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1969 DIGILAW 124 (ALL)

Banshidhar v. Deputy Director of Consolidation, Lakhimpur Kheri

1969-04-04

G.D.SAHGAL, LAKSHMI PRASAD

body1969
JUDGMENT Lakshmi Prasad, J. - This special appeal is directed against an order dated August 5, 1966 by which a learned single Judge of this court has dismissed the appellant's petition under Article 226 of the Constitution on a preliminary point. 2. Dispute in the petition relates to an agricultural plot which stood recorded in the basic year in favour of Subedar respondent No. 4. A dispute arose at the time of the Partal in the course of consolidation proceedings as possession of the appellant was found. The appellant then preferred an objection under Section 9 of the U. P. Consolidation of Holdings Act claiming that he had become sirdar of the disputed plot by virtue of adverse possession from about 12 years. The claim was contested by respondent No. 4. Respondent No. 5, who had also filed an objection, subsequently supported the appellant alleging that after obtaining possession from respondent No. 4 on 17th June, 1953 in execution of his decree for ejectment against respondent No. 4 he let out the land to the appellant. The Consolidation Officer found that the appellant had failed to prove his adverse possession for the requisite period of time and accordingly rejected appellant's claim that he had be. come sirdar though directed that his name would continue to be recorded as a trespasser in column 9 of the Khetauni. The appellant then preferred an appeal. It was dismissed by a Settlement Officer (Consolidation) . He then preferred a revision which was likewise dismissed by a Deputy Director of Consolidation on 17th October, 1964. Thereupon he preferred the petition giving rise to this appeal. The prayer in the petition is that the aforesaid orders passed by the Consolidation Officer, Settlement Officer (Consolidation) and Deputy Director of Consolidation be quashed. 3. Respondent No. 4 contested the petition. On his behalf a preliminary objection was raised to the effect that the petition had become infructuous because provisional consolidation scheme had been meanwhile confirmed under Section 23 of the U. P. Consolidation of Holdings Act. 3. Respondent No. 4 contested the petition. On his behalf a preliminary objection was raised to the effect that the petition had become infructuous because provisional consolidation scheme had been meanwhile confirmed under Section 23 of the U. P. Consolidation of Holdings Act. The argument raised before the learned single Judge in support of the aforesaid preliminary objection was that whatever be the decision in an objection under Section 9, it would be of no use to the appellant since he without filing any objection under Section 20 of the Act allowed the provisional consolidation scheme to be confirmed under Section 23, and since the appellant's petition, even if allowed, would only give a direction to the consolidation authorities to decide the appellants' objection under Section 9 in a particular manner but that would serve no useful purpose because such decision would not in any way in the circumstances mentioned above affect the allotment of chaks which had become final and accordingly the petition itself should be dismissed as infructuous. This stand of respondent No. 4 found favour with the learned single Judge and he accordingly dismissed the petition has come up in appeal. 4. We have heard the learned counsel for respondent No. 4 in support of his preliminary objection at great length besides hearing the parties on the merits of the case itself. Before entering into the merit of the case, we may dispose of the preliminary objection raised on behalf of respondent No. 4 and accepted by the learned single Judge. The contention of the learned counsel has been that the Full Bench decision of this Court in the case of Sita v. State of U.P., 1968 ALJ 144 has not been correctly decided and, as such, it requires reconsideration. It may here be mentioned that the case before the Full Bench was governed by the Act as it stood prior to its amendment by U. P. Act XXXVIII of 1958 whereas the present case is governed by the Act as it stands subsequent to the amendment made in it by U. P. Act VIII of 1963. It may here be mentioned that the case before the Full Bench was governed by the Act as it stood prior to its amendment by U. P. Act XXXVIII of 1958 whereas the present case is governed by the Act as it stands subsequent to the amendment made in it by U. P. Act VIII of 1963. That being the position, we have to judge the merit of the preliminary objection raised on behalf of respondent No. 4 with reference to the provisions of the Act as it stands subsequent to the amendment by U. P. Act VIII of 1963, and accordingly the stand of the learned counsel that the Full Bench decision referred to above has not been correctly decided loses much of its importance. Still we may say that after hearing him we could not discover any valid reason to come to a conclusion that the said Full Bench decision requires reconsideration. With that observation we may proceed to examine the relevant provisions of the Act as it stands subsequent to its amendment in 1963. Section 23 provides :- "The Settlement Officer, Consolidation, shall confirm the provisional Consolidation Scheme- (a) if no objections are filed within in the time specified in Section 20; or (b) where such objections are filed, after such modifications or alterations as may be necessary in view of the orders passed under sub-secs. (1) to (4) of Section 21; (2) The provisional Consolidation Scheme so confirmed shall be published in the unit and, except as otherwise provided by or under this Act, shall be final. (3) ...................... " It is on the basis of the language of sub-secs. (1) and (2) of Section 23 that the argument of the learned counsel is that whenever provisional consolidation scheme is confirmed in the absence of there being any objection under Section 20 while an objection under Section 9 is still pending, it cannot in any manner be affected by the ultimate decision in objection under Section 9 which may be given subsequent to such confirmation. He contends that that is the plain meaning of the language employed by Section 23. He further points out that the words "except as otherwise provided by or under this Act" have been added in the last clause of sub-sec. He contends that that is the plain meaning of the language employed by Section 23. He further points out that the words "except as otherwise provided by or under this Act" have been added in the last clause of sub-sec. (3) by an amendment made in 1965 and it shall thus appear that till before that amendment the allotment orders passed in pursuance to confirmation of provisional consolidation scheme became final with the result that the same could not be disturbed by any subsequent decision in an objection under Section 9 even if such disturbance be held possible since after the amendment of 1965 by which the aforesaid words have been introduced. We are not impressed by any of these contentions. One of us had an occasion to consider the provisions of the Act as it stands since after its amendment in 1963 in relation to a similar point in Tulsi v. Deputy Director of Consolidation U.P., Lucknow in Camp at Unnao, Writ Petition No. 675 of 1966 decided on April 26, 1968. The entire scheme of the post 1963 Act has been considered in that judgment in detail. It is unnecessary to re peat all that has been said in that judgment. It may be sufficient to point out that under clause (a) of sub-sec. (1) of Section 19 under which a provisional consolidation scheme is prepared the entries in the annual register prepared under Section 10 are to constitute a basis of the rights and liabilities of a tenure-holder. Section 10 provides that the annual register shall be revised on the basis of the orders passed under sub-sec. (1) and sub-sec. (2) of Section 9-A and further that where any entry in the annual register published under sub-sec. (1) is modified in pursuance of an order passed under the Act, a reference to that order along with an extract of its operative portion shall be noted against the said entry. Sub-secs. (I) and (2) of Section 9-A deal with the disposal of objections that may be filed by a tenure-holder or any other person interested in accordance with sub-sec. (2) of Section 9. It shall thus be seen that the revised record envisaged by Section 10 has got to conform to the decisions that may ultimately be given in objections under Section 9. (2) of Section 9. It shall thus be seen that the revised record envisaged by Section 10 has got to conform to the decisions that may ultimately be given in objections under Section 9. So the moment it is laid down that the entries relating to the tenure-holders in the provisional consolidation scheme have to conform to the entries in the revised record prepared under Section 10. In other words, whenever an entry in an annual register prepared under Section 10 is corrected so as to bring it in conformity with the ultimate decision in objection under Section 9, that correction must have its repercussion in the corresponding entry made in the provisional consolidation scheme and if the provisional consolidation scheme is confirmed in the meantime then it must have its repercussion on the corresponding entry in the confirmed scheme. There is nothing in the language of Section 20 to justify an inference that an objection pending under Section 9 must be reiterated thereunder otherwise the party pursuing his objection under Section 9 would lose the benefit of the decision that may ultimately be given in his favour in that objection. The combined effect of Sections 20, 21 and 23 simply appears to be that if a provisional consolidation scheme is allowed to be confirmed without there being any objection under Section 20 then it cannot be reopened subsequently to get redress which could have been obtained by means of an objection under Section 20. It is true that the opening words of sub-sec. (2) of Section 20 are "subject to the provisions contained in Section 11-A" and Section 11-A provides that no question in respect of claims to land relating to the Consolidation area which might or ought to have been raised under Section 9, but has not been so raised shall be raised or heard at any subsequent stage of the consolidation proceedings. But that does not mean that a claim to land which has been raised under Section 9 is to be repeated under Section 20. The purpose of Section 11-A is to bar a claim to land at Section 20 stage if the same could have been raised at Section 9 stage and had not been raised. But that does not mean that a claim to land which has been raised under Section 9 is to be repeated under Section 20. The purpose of Section 11-A is to bar a claim to land at Section 20 stage if the same could have been raised at Section 9 stage and had not been raised. It would be doing no violence to the language of Sections 20 and 23 if it is held that under Section 20 only those objections are to be filed for which there existed no cause of action at Section 9 stage. Even if it be assumed for a moment that the language of Section 20 is also open to the other construction contended for by the learned counsel, it should be rejected for the simple reason that such a construction is likely to lead not only to multiplicity of proceedings but also conflicting decisions. It is a well-settled rule of construction that of the two possible interpretations one likely to lead to multiplicity of proceedings is to be rejected. Here we may refer to the following observations of the Full Bench in National Planners Limited v. Contributors etc., A.I.R. 1958 Pun. 230 on page 232 :- "It is a well known rule of construction that where a statute is ambiguous and susceptible of two constructions, convenience may be taken into consideration in the interpretation thereof. A construction which produces convenient results is favoured while a construction which produces inconvenient results is avoided. In any case the courts must steer clear of a construction which would be unjust, oppressive, unreasonable or absurd." 5. The argument raised on the basis of the amendment introduced in sub-sec. (3) of Section 23 in the year 1965 appears to present no difficulty. Merely because till before this amendment sub-sec. (3) of Section 23 said that the revised extract specifying the modified allotments shall be issued and the same shall be the final allotment orders for the tenure-holders concerned whereas since after the amendment of 1965 it says that the same except as otherwise provided by or under the Act shall be the final allotment orders for the tenure-holders concerned, it does not mean that till before this amendment of 1965 it was not possible to disturb the orders of allotment even subsequent to the modification of the confirmed consolidation scheme itself. Stage to issue orders of allotment arises only after the scheme has been confirmed. If the confirmed scheme can be modified then obviously what followed it has got to be modified in order to bring it in conformity with what it has to follow. The words "except as otherwise provided by or under this Act" may have been introduced in sub-Sec. (3) of Section 23 by way of an abundant caution. At any rate, the addition of these words cannot be a basis for holding that till before their addition it was not possible to disturb the allotment orders in any circumstance once they had been issued. Likewise the argument that there is no provision in the Act for giving effect to the final decision in an objection under Section 9 if.the same is given subsequent to the confirmation of the provisional consolidation scheme to be wholly untenable. In the Full Bench case it has been indicated that such a decision can be given effect to by moving an application under Section 38 (2) of pre-1958 Act. There is no identical provision in post-1963 Act. Under Section 42-A of post-1963 Act a clerical or arithmetical error apparent on the face of the record can be corrected. Under Section 38 (2) of pre-I958 Act a clerical or arithmetical mistake or error apparent on the face of the record could be corrected. There is thus no doubt some difference in the language of the two provisions. Still having regard to the fact that the entries in the provisional consolidation scheme are to be taken from the revised record prepared under Section 10, it is clear that if at any subsequent stage because of a correction having been made in the revised record in regard to any particular entry the corresponding entry in the provisional consolidation scheme or in the confirmed scheme if it has been in the meantime confirmed is not in conformity with the entry in the revised record, when it can reasonably be maintained that this non-conformity amounts to a clerical error which can be corrected under Section 42-A. However, assuming that Section 42A cannot be invoked in such circumstances, it appears that adequate relief in that behalf can certainly be had under Section 48 (3) of the Act. It is to be borne in mind that under Section 48 (3) the Director of Consolidation has power to examine not only the record of a decided case but also any proceedings taken. Preparation of provisional consolidation scheme and its confirmation are certainly proceedings taken. So if it is subsequently brought to the notice of the Director of Consolidation that the confirmed consolidation scheme contains a particular entry which is not in conformity with the corresponding entry in the revised record corrected in accordance with the final order passed in an objection under Section 9 it would be open to him to take action under Section 48 in order to bring it in conformity with its corresponding entry in the revised record, since as already indicated, the very basis of the preparation of a provisional consolidation scheme as provided in Section 19 is the revised record prepared under Section 10. So there is no substance in the contention that there is no provision in the Act whatsoever to implement the final decision in an objection under Section 9 given subsequent to the confirmation of provisional consolidation scheme. We have thus no doubt that the provisions of post-1963 Act do not appear to countenance the preliminary objection raised on behalf of respondent no. 4 which found favour with the learned single Judge. We accordingly reject the preliminary objection. 6. As indicated above, we heard learned counsel for the parties on the merits of the case also in our anxiety to dispose of the petition finally. On merit we find that the appellant has no case. The finding of fact recorded by the consolidation authorities is that the appellant had failed to prove his possession for the requisite period of time so as to acquire sirdari rights. That finding of fact could not be challenged in a petition under Article 226 of the Constitution. Once it is found that it is not possible to go behind that finding of fact it naturally puts the appellant out of court. In the face of this finding the appellant has no interest to maintain the petition and, as such, it is not for him to argue that the finding given in favour of respondent no. 4 appeared to be bad in law because it failed to take into consideration that respondent no. In the face of this finding the appellant has no interest to maintain the petition and, as such, it is not for him to argue that the finding given in favour of respondent no. 4 appeared to be bad in law because it failed to take into consideration that respondent no. 4 had been ejected in 1953 in execution of a decree for ejectment obtained by respondent no. 5 against respondent no. 4. If the appellant has no title, he must fail regardless of the fact whether or not the decision given in favour of respondent no. 4 is correct. In that view of the matter, it is unnecessary to examine the contention of the appellant that the decision of the consolidation authorities given in favour of respondent no. 4 is erroneous. 7. In view of the foregoing discussion, we dismiss the appeal and maintain the order dismissing the appellant's petition though on a different ground. We make no order as to costs.