Satish Chandra, C.J.
1. The question of law for the decision of which a Division Bench has referred this case to a Full Bench is whether proceedings under the U. P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Ceiling Act) are maintainable and can continue during the pendency of proceedings under the U. P. Consolidation of Holdings Act (Hereinafter referred to as the Consolidation Act).
2. The notification under Section 4(2) of the Consolidation Act in respect of the plots in dispute was published on 17th August, 1975. Subsequently on 24th April, 1976, the Prescribed Authority issued a notice under Section 10(2) of the Ceiling Act. The petitioner filed an objection, that in view of the pendency of proceedings under the Consolidation Act the proceedings under the Ceiling Act could not validly be initiated. The Prescribed Authority rejected this contention, and passed an order declaring 8.20 acres interms of irrigated area as the surplus land of the petitioner.
3. The petitioner filed an appeal, which was however, dismissed as barred by time.
4. The petitioner came up to this court under Article 226 of the Constitution. This Court allowed the petitioner to add a relief that the notice under Section 10(2) being without jurisdiction be quashed. Being of the opinion that the question raised in this case was of general importance, the matter was referred to a Full Bench:
5. Under the Consolidation Act title of interested persons is determined in respect of the area for which a notification has been issued under Section 4(2) of that Act. Thereafter the holding of each tenure-holder is consolidated into one or more compact areas called chaks. When these proceedings are over, a notification under Section 52 is issued closing the consolidation operations.
6. Section 5 (2) (a) of the Consolidation Act provides for abatement of proceedings pending on the date when the notification under Section 4(2) is published. Such proceedings are for correction of records and every suit and proceeding in respect of declaration of rights or interest. In addition, proceedings for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the Consolidation Act also abate.
7. Section 49 of the Consolidation Act, on the other hand, debarred civil or revenue courts from entertaining any suit or proceeding with respect to right in such land. It also provided that notwithstanding anything contained in any other law for the time being in force declaration and adjudication of rights in respect of such land shall be done in accordance with the provisions of the Consolidation Act. In other words, Section 5 covered pending proceedings, while Section 49 dealt with proceedings contemplated or launched after the commencement of consolidation operations.
8. A Full Bench of this Court (Agricultural and Industrial Syndicate v State of U. P. : AIR1971All134 took the view that the Consolidation and the Ceiling Acts operate in different fields. Authorities under the Ceiling Act declare surplus land of a tenure-holder for which no provision has been made in the Consolidation Act. Section 5 of the Consolidation Act ishence not attracted to proceedings under the Ceiling Act and they will not abate.
9. This case went up to the Supreme Court. The Supreme Court (Agricultural and Industrial Syndicate v. State of U. P : 1SCR253 overruled the view taken by the Full Bench. It held that proceedings under the Ceiling Act were proceedings for declaration or adjudication of rights in land, and so they would abate under Section 5 of the Consolidation Act. They can be resumed on the completion of consolidation operations by the issuance of a notification under Section 52 of the Consolidation Act.
9A. The State Legislature intervened, and by the U. P, Laws Amendment Act No. 34 of 1974, added the following explanation to Section 5(2) of the Consolidation Act:
'Explanation --, For the purposes of Sub-section (2) a proceeding under the U. P. 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.'
10. The effect of this Explanation was to remove the bar imposed by Section 5(2)(a). The proceedings under the Ceiling Act would not hence abate under Section 5(2)(a) of the Consolidation Act.
11. Mr. Yatindra Singh, learned counsel for the petitioner submitted before the Division Bench and reiterated the same submission before this Full Bench, that in point of fact Section 5(2)(a) was not on its own terms applicable to the present case. Section 5(2)(a) covers proceedings pending on the commencement of consolidation proceedings. In the present case no proceedings under the Ceiling Act were pending when the consolidation proceedings commenced on 17th August, 1975. The notice, under Section 10 (2) of the Ceiling Act, which initiated ceiling proceedings, was issued much later on 24th April, 1976. Section 5 (2) (a) not being applicable, the Explanation was of no avail to save the ceiling proceedings.
12. Learned counsel urged that Section 49 of the Consolidation Act was applicable. The Supreme Court decision holding that proceedings under the Ceiling Act were proceedings for declaration or adjudication of rights in land, though given with reference to Section 5(2) was equally applicable to Section 49. Section 49 expressly governs adjudication of rights of tenure-holders in respect ofland, hence in view of Section 49 the ceiling proceedings could not continue.
13. Section 49 of the Consolidation Act reads :--
'Notwithstanding anything contained in any other law for the time being in force, declaration and adjudication of rights of tenure-holders in respect of land lying in an area for which a notification has been issued under Sub-section (2) of Section 4 or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceedings with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act.
14. This section operates 'notwithstanding anything contained in any other law for the time being in force.' In the next place, it deals with two distinct matters: (a) declaration and adjudication of rights in respect of land; and (b) adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act.
15. Both these things are to be done in accordance with the provisions of the Act, and no civil or revenue court is to entertain any suit or proceeding with respect to either of the two matters.
16. In Chetanya Raj Singh v. Second Addl. Civil Judge (1977 All WC 289) a .single judge of this Court took the view that the Prescribed Authority constituted under the Ceiling Act is neither a civil court nor a revenue court within meaning of Section 49 of the Consolidation Act. The last part thereof was hence no* attracted to proceedings under the Ceiling Act.
17. Mr. Yatindra Singh in his arguments respected this decision, but submitted that the first part of Section 49 was nonetheless available and applicable. The first part equally well operated ''notwithstanding anything contained in any other law for the time being in force.' It provided that declaration and adjudication of rights in respect of land shall be done in accordance with the provisions of the Consolidation Act.
18. The Supreme Court has declared that proceedings under the Oiling Act are for declaration and adjudication of rights in respect of land and so Section 49 bars the ceiling proceedings. Learned counsel stressed that the Explanation appended to Section 5(2) of the Consolidation Act was expressly limited to that provision because it opened with the phrase 'For the purposes of Subsection (2)'.
19. I accept that the phrase 'declaration of rights or interest in any land'occurring in Section 5(2) has the samemeaning and significance as the phrase'declaration and adjudication of rights ofa tenure-holder in respect of land'occurring in Section 49. But I am unableto accept that the Explanation is confined to Section 5 and will not governSection 49 as well.
19A. I am reminded of what I observed in Smt Shakuntala Devi v. Deputy Director of Consolidation 1968 All WR (HC) 271 : 1969 All LJ 57 (Summary of Cases):
'...... both Sections 5 and 49 were intended to achieve the professed aspiration of the (U. P. Consolidation of Holdings) Act. namely to make the consolidation authorities the sole and exclusive tribunals for adjudication of inter alia, all disputes relating to rights and interests in the land covered by the notification under Section 4, so as to facilitate their consolidation in compact holdings. The two provisions are complementary. They supplement each other. The kinds of the disputes in respect of which Section 5 froze pending litigation are the same for which Section 49 forbade the institution of fresh litigation. Both relate to the rights or interest in land covered by the notification under Section 4. ...... Sections 5 and 49 are pari materia. They have been enacted to subserve the same scheme. They should receive the same interpretation.'
20. Section 5(2) and Section 49 are the two faces of the same coin. They are part of the same scheme of the Consolidation Act. The Supreme Court in Baljit Singh v. Risal Singh (1962 All LJ 604) interpreted Section 49 to be referable to Section 5. Raghubar Dayal J. speaking for Court, after quoting Section 49, observed -
'This now provides that the adjudication of rights of tenure-holders in respect of land lying in an area under consolidation operations shall be done in accordance with the provisions of the Act. This leads practically to the same result to which Clause (2) of Sub-section (b) of Section 5 leads. The provisions of this section are not expresslylimited to the period between the declaration under Section 4 and the notification under Section 52, but can be soconstrued as they relate back to Section 5(b)(2) of the; Act. Such declarationand adjudication of rights have to be done in accordance with the provisions of the Act.'
21. At that time Clause (b)(1) provided for stay of proceedings pending before any authority or Court and by Clause (2) it was provided that those proceedings shall be decided in accordance with the findings of consolidation authorities.
22. This section was recast by the Amending Act of 1963, and instead of staying the proceedings it provided for their abatement on the publication of the notification under Sub-section (2) of Section 4, This change, however, does not materially affect the position that sections 5 and 49 are integral parts of the same scheme, namely, that declaration and adjudication of rights has to be done under the Consolidation Act and nowhere else. Section 5 covers pending while Section 49 forbids future proceedings to that end.
23. In this view when the legislature by adding the Explanation created a fiction that proceedings under the Ceiling Act shall not be deemed to be proceedings in respect of declaration or adjudication of rights or interest in any land it had obviously intended to exclude the ceiling proceedings from the purview of the Consolidation Act. The Explanation was made applicable for purposes of Sub-section (2) of Section 5. Since Section 49 is an extension of Sub-section (2) of Section 5 in relation to future litigation of the same kind, the fiction created by the Explanation would equally apply to the bar created by Section 49. A proceeding under the Ceiling Act shall not be deemed to be a proceeding which is barred under Section 49 as well.
24. The Supreme Court C. I. T. v. S. Teja Singh : 35ITR408(SC) has had occasion to lay down the effect of a legal fiction. It has approved what Lord Asquith said in East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952 AC 109 at p. 132):
'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it....The statute says that you must imaginea certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'
25. The legal fiction is that ceiling proceedings are not proceedings for declaration of rights or interest in land. This imaginary state of affairs must equally apply to all situations in which it would on terms be applicable. Though the Explanation says 'for the purposes of Sub-section (2)' it would apply to Section 49 also because Section 49 is integrally connected with and referable to Sub-section (2) of Section 5.
26. In this view the proceedings under the Ceiling Act would be outside the purview of Section 49 as they are of Section 5 (2).
27. Learned counsel then submitted that proceedings under the Ceiling Act having been launched later, they were liable to be stayed under Section 10 of the Code of Civil Procedure.
28. In Kshetrapal Singh v. State of U. P., 1975 All WC 618, a Bench of this Court has repelled a similar submission. It was held that Section 10, C. P. C. is not applicable to proceedings under the Ceiling Act, because by virtue of Section 37 only the procedure prescribed by the Code of Civil Procedure for trial of suits has been made applicable. Section 10 relates to jurisdiction of Courts. The same will not apply. In my opinion this decision lays down the correct law.
29. This apart Section 10, C, P. C. will not apply on its terms. It is well settled. that Section 10 C. P. C. comes in operation when the subject matter of the two suits or proceedings is identical. All the issues arising in the two matters must be the same. In ceiling proceedings the main issue is the determination of the ceiling area and declaration of the rest of the land belonging to the tenure-holder as surplus land. In proceedings under the Consolidation Act no such question arises.
30. Learned counsel stressed that in any event the ceiling proceedings ought to be stayed on the principle of comity of Courts. When the question of title is already engaging the attention of the(Gargi Din v. Debi Charan (ILR 51 All 1017) : (1930 All LJ 284); Hathi Ram v, Hazi Mohammad : AIR1954All141 : (1953 All LJ 578); Ram Narain v. Ram Swarup : AIR1962All108 ; L. Nem Kumar Agarwal v. Nem Kumar : AIR1958All207 consolidation authorities, adjudication of same rights under the Ceiling Act is likely to lead to conflicting orders. To avoid it the later proceedings under the Ceiling Act ought to be stayed. This argument is fallacious.
31. The Consolidation Act seeks to adjudicate and declare rights of tenure-holders as they were on the date of the publication of the notification under Section 4 (2) subject to liability of some portion of the land held to belong to a tenure-holder being taken for public purposes on payment of compensation. After declaration of title, land held by a tenure holder is subjected to allotment of chaks. The adjudication of rights is confined to the area under consolidation operations only. A tenure-holder having land at several places may not be subjected to consolidation operations in respect of land lying outside the consolidation area.
32. Proceedings under the Ceiling Act are for an entirely different purpose. Section 5 of the Ceiling Act declares that no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh any land in excess of the ceiling area applicable to him. This Act, therefore covers lands held by a tenure-holder throughout the State.
33. The second Explanation to Section 5 (1) presumes that the tenure-holder in possession on or before Jan. 24, 1971, continues to hold the land even though the name of any other person is entered in the revenue papers after that date, whether on the basis of a deed of transfer or licence or on the basis of a decree. This presumption obtains unless the contrary is proved to the satisfaction of the Prescribed Authority.
34. The existence of a decree of a Court, or a deed of transfer or licence even recognised by Court or even authorities under the Consolidation Act, will be of no avail. The person whose name finds place in the annual register after Jan. 24, 1971, will have to affirmatively prove to the satisfaction of the Prescribed Authority that he really holds the land. In this situation the orders passed by the consolidation authorities will be futile qua ceiling proceedings. There is no point in staying ceiling proceedings when in such a situation the result of declaration of rights in consolidation proceedings will be futile.
35. Sub-section (6) of Section 5 provides that any transfer of land made after 24th January, 1971, shall be ignored and nottaken into account in determining the ceiling area of a tenure-holder. The proviso to it gives certain exception in favour of certain categories of transfers and transferees. Clause (a) of the first Explanation to Sub-section (6) defines transfer to include a declaration of a person as a co-tenure-holder made after 24th January, 1971, in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after 24th Jan., 1971. Under Clause (b) transfer includes any admission, acknowledgment, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner. A declaration of a person as a co-tenure-holder made in consolidation proceedings after 24th Jan., 1971, is thus valueless, it was liable to be ignored, be it based on a genuine dispute or an admission etc. made in a deed or instrument, in such case also staying of ceiling proceedings would be of no avail. Whatever adjudication of rights as a co-tenure-holder or in relation to any other form of transfer is made by consolidation authorities it would be a waste paper.
36. Sub-section (7) of Section 5 directs that partition of land made after 24th Jan., 1971, shall be ignored in determining the ceiling area. The proviso to Sub-section (7) makes an exception in favour of a partition made in a suit or proceeding pending on 24th Jan., 1971. This is subject to another proviso :
'Provided further that notwithstanding anything contained in the preceding proviso the Prescribed Authority, if it is of opinion that by collusion between the tenure-holders and any other party to the partition, such other party has been given a share which he was not entitled to, or a larger share than he was entitled to may ignore such partition.
Explanation 1: If a suit is instituted after the said date for declaration that a partition of land has taken place on or before the said date, then such declaration shall be ignored and not be taken into account and it shall be deemed that no partition has taken place on or before the said date.'
37. It is evident that even a partition made in consolidation proceedings pending on 24th January, 1971, is also liabla to be ignored.
38. Sub-section (8) of Section 5 prohibits transfer of any land held by the tenure-holder during the continuance of proceedings for determination of surplus land, and it makes every such transfer void. Under the Consolidation Act transfers are permitted with the permission of the Settlement Officer : vide Clause (c) of Section 5 (1).
39. These are overriding provisions which nullify declaration or adjudication of the rights in relation to the matters mentioned above, made in any other proceedings including consolidation proceedings. There seems little point in staying ceiling proceedings because of the pendency of consolidation proceedings. It will only mean postponing the evil day.
40. This is not all. Section 38-B of the Ceiling Act is entitled 'Bar against res judicata'. It provides that no finding or decision given before the commencement of this section in any proceeding or on any issue (including any order, decree or judgment) by any court, tribunal or authority in respect of any matter governed by this Act, shall bar the retrial of such proceeding or issue under this Act, in accordance with the provisions of this Act, as amended from time to time. A finding or decision given in consolidation proceedings prior to 10th October, 1975, when Section 38-B came into force, is of no worth in respect of matters governed by the Ceiling Act. The issues are liable to be retried under the Ceiling Act.
The scheme of the Ceiling Act is that every tenure-holder having any interest in land in the entire State of U. P. must get his ceiling area fixed. Relying on a Full Bench decision of this court in Upper Ganges Sugar Mills Ltd, v. Civil Judge, Bijnor : AIR1970All130 , a Bench of this Court in Dilbagh Singh v. State of U. P. (Writ Petition No. 255 of 1976 decided on 16th May, 1978) : (1978 All LJ 717) held that in spite of the repeal of Sub-sections (3) to (7) of Section 14, a person claiming to be a tenure-holder, though he is not recorded in the revenue papers as such, is entitled to file an objection under Section 11 (2) of the Act and get his right adjudicated. Till that is done, he cannot be evicted even though the land claimed by him has been declared as surplus land of some other tenure-holder.
41. The position, therefore, is that every person who claims rights in land as a tenure-holder must get his rights settled under the Ceiling Act. He is not to wait for adjudication of his rights either in the civil or revenue Courts or In consolidation proceedings.
42. The principle of comity of Courts applies where the1 decision of one is to operate as res judicata in the other Court. As shown above, in matters governed by the Ceiling Act decisions by other Courts or authorities have no binding efficacy. On the principle of comity of Courts, the proceedings under the Ceiling Act are not liable to be stayed.
43. Learned counsel for the petitioner highlighted many anomalies that are likely to arise if ceiling proceedings continue along with or precede the consolidation operations. It was submitted that a tenure-holder whose ceiling area has been determined under the Ceiling Aot is liable to lose some further land if in subsequent consolidation operations it is taken away for public purposes. According to learned counsel the compensation payable under the Consolidation Act which provided for acquisition of land for public purpose will violate the second proviso to Article 31A(1) of the Constitution. If they so violate the second proviso, then the action of the consolidation authorities in not paying market value as compensation would be rendered void. The tenure-holder would not suffer.
44. Another anomaly which learned counsel listed was of a person for whom the ceiling limit is 7.3 hectares in terms of irrigated land. He is given notice by the Ceiling authorities in which he is shown to own 14.6 hectares in terms of irrigated land. He files an objection and says that 7.3 hectares alone belonged to him. The remaining area is owned by one X. The ceiling authorities find that the entire 14.6 hectares belongs to the objector and not to X.
45. If in the meantime, or subsequently in consolidation proceedings it is held (may be, partly on admissions of C made in ceiling proceedings) that 7.3 hectares belonged to X and X Is given a chak of that area, the objector will hence lose the entire land.
46. The illustration is fallacious. In the first place, in such a situation it will be incumbent on the objector to implead X as a party to his objection, so that the rights may be determined in the presence of X. In the next place, as already seen, decisions of consolidation authorities in situations mentioned in various clauses of Section 5 are to be ignored. A decision given by a ceiling authority would be binding on the parties even in consolidation proceedings. Consolidation proceedings respect final declaration of rights done by other Courts or authorities.
47. Another case cited is : During consolidation proceedings a number of persons file objections and claim sirdari rights on substantial portion of a tenure-holder's land. Their claim is based on maturing title by adverse possession for the requisite period. The consolidation authorities uphold the claim and declare the objectors sirdars and allot land to them and put them in possession. Subsequently, proceedings commence under the Ceiling Act. Under it surplus area will be declared treating the entire land as belonging to the tenure-holder, although in virtue of consolidation proceedigns he has lost a major portion and actually has an area within ceiling limits. He may in that event be left with no land whatever, because the authorities under the Ceiling Act are not bound by the findings given by the consolidation authorities.
48. This illustration does not represent the correct position. In the first place, Section 38-B dissolves the binding effect of findings given before 10th Oct.. 1975. Such findings or decisions can be retried under the Ceiling Act. If in the given case the consolidation authorities have given their decision before- 10th Oct., 1975, those issues themselves are liable to be retried and for all we know the original tenure-holder may succeed in defeating the claims of those who allege to be in adverse possession. If the decision is given after 10th October, 1975, it will have a binding efficacy in ceiling proceedings, if it is not covered by any of the clauses of Section 5. A claim of maturing title by adverse possession is in one of the categories of decisions which can, in certain conditions, be ignored by the ceiling authorities. If a decision is given after 10th Oct., 1975, Explanation 2 of Section 5 (1) of the Ceiling Act amongst other provisions of Section 5 becomes applicable in a case where the original tenure-holder held land on or before 24th Jan., 1971, and thereafter the name of any other person is entered in the revenue papers as a result of orders passed by consolidation authorities. In such a case also the finding is not binding and the issue is liable to be retried. The persons who allege to be in adverse possession will have to satisfy the prescribed authority that they did not hold the land ostensibly in the name of the original tenure-holder, or that he has lost rights by their adverse possession for the requisite period. In such a case the original tenure-holder will implead thosewho claim rights by virtue of adverse possession, to his objection in the ceiling proceedings and the prescribed authority will have to decide the point and his decision alone will be the final adjudication of rights of all of them inter se.
49. It is true that this will lead to duplication of proceedings; it will jeopardise decisions given by consolidation authorities. But there is no help. The legislative mandate requires it. But it is clear that the original tenure-holder will not automatically lose any part of the land without fresh adjudication.
50. Another example taken was: proceedings under the Ceiling Act commence. Some persons file objections claiming title by adverse possession for the requisite period. Such objections are dismissed. The recorded tenure-holder is held entitled to the entire land and on that basis his surplus area is determined.
51. Subsequently in consolidation proceedings the same persons file objections again claiming sirdari rights in virtue of adverse possession. Since decisions of prescribed authority under the Ceiling Act are not binding, the consolidation authorities may well give a different finding. They may uphold the claim of the objectors on the basis of their adverse possession. In that event the tenure-holder may lose the land even within his-ceiling area.
52. This illustration is based on a misapprehension. Under the Ceiling Act persons claiming acquisition of title by adverse possession are also entitled to file objections. The adjudication between them and the original tenure-holder in ceiling proceedings having become final will operate as res judicata under the general doctrine in relation to consolidation authorities. They will be bound to respect the decision of the ceiling authorities.
53. It was also stressed that Section 29 of the Ceiling Act provides for redetermination of ceiling area of a tenure-holder where he has come to hold under a decree or order by any court or as a result of succession or transfer or by prescription in consequence of adverse possession land which together with the land already held by him exceeds the ceiling area applicable to him.
54. But the Ceiling Act makes no provision either in Section 29 or anywhere else where a tenure-holder may unfortunately happen to lose some land after his ceiling area has been determined under the Ceiling Act.
55. One such instance can be conceived; after the proceedings under .the Ceiling Act are over and the ceiling area and surplus land of a tenure holder has been determined and declared, consolidation proceedings commence. A person files an objection in consolidation proceedings that he was unaware of the ceiling proceedings, that he really held the land on or before January 24, 1971, and was in its possession. The name of the recorded tenure-holder was wrongly recorded. If such an objection succeeds the recorded tenure-holder would lose such land even though it was within his ceiling area. In such a case the decision of the ceiling authorities will not be binding on the objector because he was not a party to it The consolidation authorities cannot force such an objector to go and get his rights settled in ceiling proceedings. They would be obliged to deal with the objections on its merits. Even though the objector could have filed an objection in ceiling proceedings along with an application under Section 5 of the Limitation Act to condone the delay on the ground that he was not aware; but the recorded tenure-holder cannot force such an objector to have his rights determined in the ceiling proceedings, so that after adjudication of rights of such a claimant his ceiling area and the surplus land may be re-determined.
56. This undoubtedly appears to be an anomalous position, which, in our opinion, requires legislative intervention. We would commend such a situation for consideration of the Government so that such anomalous situations are not permitted to arise.
57. Coming back to the instant case, the only question of law arising in the writ petition being whether ceiling proceedings are liable to be stayed during the pendency of consolidation proceedings, the same is answered in the negative. The writ petition is accordingly dismissed with costs.
Yashoda Nandan and K.N. Singh, JJ.
We concur with Hon'blethe Chief Justice and have nothing to add.