1). Every person interested in disputing the correctness or nature of an entry in the statement published u/s 11 or pointing out any omission therefrom shall within thirty days of the publication of the statement Under Sub-section (2) of Section 11, file objection, if any on the statement before the Assistant Consolidation Officer in the manner prescribed. (2) The Assistant Consolidation Officer shall, after hearing the parties, if necessary, on the objections filed Under Sub-section (1) together with the views of the Land Management Committee submit his report on those objections to the Consolidation Officer who shall, except as provided in Sub-section (4), dispose of the objections in the manner prescribed. (2) The Assistant Consolidation Officer shall, after hearing the parties, if necessary, on the objections filed Under Sub-section (1) together with the views of the Land Management Committee submit his report on those objections to the Consolidation Officer who shall, except as provided in Sub-section (4), dispose of the objections in the manner prescribed. (3) The decision of the Consolidation Officer shall, except as otherwise provided by or under this Act, be final. 5. Rule 34 makes provision for the hearing of objections u/s 12(1) and Sub-rule (3) then provided that Any person aggrieved by the order of the Consolidation Officer may file an appeal within 15 days of the order before the Settlement Officer (Consolidation) whose decision, except in cases of arbitration as provided in the Act, shall be final. 6. This sub-rule has been made by the State Government in purported exercise of its powers u/s 54 of the Act, Sub-section (1) of this section providing that The State Government may make rules for the purposes of carrying into effect the provisions of this Act. 7. Sub-section (2) enumerates the various matters with regard to which, without prejudice to the generality of the power conferred by Sub-section (1) the State Government may make rules, but it is common ground that the provision of an appeal from an order of the Consolidation Officer made u/s 12 of the Act is not one of such matters. 8. There is no doubt that a right of appeal must be founded on some statutory provision and it is the contention of learned Counsel for the Appellant that the Consolidation of Holdings Act contains no provision, express or implied, for an appeal from the order of a Consolidation Officer made u/s 12(2). Therefore, it is argued, the State Government can make no rule conferring a right of appeal as the State Government's power to make rules is restricted to the making of such rules only as are necessary for the purpose of carrying into effect the provisions of the Act. Therefore, it is argued, the State Government can make no rule conferring a right of appeal as the State Government's power to make rules is restricted to the making of such rules only as are necessary for the purpose of carrying into effect the provisions of the Act. It is pointed out that where the legislature wanted to make a provision for appeal it has done so in clear terms in the Act itself; for example, in Sub-section (4) of Section 8 it had provided for an appeal from an order of an Assistant Consolidation Officer made Under Sub-section (3) of that section; in Sub-section (2) of Section 17 it had provided for an appeal against an order of a Consolidation Officer made Under Sub-section (1) and in Sub-section (2) of Section 21 it had made provision for an appeal from an order of a Consolidation Officer made Under Sub-section (1). 9. The question is whether a rule providing for an appeal from an order of a Consolidation Officer u/s 12(2) is a rule for the purpose of carrying into effect the provisions of the Act; for if it is, then it is not in dispute that the rule is valid. 10. How Sub-section (3) of Section 12 provides that the decision of the C.O. shall be final "except as otherwise provided by or under this Act". The Consolidation Officer's order is not necessarily final; it will be final only if provision to the contrary is not made "by or under this Act." A provision for appeal from the order would, in our opinion, come within the expression "otherwise provided" within the meaning of the sub-section; and the question therefore resolves itself into in, what is meant by the phrase "by or under this Act". The Appellant contends that that phrase means 'expressly or by implication under the Act'; but we think this is too narrow an interpretation. If the phrase were "by the Act" it might legitimately be argued that the provision "otherwise" contemplated by the sub-section would have to be found in the Act itself, so also, but with much less force, it might be argued if the phrase were "under the Act." The legislature has however used both the prepositions; the phrase is "by or under" the Act and we must, if possible, so construe the expression that neither word becomes redundant. In Bishnu Charan Mukherjee and Another Vs. State of Orissa, AIR 1952 Ori 11 it was held that the phrase "under the Act" when used in a statute takes its meaning from the context in which it is used and that in an appropriate context it can mean not merely the provisions of the Act but statutory rules framed in accordance with the provisions of the Act. In our opinion the reasonable interpretation to give to the phrase we are now considering and that intended by the legislature, is "by the Act or under rules made under the Act." If this be so, then Rule 34(3) is a rule made for the purpose of carrying into effect the provisions of the Act. 11. The Appellant has relied on two cases, but both in our opinion are distinguishable. The first of these is The Attorney General v. Sillem 10 House of Lords Case 704. By Section 26 of the Queen's Remembrancer's Act, 1859, the Barons of the Court of Exchequer were given authority to make rules with regard to the process, practice and mode of pleading in revenue cases in that Court. By virtue of this section the Barons made rules in which they purported to grant an appeal from a decision of the Court of Exchequer to the Exchequer Chamber and to the House of Lords. The house of Lords held that they could not do so. Lord Westbury, L.C., in the course of his judgment said: The creation of a new right of appeal is plainly an act which requires legislative authority. The Court from which the appeal is given and the Court to which it is given, must both be bound and that must be the act of some higher power.... In making the orders now in question, the Barons of the Court of Exchequer have assumed that a discretionary power to exercise this legislative authority or not and thereby to confer or to withhold, this important benefit of new rights of appeal, has been given to them by Section 26 of the Act of 1859. If the Legislature has done this, it has done a thing which is very irregular and which antecedently would seem to be very improbable. 12. The second case is A.S. Nagappa Chettiar v. Annapoorani Achi AIR 1941 Mad. 235 . If the Legislature has done this, it has done a thing which is very irregular and which antecedently would seem to be very improbable. 12. The second case is A.S. Nagappa Chettiar v. Annapoorani Achi AIR 1941 Mad. 235 . In this case a Full Bench of the Madras High Court held that a rule conferring a right of appeal made by the Provincial Government u/s 28 of the Madras Agriculturists Relief Act was ultra vires. We have not the Act in question before us but it appears from the judgment that the impugned rule was made in purported exercise of powers conferred on the State Government by Sub-sections (1) and (2)(c) of Section 28 of the Act which provided that The Provincial Government may make rules for carrying into effect the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power the Provincial Government may make rules. (a) ... ... ... (b) ... ... ... (c) for removing any difficulty in giving effect to the provisions of this Act. The Court held that in making a rule providing for appeal the Provincial Government was not making a ride for carrying into effect the purposes of the Act but was adding something to it. The Court was of opinion that as the provision of an appeal was neither a purpose of the Act not necessary for removing a difficulty the impugned rule was necessarily invalid. The case differs from that before us as there appears to have been no section (such as Section 12(4) of the Consolidation of Holdings Act) which could be construed as enabling the Provincial Government to make a rule providing for an appeal. 13. It is then contended that the Settlement Officer could not on appeal decide a question of title which he should have referred to arbitration. This submission found no place in the grounds upon which the relief sought in the petition was founded, nor is it included in the grounds stated in the memorandum of appeal. We do not therefore propose to consider it. 14. The last submission is that in deciding the appeal the Settlement Officer should have taken into consideration the documents which had been filed by the Appellants in earlier proceedings between the parties which had taken place u/s 8(3) of the Act. We do not see any force in his contention. We do not therefore propose to consider it. 14. The last submission is that in deciding the appeal the Settlement Officer should have taken into consideration the documents which had been filed by the Appellants in earlier proceedings between the parties which had taken place u/s 8(3) of the Act. We do not see any force in his contention. Apart from the fact that proceedings u/s 12 are quite distinct from those u/s 8 it is clear from the appellate order that the Settlement Officer had before him the order of the Assistant Consolidation Officer in the proceedings u/s 8(3) and that order (which was in the Respondent's fovour) not having been challenged on appeal had become final. 15. In our opinion this appeal fails. It is accordingly dismissed with costs. Appeal dismissed.