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1964 DIGILAW 383 (ALL)

Hari Nam Singh v. Mst. Ram Dulari

1964-11-09

D.S.MATHUR

body1964
ORDER D.S. Mathur, J. - The point contended on behalf of the applicant, Hari Narain Singh, is that after the confirmation of the Statement of Proposals u/s 23 of the then UP Consolidation of Holdings Act (to be referred hereinafter as the Act), it was necessary for the Civil Judge to decide the reference u/s 12(4) of the Act in accordance with the Statement of Proposals so confirmed, all the more, where no objection u/s 20(2) of the Act had been filed, and consequently the orders of the subordinate courts are illegal and without jurisdiction and this Court should rectify the error by passing an order in accordance with the Statement of Proposals so finalized u/s 23. In connection with this question it shall also have to be considered whether in view of Section 22(2) of the Act this Court can pass any final order in the revision or must stay its hearing, If the revision cannot be disposed of, it shall be kept, pending without any final order, though suitable order shall be passed at a proper stage in accordance with the law. 2. The Act was drastically amended in 1S58 and the law as it stood before such amendment contained many provisions which could be said to be ambiguous and to cause inconvenience to the public. But if it be Sound that the various provisions can be harmonized or can be given a clear and unambiguous interpretation, the law must have its course and the Courts cannot be unduly guided by equity or inconvenience to the public. 3. Sections. 12(7) and 22(4) of the Act make one point clear, namely, that a person who does not file an objection u/s 12(1) cannot raise the question of title in the objection u/s 20(2) or u/s 34(1), and one who does not file an objection u/s 20(2) cannot raise the question of title in the objection u/s 34(1). These clauses can lead us, to only one inference, namely, that it is necessary for the aggrieved party to file an objection at each stage, inespective of whether the question of title had earlier been determined or finally determined or not, if the entry in the Statement published u/s 11, or Statement of Proposals, or the order passed under Sections. 29, 31 and 33 of the Act is against him. 4. Similarly, there is a difference in the phraseology of Sections. 29, 31 and 33 of the Act is against him. 4. Similarly, there is a difference in the phraseology of Sections. 12 (4), and 22(1) and 36(1) of the Act, whereunder a question of title can be referred to the Civil Judge for determination in accordance with the law. Section 12(4) speaks of the question not having been determined by a competent court, while Sections 22(1) and 36(1) of final determination by a competent court. It is, therefore, not necessary for the Consolidation Officer to refer the question of title to the Civil Judge u/s 12(4) if that question has already been determined by a competent court, though not finally determined, but the question of title must be referred to the Civil Judge under the subsequent two Sub-sections unless there has been final adjudication by a competent court. This will also suggest that a party filling an objection u/s 12(1) should made an objection under Sections 20(2) and 34(1) also if the entry in the Statement of Proposals, or the order contemplated by Section 34(l) of the Act is against him. 5. Making of a reference to the Civil Judge without its final decision will cause inconvenience and unnecessary expenses to the parties; in addition the time of the Arbitrator and of the courts of law shall be wasted. The courts of law can, therefore, assume, unless there is anything repugnant in the Act, that the legislature had the intention to make a law such that a reference once made under the Act shall be finally decided by the Civil Judge in accordance with the law, in other words, Sections 22(2) and 36(2) of the Act do not apply to a reference already made u/s 12(4) of the Act, nor to appeals or revisions arising out of such references and such references, appeals and revisions are not to be stayed on the publication of Statement of Proposals and the passing of orders contemplated by Section 34(1). 6. It shall, however, be found that Sections 22(2) and 36(2) have been worded generally to cover all the appeals, references and revisions, and further the legislature made no attempt to remove the ambiguity while amending Section 22(2) of the Act under UP Act No. XVI of 1957. 6. It shall, however, be found that Sections 22(2) and 36(2) have been worded generally to cover all the appeals, references and revisions, and further the legislature made no attempt to remove the ambiguity while amending Section 22(2) of the Act under UP Act No. XVI of 1957. Under unamended Section 22(2) all suits or proceedings in the Court of first instance, appeal, reference or revision, in which the question of title in relation to the same land had been raised, were to be stayed upon the making of reference under Sub-section (1) of Section 22. Consequently, if a party did not make any objection u/s 20(2), the reference made earlier had to be continued, though the hearing of such reference had to be stayed on a reference made u/s 22(1) for decision of a question of title raised in the objection made u/s 20(2). On the basis of that provision it could also be urged that it was not necessary for a party who had already filed an objection u/s 12(1) to make a fresh objection u/s 20(2) or u/s 34(1;; but since after the amendment such an objection has to be made. This shall also appear from the other amendments made under UP Act No. XVI of 1957 and also the earlier amending Acts. 7. The intention of the legislature can also be judged from the provisions of the amending Act, as is often said, by determining what the law was prior to the amendment, why the amendment was necessary and the method adopted by the legislature for remedying the defect. In other words, since after the commencement of UP Act No. XVI of 1957, it shall have to be held that a reference made u/s 12(4), if not finally decided, shall have to be stayed on the publication of the statement of Proposals even though the stay may cause unnecessary inconvenience and expense to the parties. 8. In the above circumstances, the earlier decisions of this Court are suitably explained and none, in my opinion, require reconsideration. In one case brother Oak, J. had expressed the view that it was not necessary for the Consolidation Officer to refer the question of title to the Civil Judge u/s 12(4) of the Act if such question had been determined, though not finally, by a competent court. In one case brother Oak, J. had expressed the view that it was not necessary for the Consolidation Officer to refer the question of title to the Civil Judge u/s 12(4) of the Act if such question had been determined, though not finally, by a competent court. This shall not cause irreparable injury to any one as the question of title can be raised afresh in the objection u/s 20(2), when it shall be necessary for the Consolidation Officer to refer the question of title to the Civil Judge u/s 22(1) for determination. The question shall then be decided in the same manner as it would have been decided in a reference u/s 12(4). 9. Tila Devi v. Consolidation Officer Faizabad and Others (1) (1964 ALJ 919 ) is based upon the provisions of Section 22 (2) as it existed prior to the amendment in 1957. This would be apparent from the observation in Para 1 at page 920 column 2. Ganga Singh v. The Deputy Director of Consolidation and Others (2) (1962 AWR 450) has been overruled by the Division Bench decision in Ram, Bharosey Lal v. Deputy Director of Consolidation, Uttar 'Pradesh at Fatehpur and Others (3) (1964 AWR 424) on one point, but not on the other points decided by Hon'ble Srivastava, J. That view is in consonance with the law laid down above. 10. In Attar Singh v. Dhoop Singh and Others (4) (1963 ALJ 975) it was observed that order u/s 23 of the Act confirming the Statement ox Proposal is open to one exception only, that is, to the decision in a reference made u/s 22(1) of the Act. It is true that in Section 23 the word "reference" has been used generally, but in the light of the other provisions it can be given a restricted meaning and to mean references u/s 22(1). The above observation, though a mere obiter dicta, can be taken to lay down the law correctly and no reconsideration is necessary. 11. The Court of the Civil Judge and also the higher courts are regular courts and are not authorities created under the Act, and consequently, the provision for stay of suits or proceedings shall apply to all the proceedings pending before them. On this ground 1964 AWR 424 (supra) is inapplicable, and the present revision deserves to be stayed. 12. 11. The Court of the Civil Judge and also the higher courts are regular courts and are not authorities created under the Act, and consequently, the provision for stay of suits or proceedings shall apply to all the proceedings pending before them. On this ground 1964 AWR 424 (supra) is inapplicable, and the present revision deserves to be stayed. 12. While detailing the inconveniences to which the opposite party Smt. Ram Dulari, shall be put, it was mentioned before me that under mistaken legal advice she did not file an objection u/s 20 (2) and as a result of the adoption of the above view she shall suffer an irreparable injury. This point is of no great consequence, as the consolidation authorities have the power to condone the delay, and to entertain an objection u/s 20(2) even after the expiry of the prescribed period provided that they are satisfied that there was sufficient cause for not making the objection earlier. 13. The hearing of the revision is stayed, though it shall be open to the parties to move the court at the proper stage for passing a final order. Let a copy of the order be furnished to the learned Advocates for the parties on their making urgent applications.