Baturam v. Ist Additional District Judge — 1992 DIGILAW 1176 (ALL)

JUDGMENT M.L. Bhat, J. - The orders of I Civil Judge, Meerut dated 21-8-1981 as well as the orders of 1 Addl. District Judge, Meerut dated 15-2-1982 are prayed to be quashed in this writ petition. The facts giving rise to the filing of this writ petition are as under. 2. By virtue of the notification dated 16-3-1955 u/s 4(2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as 'the Act') Settlement Officer was appointed to carry out the scheme of consolidation. The dispute between the parties related to Khatas No. 447 of village Tehariki, Pergana and Tahsil Sardhana, district Meerut (hereinafter referred to as 'the concerned village'). According to the Petitioners some persons were recorded in the respective Khatas prior to 1954 whose names are given in para 2 of the writ petition. These Khatas were put together and given a new number as Khata No 44. The names of both the litigating parties were recorded over the aforesaid Khata. The consolidation officer is said to have proceeded to carve out Chaks in the concerned village without declaring the share of the tenure holders and without making partition. This gave rise to filing of a writ petition by the Villagers in the year 1956. The High Court is said to have directed the Consolidation authorities to first determine the share of the parties and partition the holding before proceeding to prepare the consolidation scheme and carvation of chak. 3. On 20-2-1963 the petitioners' predecessor-in-interest is said to have filed objection u/s 9 of the Act. He is said to have divided the land in two schedules. Part of the land was claimimed by him to be ancestral property of the Petitioners and the petitioners' ancestor was said to be the exclusive tenure holder of the said land. Part of the land is said to hate been acquired by the parties through sale deeds and the ancestor of the opposite parties was coopted as co tenure holder to the extent of one-fifth Share. The Consolidation Officer is said to have decided the objection on 7-4-1993. He declared the share of the Petitioners as 3/4th and the remaining l/4th was declared as share of the opposite parties in all the three Khatas. On appeal, the order of the Consolidation to 2/3 while the share of the opposite parties was declared as 1/3 in all the three Khatas. He declared the share of the Petitioners as 3/4th and the remaining l/4th was declared as share of the opposite parties in all the three Khatas. On appeal, the order of the Consolidation to 2/3 while the share of the opposite parties was declared as 1/3 in all the three Khatas. The Deputy Director of Consolidation is said to have allowed the revision against this order of the Settlement Officer (Consolidation) and has remanded the case back to the Settlement Officer consolidation vide its order dated 5-10-1963. The Settlement Officer Consolidation is said to have decided the case afresh on 22-11-1963. The petitioners' share was declared by him as 3/4 and that of the opposite parties as 1/4. The revision filed by the opposite parties against the said order was dismissed on 9-1-1964. 4. It is stated that the opposite parties started filing fresh Misc. Applications claiming 1/2 of the share in the disputed holdings. The Consolidation Officer on 11-4-1974 dismissed the applications as time barred. The appeal against the said order was also dismissed. However, the revision was allowed by the Deputy Director of Consolidation against the said order on 18-11-1974. A direction was issued to the Settlement Officer Consolidation to refer the matter to the arbitrator u/s 22 of the Act. The Settlement Officer Consolidation remanded the case to the Consolidation officer to comply with the order of remand. The opposite parties filed at revision against this order, which was dismissed. On 28-5-1965 the Consolidation Officer referred the matter to the Civil Judge, who framed the following issue for determination : Whether the objector is co bhumidhar and has 1/8 share in the Khata in dispute ? 5. In all five references were made. These references concerned to the opposite parties, who were five in number. These references were referred by the Civil Judge to the Sub-Divisional Magistrate, Mawana, who was arbitrator and he sent the award to the Civil Judge. The Petitioners are said to have filed objections in all the references challenging the award. 6. During the pendency of the references before the I Civil Judge the State Government is said to have issued a notification on 21-7-1965 u/s 52(1) of the Act. On 11-6-1980 another notification issued by the State Government, which was published in the Official Gazette dated 30-8-1980. 6. During the pendency of the references before the I Civil Judge the State Government is said to have issued a notification on 21-7-1965 u/s 52(1) of the Act. On 11-6-1980 another notification issued by the State Government, which was published in the Official Gazette dated 30-8-1980. The entire village is said to have been brought under the Consolidation operation u/s 4A(2) read with Section 2 of the Act. A copy of the notification is placed by the Petitioner on the file. The Consolidation proceedings started again in pursuance of the aforesaid notification. Extracts of records and statements were published. The parties were also given notice of the same. The Petitioners filed objection u/s 9 of the Act before the Assistant Consolidation Officer, who referred the matter to the Consolidation Officer. The opposite parties are also said to have filed objection. After the objections are decided by the Consolidation authorities the parties are barred to raise any claim in respect of the matters which are decided by the Coasolidation authorities. Any proceedings pending in respect of the holdings before any Court or authority would abate u/s 5 of the Act. According to Section 5(2) of the Act the reference proceedings pending before the I Civil Judge, Meerut stood abated. The Petitioners are said to have made an application before the I Civil Judge (Respondent No. 2) Meerut for declaring the proceedings as abated. However, the Respondent No. 2 dismissed the application of the Petitioners on the ground that Section 5(2) (a) of the Act will not apply to the facts of the case pending before him. The Petitioners thereupon filed fivd revision petitions before the Respondent No. 1, which were dismissed, after consolidating them, by a common order dated 15-2-1982. 7. The order passed by the Respondents No. 1 and 2 are said to be illegal. It is stated that they have failed to to exercise the jurisdiction vested in them. The petitioners' application for abatement of the proceedings are said to have been wrongly dismissed and the dismissal of the application is in violation of law. Section 5(2) of the Act having over-riding effect over the provisions of other enactments would come into play and its non-application by the Respondents No. 1 and 2 is said to be bad. 8 The opposite parties have filed counter affidavit. Section 5(2) of the Act having over-riding effect over the provisions of other enactments would come into play and its non-application by the Respondents No. 1 and 2 is said to be bad. 8 The opposite parties have filed counter affidavit. It is stated that the Consolidation Officer has stayed the decision on the fresh objection filed by the Petitioners on the ground that the decision is to be given by the Civil Judge in the references pending before him. It is stated that Section 5(2) of the Act will not apply to the facts of the case. The proceedings before the Respondent No. 2 shall not abate. The orders passed by the Respondents No. 1 and 2 are said to be correct in law. The order of the Respondent No. 1 is also defended. 9. The Petitioners have filed rejoinder affidavit also. It is stated that the Respondent No. 2 has wrongly rejected the application of the Petitioners. The said application is said to have been made u/s 5 of the Act. The proceedings before the Respondent No. 2 were liable to be abated. The Respondents No. 1 and 2 are said to have acted without jurisdiction and they have passed the orders which are illegal. 10. The lerrned counsel for the parties were heard. The sole question for determination in the writ petition is whether the references pending before the Respondent No. 2 also would abate or not. Section 22 of the U.P. Consolidation of Holdings Act was deleted by the U.P. Act No. VIII of 1963 with effect from 8-3-1963. The said Section, as it stood before 8-3-1963, reads as under : (1) Where any objection filed u/s 20 involves a question of title in or over land and such question has not already been finally determined by a competent Court, the Consolidation Officer shall refer it for determination to the Arbitrator ; (2) All suits or proceedings in the Court of the first instances or appeal in which a question of title in relation to same land has been raised shall be stayed. (3) Tne decision of the Arbitrator shall be final. 11. u/s 4 of the Act the State Government has the power to bring a district OF part thereof under consolidation operations ; it can make a declaration to this effect and other consequences mentioned in the said Section would thereupon ensue. (3) Tne decision of the Arbitrator shall be final. 11. u/s 4 of the Act the State Government has the power to bring a district OF part thereof under consolidation operations ; it can make a declaration to this effect and other consequences mentioned in the said Section would thereupon ensue. The declaration is to be made by the State Government by issuing a notification with regard to matters specified in Section 4 of the Act. u/s 4A of the Act if in respect of a district or part thereof notification had already been issued u/s 52 of the Act, if it appears expedient in the public interest to the State Government so to do, it may make a declaration by notification in the Cazette that such district or past thereof may again be brought under consolidation operations. Under the proviso to this seection no such declaration shall be issued within 10 years from the date of notification referred to in the said Section. This means that if the consolidation operation district or part thereof, it can be brought within the purview of consolidation Scheme again after 10 years from the date of issuance of notification u/s 52 of the Act. 12. Section 5 of the Act contains the effect of notification u/s 4(2). The relevant portion for our purpose is Section 4(2)(a), which reads as under: 4(2) : Upon the said publication of the notification under sub-Section (2) of Section the following further consequences shall ensue in the area to which the notification relates namely -- (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 on adjudcation of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or authority wheiher 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 proceedings is pending, stand abated. 13. 13. From the close scrutiny of this provision it appears that during the operation of the consolidation proceedings no other proceedings which ought to have been taken under the Act would survive and all proceedings pending before any Court or authority whether of the first instance or appeal or revision or any suit shall abate but if the proceeding is taken under the Consolidation of Holdings Act and that proceedings is not inconsistent or in derogation to the provisions of the Consolidation of Holding Act, such proceeding would survive and it would not abate as contended by the learned Counsel for the Petitioner. The suits or proceedings of original nautre or pending in the appellate or revisional Court are different from the cases and the proceedings, which have been initiated under the Act. The previous proceedings u/s 22 were taken under the Consolidation of Holding Act and not under any other Act. Therefore, Section 5(2) would not apply to such proceedings Section 5(2) bars continuation of a proceeding, which ought to have been taken before the authorities under the Consolidation of Holdings Act after the said Act became operative in a district or a part thereof. The act does not bar continuation any proceeding, which was taken urder the Act itself. My finding on this point is fortified by an authority of the Supreme Court in Suraj Mal v. Ram Singh 1986 RD 344 . 14. There is yet another Section 49 in the U.P. Consolidation of Holdings Act. This Section bars the jurisdiction of Civil Court in respect of those matters, which are congnizable by the authorities under the Consolidation Act or which ought to have been brought before the authorities under the said Act. Section 5(2) and Section 49 of the Act are some what coextensive. They operste in two different situtations but the effect is the same, ousting of jurisdiction of Civil Court and other authorities which deal with the matters which are to be dealt with by the authorities under the Consolidation of Holdings Act. Both these Sections refer to the proceedings, which are taken under some different enactment with, regard to declaration or adjudication of any right. The provisions of the Consolidation of Holdings Act have an over-riding effect. Therefore, during the operation of Consolidation proceedings such matters are to be brought before the authorities under the Consolidation of Holdings Act. 15. Both these Sections refer to the proceedings, which are taken under some different enactment with, regard to declaration or adjudication of any right. The provisions of the Consolidation of Holdings Act have an over-riding effect. Therefore, during the operation of Consolidation proceedings such matters are to be brought before the authorities under the Consolidation of Holdings Act. 15. I have scrutinised the impugned orders. These impugned do not infringe any of the provisions of the provisions of the Consolidation of Holdings Act and do not suffer from any illegality. 16. For the reasons mentioned above this writ petition fails and is dismissed. However, there will be no orders as to costs.