Short title....
2.
Amendment of Sec. 5 of U.P. Act No. V of
1954.
The existing Section 5 of the Uttar
Pradesh Consolidation of Holdings Act, 1953
(hereinafter called the Principal Act) shall
be renumbered as sub-section (1) thereof, and
(i)
clause (b) of Sub-section (1) as so
renumbered, shall be omitted; and
(ii) after Sub-section (1) as so renumbered,
the following new Sub-section shall be added,
viz :
"(2)
Upon the said publication
of
the
notification, under sub-section (2) of Section
4, the following further consequences shall
ensue in the area to which the notification
relates, namely :(a)
every proceeding for the correction of
records every suit and proceeding in respect
of declaration or rights or interest in any
land lying in the area, of 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 being passed in that behalf by the court
or
authority before whom such
suit
or
proceeding is pending, stand abated.
Provided that no such order shall be passed
without giving to the parties notice by post
or in any other manner and after giving them
an opportunity of being heard
Provided further that on the issue of a
notification under sub-section (1) of Section
6 in respect of the said area or part thereof,
every such order in relation to the land lying
in such area or part as the case may be, shall
stand vacated.
(b)
Such
abatement
shall
be
without
prejudice
to the rights of the
persons
affected to agitate the right or interest in
dispute in the said suits or proceedings
before
the
appropriate
consolidation
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authorities under and in accordance with the
provisions of this Act and the rules made
thereunder.
Based upon the amended provisions of s. 5 of the Act, the
appellant has filed C.M P. 2631 of 1967, to pass an order
that Civil Appeal No. 691 of 1966 stands abated, inasmuch as
the rights of parties, with reference to their rights or
interest in the property in dispute, will have to be
agitated before the appropriate consolidation authorities,
in accordance with the provisions of the Act.
Learned counsel for the appellant, Mr. Agrawala, has taken
us through the various provisions of the Act and, according
to him, the scheme of the Act clearly shows that the
question, whether the respondent is a bhumidar and as to
whether his client, the appellant, has got tenancy rights in
the
properties,
are
all matters
now
falling
for
adjudication, within the exclusive jurisdiction of the
authorities constituted under the Act. Counsel also points
out that while originally, under s. 5, as it stood before
the amendment, the proceedings pending in Courts stood
’stayed, to await the adjudication by the authorities under
the Act, the position has been now altered, by virtue of the
amendment effected by the Amending Act XXI of 1966, the
effect of which is to declare the proceedings pending before
Courts, as abated. Counsel therefore urges that there is
nothing further to be done, by this Court, in the appeal,
excepting to pass an order that the appeal has abated.
Mr. S. V. Gupte, learned counsel, appearing for the respondent-plaintiff, has raised two contentions : (i) that suits,
for recovery of possession of lands, from trespassers do not
come within the purview of s. 5, as it now stands, after the
1966 amendment, and hence no question of abatement arises;
(ii) if the amended section applies to these proceedings,
the legislation being one by the State Legislature, is ultra
vires inasmuch as it takes away the jurisdiction of the
Supreme Court, to deal with the appeal.
After a consideration of the contentions of both the learned
counsel, we ire satisfied that the stand taken, on behalf of
the respondent, on both the points, cannot be accepted.
We have already extracted the provisions of S. 5 of the Act,
as it originally stood, and as it now stands, after the
amendment in 1966. No doubt, in cl. (b) (i) of s. 5, as it
originally stood, suits for possession of land were also
expressly dealt with. But, under the amended s. 5, there is
no direct reference to ’suits for possession of land’.
It
is, on this difference in phraseology of the new section,
that Mr. Gupte, learned counsel for the respondent, has
urged that his client’s suit, being one for recovery of
possession, instituted under s. 209, of the Abolition Act,
is not hit by the provisions of s. 5, as it now stands,.
Mr. Gupte points out that when, in the original s. 5, there
was a specific reference to suits for possession of land,
and which suits were to be stayed, there was a conscious
departure, by the Legislature, when S. 5 was amended, by
omitting suits for possession of land. If the intention of
the legislature was, Mr. Gupte points out, that the various
types of suits or proceedings which had to be stayed, under
the old s. 5, have to be declared as abated, under the new
s. 5, the Legislature could have referred to all the types
of actions which had been dealt with, under the original
section.
No doubt this line of reasoning, on the face of
it, may appear to be attractive; but we are not satisfied
that there is any merit in that contention.
’Suits for
possession’, as such, has not been expressly referred to, in
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the new section 5, but, in our opinion, the expression
’every suit and proceeding in respect of declaration of
rights or interest in any land are comprehensive enough to
take in suits for possession of land, because, before a
claim for possession is accepted, the Court will have,
necessarily, to adjudicate upon the right or interest of the
plaintiff, in respect of the disputed property, taking into
account the claim of the opposite party.., Therefore, in our
opinion, the suit, instituted by the respondent,. is covered
by the amended section 5 of the Act.
The various provisions, contained in the Act, also clearly
indicate that disputes, of the nature which exists between
the parties in the present litigation, are all now within
the jurisdiction of the authorities, constituted under the
Act, to adjudicate upon. The Act itself is one, to ’provide
for the consolidation of agricultural holdings in Uttar
Pradesh for the development of agriculture’.
Section 3
defines the various expressions. ’Chak’ means the parcel of
land allotted to a tenure-holder, on consolidation.
’Consolidation’ means re-arrangement of holdings in a suit,
amongst several tenure-holders, in such a way as to make
their respective holdings more compact.
’Tenure-holder’
means a bhumidhar or sardar of the land concerned, and
includes an asami. Section 4
gives power to the State Government to make a declaration
that a district or part thereof may be brought
under
consolidation operations. There is no controversy, that the
notification, issued by the State Government,
under this
section,
on October 22, 1965, takes in the area where the
disputed lands are situated. We have already referred to
the provisions, contained in the original as well as the
amended section 5.
Sections 8 and 8A, deal with the preparation of records,
and statements, by the Consolidation Officer, and s. 9
provides for the Assistant Consolidation Officer sending
notices to tenure-holders concerned, and other persons
interested, showing their interests in, and liabilities, in
relation to, the land. Sub-s. (2) of s. 9 provides for a
person, to whom a notice under sub-s. (1) has been sent, or
any other person interested, to file objections within the
time specified, therein, to the Assistant
Consolidation
Officer, disputing the correctness of the entries made in
the records. One of the entries, we have already pointed
out, relates to the ’rights in and liabilities in relation
to the land’. There are provisions relating to the hearing
of objections and the Assistant Consolidation Officer is
deemed to be a Court of competent jurisdiction. Provisions
have also been made for an aggrieved party to file an
appeal, to the Settlement Officer, and s. 11 provides that
the order of the Settlement Officer is final and that it
cannot be questioned in any Court of law.
Section 11A provides that no question in respect of a
claim to a land, shall be raised or heard at any subsequent
stage of the consolidation proceedings, if they have not
been raised earlier. Section 24- provides for the tenureholder being entitled to enter into possession of the plots
allotted to him.
Section 28 also gives power to the
Assistant Consolidation Officer, on the application of the
tenure-holder, to be put in possession of the land, allotted
to him.
We have already referred to the fact that the
expression
’tenure-holder’
under s. 3(11),
means
a
bhumidhar, or sirdar of the land concerned and includes also
an asami. Section 40 provides that proceedings before the
Consolidation authorities are to be deemed to be judicial
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proceedings.
Section 48 provides for the Director of
Consolidation, exercising his powers of revision, regarding
cases decided, or proceedings taken, by any subordinate
authority.
Section 49 excludes the jurisdiction of civil
courts to entertain any suit or proceeding, with respect to