Kshetrapal Singh v. State of Uttar Pradesh — 1975 DIGILAW 528 (ALL)

JUDGMENT : K.N. Seth, J. The above noted petitions raise a common question and may conveniently be disposed of by a common judgment. 2. The Petitioners are tenure holders to whom notices, together with copy of the statements prepared under Sub-section (1), have been issued under Sub-section (2) of Section 10 of the U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Ceiling Act). Some of the Petitioners filed objections challenging the correctness of the statements prepared by the Prescribed Authority. Thereafter they made applications to the Prescribed Authority asserting that as the villages where their holdings are situate have come under consolidation operations consequent to notifications issued u/s 4(2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Consolidation Act), the proceedings under the Ceiling Act cannot continue and should be abated and may be revived after the consolidation operations are complete and notifications u/s 52 of the Consolidation Act are issued. The Prescribed Authority rejected the applications. The view taken by the Prescribed Authority has been challenged in some of the petitions noted above. Other Petitioners have approached this Court challenging the validity of the notices issued u/s 10(2) of the Ceiling Act as also the validity of the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 (U.P. Act No. 18 of 1973) on the ground that the said Act is ultra vires as its provisions are violative of Articles 14, 19 and 31 of the Constitution. During the course of hearing the Petitioners specifically gave up the challenge to the validity of the various provisions of the Act and confined their submissions to the question whether the proceedings under the Ceiling Act can be validly continued in view of the fact that the villages where the holdings of the Petitioners ire situate are under consolidation operations. 3. It was contended that in view of Section 5(2) of the Consolidation Act proceedings under the Ceiling Act cannot continue and are liable to be abated. It was urged that so long as the villages in question are under Consolidation operations and notifications u/s 52 of the Consolidation Act are not issued, the Respondents are not competent to continue with the proceeding s under the Ceiling Act and decide disputes about rights and interest in the land. It was urged that so long as the villages in question are under Consolidation operations and notifications u/s 52 of the Consolidation Act are not issued, the Respondents are not competent to continue with the proceeding s under the Ceiling Act and decide disputes about rights and interest in the land. It was further urged that fill the consolidation proceedings conclude the Petitioners cannot be certain about their rights or interest in any land and cannot exercise their choice u/s 12-A of the Ceiling Act in some cases they may even be left with land below the ceiling limit. 4. In support of the contention that the proceedings under the Ceiling Act should be declared to have Abated reference was made to Sub-section (2) of Section 5 of the Consolidation Act, which provides: (2).... (a) 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 passed in this behalf by the court or authority before whom such suit or proceeding is pending stand abated: .... Reliance was placed on the decision of the Supreme Court to The Agricultural and Industrial Syndicate Ltd. Vs. State of U.P. and Others, AIR 1974 SC 1920 wherein it has been held that the Prescribed Authority acting under Sections 10(2) and 12 of the Ceiling Act is an Authority within the meaning of that expression in Section 5(2) of the Consolidation Act and the proceeding before him will be a proceeding within the meaning of the said word in Section 5(2). The Court further held that the Prescribed Authority is required to decide u/s 12 whether the tenure holder has any rights or interest in all or some of the plots. He has also to adjudicate upon the claims that may be made by other rival claimants. The State Government is a party to every proceeding under the Ceiling Act as provided by Section 32. He has also to adjudicate upon the claims that may be made by other rival claimants. The State Government is a party to every proceeding under the Ceiling Act as provided by Section 32. In this view of the matter the proceeding u/s 12 of the Ceiling Act is a proceeding "in respect of declaration of rights or interest in any land" u/s 5(2) of the Consolidation Act and consequently the proceedings under the Ceiling Act cannot continue so long as the consolidation operations are going on and those proceedings must be abated but may be resumed after the notification u/s 52. 5. The legal position would have been simple if the Supreme Court decision still governed the question in issue. After the aforesaid decision the U.P. Legislature enacted the U.P. Land Laws (Amendment) Act, 1974 (U.P. Act No. 34 of 1974). By Section 21 of the aforesaid Act the following Explanation was added after Sub-section (2) of Section 5 of the Consolidation Act : Explanation- For the purpose of Sub-section (2) a proceeding under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 shall not be deemed, to be a proceeding in respect of declaration of rights or interest in any land. Learned Counsel for the Petitioners, however, contended that an Explanation is meant only to explain the statutory provision. It can neither ex-tend nor take away or whittle down the scope of the main section and on this Principle it must be held that inspite of the addition of the Explanation to Section 5(2) of the Consolidation Act, the principle laid down in the case of the Agricultural and Industrial Syndicate Limited (supra) still holds good. The argument is untenable. By adding the Explanation a legal fiction has been created. What is otherwise a proceeding in respect of declaration of rights or interest in any land is deemed not to be such a proceeding. That is the clear legislative intent behind the Explanation. Ordinarily an Explanation is intended to explain the scope of the main section and is not expected to enlarge or narrow down its scope but, as ruled by the Supreme Court in Hiralal Rattanlal Vs. State of U.P. and Another etc. That is the clear legislative intent behind the Explanation. Ordinarily an Explanation is intended to explain the scope of the main section and is not expected to enlarge or narrow down its scope but, as ruled by the Supreme Court in Hiralal Rattanlal Vs. State of U.P. and Another etc. etc., AIR 1973 SC 1034 , where the legislative intent clearly and unambiguously indicates an intention to do so, effect must be given to the legislative intent not-withstanding the fact that the legislature named that provision as an Explanation. In view of the Explanation it is no longer open to the Petitioners to contend that the proceedings under the Ceiling Act should be abated. 6. Learned Counsel then contended that the Explanation only shuts out the application of the first part of Section 5(2)(a) of the Consolidation Act, that the second part thereof remains operative and the ceiling proceedings have to be abated thereunder. Section 5(2)(a) is in two parts and affects two types of proceedings, namely, (1) proceedings for the correction of records and suits and proceedings in respect of declaration of rights or interest in land; and (2) suits or proceedings for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the Consolidation Act. There can be no doubt that the Explanation covers suits and proceedings of the first type and not those of the second type. The second category of proceedings are proceedings other than those in respect of declaration of rights or interest in any land. If such proceedings are pending elsewhere and can or ought to be taken under the Consolidation Act then those proceedings have to be abated, There are, however, no proceedings under the Ceiling Act other than those relating to declaration of rights or interest in land in respect of which it can be said that they can or ought to be taken under the Consolidation Act and consequently Section 5(2)(a) of the Consolidation Act is not at all applicable to any proceedings under the Ceiling Act. 7. It was next urged that the proceedings under the Ceiling Act should be stayed on the principle contained in Section 10 of the Code of Civil Procedure. Reliance was placed on Section 37 of the Ceiling Act which provides : 37. 7. It was next urged that the proceedings under the Ceiling Act should be stayed on the principle contained in Section 10 of the Code of Civil Procedure. Reliance was placed on Section 37 of the Ceiling Act which provides : 37. Any officer or authority holding an inquiry or hearing an objection under this Act, shall, in so far as it may be applicable, have all the powers and privileges of a civil court, and follow the procedure laid down in the Code of Civil Procedure, 1908, for the trial and disposal of suits relating to immovable property. It was contended that by virtue of Section 37 the provisions of Section 10 of the Code become applicable to the proceedings under the Ceiling Act. The argument is untenable. Section 37 applies to the procedure prescribed by the Code for the trial and disposal of suits to the inquiry or hearing of objections under the Ceiling Act. It does not apply all the provisions of the Code to the proceedings under the Ceiling Act. Section 10 is a part of the provision of the Code relating to jurisdiction of courts and res judicata. It is not one of the provisions prescribing the procedure for the trial and disposal of suits. By virtue of Section 37 of the Ceiling Act, Section 10 of the Code does not become applicable to the proceedings under the Ceiling Act. If Section 10 is held to be applicable, it must further be held that Section 11 of the Code will-also be attracted and in that case the decisions of the authorities under the Ceiling Act would operate as res judicata in other proceedings. That is obviously not so. This also indicates that Section 10 is not applicable to the proceedings under the Ceiling Act. Even if it be held that Section 10 is applicable to the proceedings under the Ceiling Act, its provisions will only be attracted to other proceedings under this very Act or under some other Act to which also Section 10 of the Code applies. The CPC has not been made applicable to the Consolidation Act. The proceedings under the Consolidation Act cannot be equated with a suit and the pendency of such proceedings shall he (not ?) attract the applicability of Section 10 to proceedings under the Ceiling Act. The CPC has not been made applicable to the Consolidation Act. The proceedings under the Consolidation Act cannot be equated with a suit and the pendency of such proceedings shall he (not ?) attract the applicability of Section 10 to proceedings under the Ceiling Act. The proceedings under the Ceiling Act cannot, therefore, be stayed u/s 10 of the Code on account of the pendency of the proceedings under the Consolidation Act. 8. There is no provision in the Ceiling Act for staying the proceedings under it on account of the consolidation proceedings. The Ceiling Act takes, notice of the Consolidation Act and has provided what effect the proceedings under the Consolidation Act will have on the proceedings under the Ceiling Act. Sub-section (7) of Section 5 of the Ceiling Act provides that a partition made under the Consolidation Act after the appointed date shall be taken into account in determining the ceiling area. Apart front this provision, there appears to be no other provision in the Ceiling Act relating to proceeding under the Consolidation Act. It thus appears that, except to the extent the Ceiling Act specifically provides, the proceedings pending under the Consolidation Act shall have no effect on proceedings under the Ceiling Act. 9. It was contended that unless the consolidation operations are concluded and the rights, title and interest of the tenure holders finally determined in respect of their holdings, it would neither be possible: to decide whether they came under the purview of the Ceiling Act nor to ascertain the surplus area. The tenure holders would also not be able to indicate their choice of the plots which they would like to retain as part of the ceiling area applicable to them and in that view of the matter also proceedings under the Ceiling Act can not be continued. The argument is devoid of any merit. Under the Ceiling Act the determination of the ceiling area applicable to a tenure holder has to be with reference to the date when the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 (U.P. Act No. 18 of 1973) came into force i.e. June 8, 1973 as provided by Section 5(1) of the Ceiling Act. Under the Ceiling Act the determination of the ceiling area applicable to a tenure holder has to be with reference to the date when the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 (U.P. Act No. 18 of 1973) came into force i.e. June 8, 1973 as provided by Section 5(1) of the Ceiling Act. Sub-sections (6) and (7) of Section 5 further provide that in determining the ceiling area applicable to a tenure holder any transfer or partition of land made after the 24th day of Jan., 1971, which but for the transfer or partition would have been declared surplus land under the Ceiling Act. shall be ignored and not taken into account, with certain exceptions. The Prescribed Authority under the Ceiling Act is empowered to decide the questions of rights or interest of the tenure holders in respect of the plots included in their holdings. This determination has to be with reference to the specified date. If on that date a tenure holder held land more than the ceiling area, the surplus land would be worked out. Any changes made as a result of the proceedings under the Consolidation Act would have no bearing on the determination of the ceiling area or the surplus area. The tenure holder has to exercise his choice of the surplus area with reference to the situation as it existed on the specified, date. If the tenure holder subsequently loses the right as a result of the consolidation proceedings or any other cause, e.g. as a consequence of a decree passed by a competent court, that would be of no consequence for on the specified date he held land in excess of ceiling arm-applicable to him which he was not entitled to retain and that would constitute the surplus area. If on the other hand alter the date of enforcement of Act No. 18 of 1973 any land has come to be held as envisaged in Section 29 of the Ceiling Act, the ceiling area shall be liable to be re-determined and land held by him in excess of ceiling area so re-determined shall be liable to be treated as surplus area. In view of this provision if the land held by a tenure holder on the specified date is augmented as a result of consolidation proceedings, the Ceiling Act makes provision for such a contingency and no practical difficulty in working out surplus area can possible arise. It may appear illogical that if a tenure holder loses a part of the area determined as the ceiling area applicable to him subsequent to such determination under the Ceiling Act, he may not be entitled to be compensated for such a loss, but if some more land has come to be held by him as a tenure holder subsequently in circumstances set out in Section 29 that will be taken into consideration and the ceiling area applicable to him shall be re-determined, but logic is not an essential feature of legislation and if the legislature in its wisdom enacts such a law, the Courts have no choice but to enforce it. It is possible to visualise that in some cases hardship may be caused to the tenure holders due to continuance and finalisation of the proceedings under the Ceiling Act while the consolidation operations are still going on but that cannot be a ground for abating or suspending the proceedings under the Ceiling Act. 10. No other point has been raised before us. 11. In the result the petitions fail and ace dismissed. The parties shall bear their own costs.