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Bijai NaraIn Singh and ors. Vs. State of Uttar Pradesh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 2940 of 1968
Judge
Reported inAIR1970All241
ActsCode of Civil Procedure (CPC) , 1908 - Sections 5(2), 9, 139 and 141 - Order 19, Rules 1 and 2; Uttar Pradesh Consolidation of Holdings Act, 1954 - Sections 8, 8A, 9A, 9A(1), 9A(2), 9A(3), 9B, 12(2), 19A, 21, 38, 41 and 42; Uttar Pradesh Consolidation of Holdings Rules - Rules 12(2), 25A, 26 and 34; Tenancy Law; Constitution of India - Article 226
AppellantBijai NaraIn Singh and ors.
RespondentState of Uttar Pradesh
Appellant AdvocateSripat Narain Singh, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
civil - verification of affidavits by oath commissioner - order 19 rules 1 and 2 and sections 5, 9, 139 and 141 of code of civil procedure, 1908 and sections 8, 9, 19, 21, 38 and 41 of u.p. consolidation of holdings act, 1954 - consolidation officer discharges both executive and legislative functions - consolidation officer cannot be termed as 'court' when discharging executive functions - oath commissioner appointed by district judge to verify affidavits filed before consolidation officer - revenue courts deal mainly with matters relating to rent, revenue or profits, matters dealt by under act covers consolidations of agricultural holdings - consolidation court cannot be called revenue courts. - - 17. the learned counsel for the petitioners contended that the law laid down in ram.....b.b. misra, j. 1. this reference toa full bench arises out of a petition under article 226 of the constitution seeking a writ of mandamus commanding the u. p. government to withdraw its notification dated june 29, 1968, directing that oath commissioners appointed by district judge under section 139 of the code of civil procedure were not authorised to verify affidavits relating to the proceedingsbefore the various authorities constituted under the u. p. consolidation of holdings act 5 of 1954, (hereinafter referred to as the act). 2. the six petitioners, who are lawyers of azamgarh, were appointed oath commissioners by the district judge of that place by his order dated 19-7-1966 passed under the provisions of section 139 of the code of civil procedure. originally, affidavits to be filed,.....
Judgment:

B.B. Misra, J.

1. This reference toa Full Bench arises out of a petition under Article 226 of the Constitution seeking a writ of Mandamus commanding the U. P. Government to withdraw its Notification dated June 29, 1968, directing that Oath Commissioners appointed by District Judge under Section 139 of the Code of Civil Procedure were not authorised to verify affidavits relating to the proceedingsbefore the various authorities constituted under the U. P. Consolidation of Holdings Act 5 of 1954, (hereinafter referred to as the Act).

2. The six petitioners, who are lawyers of Azamgarh, were appointed Oath Commissioners by the District Judge of that place by his order dated 19-7-1966 passed under the provisions of Section 139 of the Code of Civil Procedure. Originally, affidavits to be filed, inter alia, before the various authorities constituted under the Act, used to be verified by the petitioners, the propriety of which was also recognised by the U. P. Government under its G. O. No. 3147/VII-AI-45/65 dated March 11, 1968. Subsequently, by G. O. No. 1855/VII-AI-44/65 dated June 29, 1968, the U. P. Government partially modified the aforesaid G. O. dated March 11, 1968, and withdrew its recognition hi respect of affidavits to be filed before the Consolidation Authorities saying that, in view of judicial pronouncement, they were not Courts of Civil judicature, and, as such, Oath Commissioners were not authorised to verify affidavits relating to proceedings before them. The petitioners challenge the legality of that order of the Government on the ground that the various authorities constituted under the Act are Courts of Civil Jurisdiction.

3. Thus the point for determination is as to whether Oath Commissioners appointed by District Judges are competent to verify the affidavits to be filed before the authorities constituted under the Act.

4. The relevant provisions of the Code of Civil Procedure under which Oath Commissioners are appointed and verify affidavits are to be found in Sections 139 and 141, and Order 19.

5. Affidavits are tendered under Order 19, Rules 1 and 2 of the Code of Civil Procedure which are to the following effect:--

'1. Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.

2. (1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.

(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.'

6. Section 139 of the Code of Civil Procedure reads thus:--

'In the case of any affidavit under this Code--

(a) any Court or Magistrate, or

(b) any officer or other person whom a High Court may appoint in this behalf, or

(c) any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf,may administer the oath to the deponent.'

7. It is not disputed that under Subsection (c) of the above section, the U. P, Government has empowered District Judges to appoint Oath Commissioners.

8. Section 141 of the Code of Civil Procedure runs as follows:--

'The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.'

9. On a perusal of the above provisions, it would appear that two conditions must be fulfilled in order that Oath Commissioners appointed by District Judges may be competent to verify the affidavits coming to them. One is that they are to be filed before the Courts whose procedure is governed by the Code of Civil Procedure. And, the other is that those Courts must be Courts of Civil Jurisdiction.

10. It has, therefore, to be examinedif the various authorities constituted under the Act are governed by the Code of Civil Procedure in the matter of procedure, and whether they are Courts of Civil Jurisdiction.

11. These matters were gone into threadbare by a Division Bench of this Court in Ram Bharosey Lal v. The Deputy Director of Consolidation, U. P., 1964 RD 411 (All) to which one of us was a party. After reviewing the case law on the subject and also examining the various provisions of the Act it came to the conclusion that the various authorities constituted under it were not Courts. Subsequently, a Full Bench of this Court approved that decision in Sita v. State of U. P., : AIR1969All342 .

12. On the legal aspect it relied on an. English Case. Shell Co. of Australia v. Federal Commissioner of Taxation, 1931 AC 275 at pp. 296-297, wherein Lord Sankey, L. C., made the following observations:--

'The authorities are clear to show that there are tribunals, with many of the trappings of a Court, which, nevertheless, are not Courts in the strict sense of exercising judicial power.

In that connection it may be useful to enumerate some negative propositions on the subject: (1) A tribunal is not necessarily a Court in the strict sense becauseit gives a final decision, (2) Nor because it hears witnesses on oath, (3) Nor because two or more contending parties appear before it between whom it has to decide, (4) Nor because it gives decisions which affect the rights of subjects, (5) Nor because there is an appeal to a Court, and (6) Nor because it is a body to which a matter is referred by another body.'

13. The negative propositions set out above indicate that the features to which they refer may constitute the trappings of a Court. But the presence of the said trappings does not necessarily make a quasi-judicial body a Court.

14. The above principles were followed in several cases by the Supreme Court from time to time. Those cases are Bharat Bank v. Employees of Bharat Bank : (1950)NULLLLJ921SC ; Braj Nandan Sinha v. Jyoti Narain : 1956CriLJ156 ; Virindar Kumar Satyawadi v. The State of Punjab : 1956CriLJ326 ; Harinagar Sugar Mills Ltd. v. Shyam Sunder : [1962]2SCR339 ; Jagannath Prasad v. State of Uttar Pradesh : [1963]2SCR850 ; Jaswant Sugar Mills Ltd. Meerut v. Lakshmi Chand, : (1963)ILLJ524SC and Engineering Mazdoor Sabha v. Hind Cycles Ltd. : (1962)IILLJ760SC .

15. The Division Bench of this Court in Ram Bharosey Lal's case, 1964 RD 411 (All) has given extracts from each of them. It is not necessary to traverse the whole ground again. Suffice it to say that broadly speaking what the above cases have laid down is that what distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide in a judicial manner the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it.

16. The Division Bench of this Court then examined the various provisions of the Act in the light of the law laid down in the aforesaid cases and came to the conclusion that the authorities constituted under that Act could not be called Courts.

17. The learned counsel for the petitioners contended that the law laid down in Ram Bharosey Lal's case, 1964 RD 411 (All) is no longer good law in view of a subsequent decision of the Supreme Court in Jugal Kishore Sinha v. Sitamarhi Central Co-operative Bank Ltd. : 1967CriLJ1380a , and also because of the fact that the various provisions in the original Act on the basis of which that decision was given, have undergone a material change by subsequent amendments. It was urged that the points which led to the earlier decision were no longer there with the result that under the existing provisions, the Consolidation Authorities would answer the tests laid down in the cases mentionedabove and would come in the category of Courts.

18. The first point, therefore, to be seen is as to how far the Supreme Court in Thakur Jugal Kishore Sinha's case : 1967CriLJ1380a has touched the points decided by the Division Bench of this Court in Ram Bharosey Lal's case, 1964 RD 411 (All). As said above, the decision in Ram Bharosey Lal's case, 1964 RD 411 (All) is divisible into two parts, the first dealing with the legal question as to what category of tribunals fall within the category of 'Courts', and the second examining the various provisions of the Act in order to determine if they possessed all the attributes of Courts as laid down by the Supreme Court from time to time. In Jugal Kishore Sinha's case, : 1967CriLJ1380a the Supreme Court has not said anything contrary to its earlier decisions laying down the criteria for deciding as to whether a tribunal is a Court or not. In fact, passages have been quoted from the two cases decided in 1956 elaborating the principle enunciated by Lord Sankey and setting forth the ratio decidendi in distinguishing Courts from quasi-judicial bodies. It would thus appear that there is nothing in Jugal Kishore Sinha's case, : 1967CriLJ1380a touching the legal stand taken by the Division Bench of this Court.

Coming now to the other point decided by the Division Bench, the decision of the Supreme Court in Jugal Kishore Sinha's case, : 1967CriLJ1380a can have no application. In the first place, the case before the Supreme Court was one under the Contempt of Courts Act and it had to see if the Assistant Registrar discharging the functions of the Registrar under Section 48 read with Section 6 (2) of Bihar and Orissa Co-operative Societies Act (6 of 1935) was a Court subordinate to the High Court. In the present case it has to be seen if the various Consolidation Authorities under the Act are Courts of Civil jurisdiction. Different considerations prevail in determining as to whether a Court is subordinate to the High Court or it is a Court of civil jurisdiction. In order to see if a particular tribunal comes under the Contempt of Courts Act, the primary consideration to see is if it is subordinate to the High Court whereas in a case like the one in hand, the point to be determined is as to whether it is a Court of civil jurisdiction. Secondly, the provisions of the Bihar and Orissa Co-operative Societies Act are different from the provisions of the Act. On an examination of the provisions of that Act. the Supreme Court found that the Registrar had not merely the trappings of a Court but in many respects had been given the same powers as were exercised by ordinary Civil Courts of the land by the Code of Civil Procedure. It has to be remembered that in that case theSupreme Court came to that conclusion because of the particular provisions of the Bihar and Orissa Co-operative Societies Act. Consequently, it cannot be held that the decision of this Court in Ram Bharosey Lal's case, 1964 RD 411 (All) has been affected in any manner by the decision of the Supreme Court in Jugal Kishore Sinha's case, : 1967CriLJ1380a .

19. It has next to be seen if the Act has undergone any material change by subsequent amendment so as to call for a departure from the rule laid down in Ram Bharosey Lal's case, 1964 RD 411 (All). The original Act was passed in 1953 and came to be placed on the Statute Book as U. P. Act No. 5 of 1954. It was amended from time to time, the last amendment having been made by U. P. Act 8 of 1963. Rules under Section 54 (3) of the Act were first published in 1954 after the coming into force of the original Act. They were also amended from time to time after the various amendments of the Act, the last amendment in them having been made in 1963.

20. It is not necessary to go into all the amendments in the Act and the Rules which have been made from time to time. Only those amendments have to be looked into which are in respect of the powers exercisable by the Consolidation Authorities in discharging their judicial functions. For that purpose, only the amendments which were made by the Amendment Act 38 of 1958 and those made subsequently by Act 8 of 1963 along with the corresponding Rules made thereunder will have to be looked into.

21. The first thing would be to see asto what authorities have been constituted under the Act. The hierarchy of the various authorities constituted under that Act beginning from the lowest, as given in Section 42, are in the following order: Assistant Consolidation Officer; Consolidation Officer; Settlement Officer (Consolidation): Deputy Director (Consolidation); and Director of Consolidation. The Assistant Consolidation Officer and Consolidation Officer do the spade work and are the authorities of first instance before whom objections and disputes come up for decision. The powers of Assistant Consolidation Officer are restricted to non-contentious matters, and also where he can bring about conciliation between the parties. So far as disputed matters are concerned, he has to refer them to the Consolidation Officer for decision. Appeals against the orders of the Consolidation Officer are to be heard by the Settlement Officer (Consolidation). Revisions against the orders of the Settlement Officer (Consolidation) are to be disposed of by the Director of Consolidation, in which category the Assistant Director, the Deputy Director, and the Joint Director are alsoincluded. As the Assistant Consolidation Officer and the Consolidation Officer arethe initial authorities before whom objections and disputes come up, affidavits are to be filed mostly before them. It is only very sparingly that the necessity of filing affidavits before the authorities higher than them arises. Therefore, what has to be seen primarily is as to whether the Assistant Consolidation Officer and the Consolidation Officer can be held to be 'Courts'. It is not disputed that under the Scheme of the Act both these authorities have to perform both judicial and executive functions. In discharging their functions they have to be guided by the policy underlying the Act which is to be found in its Preamble, which says that it had been enacted to provide for the consolidation of agricultural holdings for the development of agriculture. It is thus noticeable that the Consolidation Authorities have to take into consideration the policy of the legislature also.

At the time of arguments it was conceded by the learned counsel for the petitioners that the Assistant Consolidation Officer was not a 'Court'. It was further conceded that the Consolidation Officer acts in dual capacities, that is to say, he exercises both judicial and executive powers. Obviously, therefore, when he is discharging his executive functions he cannot be called a 'Court'. Therefore, the only point to be determined is as to whether he can be held to be a 'Court' when discharging his judicial functions. Before embarking on the determination of that question, it may be pointed out that it would neither be feasible nor practicable to permit the Oath Commissioners appointed by District Judges to verify the affidavits to be filed before the Consolidation Officer because there was no one to decide as to whether the affidavit was required to be filed before the Consolidation Officer when he was acting in his judicial capacity or as an Executive Officer, and it would not be proper to leave the decision of that matter to the Oath Commissioner himself. The writ petition is, therefore, liable to be dismissed on this ground alone because even if it were granted the order cannot be given effect to as the Consolidation Officer exercised both executive and judicial functions and there was no agency to decide as to which matters were judicial, with the result that it could not be said as to what affidavits could be verified by the petitioners.

22. But, as the question about the various authorities constituted under the Act being Courts was argued at some length, it would be well to go into it.23. As said above, the Consolidation Officer exercised some judicial functions also. So, it will have to be examined if he had all the attributes of a Court inthat limited sphere so as to hold him a 'Court'.

24. On an examination of the Act andthe Rules after amendment in 1963 and their comparison with the earlier provisions it would appear that mostly there has been re-shuffling, breaking up. and renumbering of the previous provisions, with the result that some old provisions have come to be deleted and a few provisions have been newly brought in. As we are mainly concerned with the judicial powers of the Consolidation Officer, we will have to confine the discussions with that end in view.

25. The. first appearance of the Consolidation Officer for the exercise of his iudicial powers comes when he acts under Sections 9-A and 9-B of the Act after the village records have been revised and the valuation and shares in holdings have been determined under Section 8, and the Statement of Principles has been prepared under Section 8-A. Then, he again comes into the picture when he acts under Section 21 of the Act after the provisional Consolidation Scheme has been drawn up under Section 19-A.

26. The matters which come up before the Consolidation Officer under Sections 9-A and 9-B are those dealt with under Sections 8 and 8-A, and those which come up under Section 21 are those dealt with under Section 19-A. Initially the matters under Sections 8, 8-A and 19-A are dealt with by the Assistant Consolidation Officer who disposes of non-contentious ones or those in which he can bring about conciliation, and forwards the disputed ones to the Consolidation Officer for his decision under Section 9-A, 9-B or 21, as the case may be. What is noticeable is that it is mandatory for the Assistant Consolidation Officer to consult the Consolidation Committee while acting under Sections 8, 8-A and 19-A.

27. Now, with that background it may be seen as to what comes up before the Consolidation Officer for disposal and how he is to deal with it under Sections 9-A, 9-B and 21, It would be well to quote those provisions in extenso for a proper appreciation of the points raised at the Bar.

'9-A. Disposal of cases relating to claims to land and partition of joint holdings--

(1) The Assistant Consolidation Officer shall--

(i) where objections in respect of claims to land or partition of joint holdings are filed, after hearing the parties concerned; and

(ii) where no objections are filed, after making such enquiry as he may deem necessary.

Settle the disputes, correct the mistakes and effect partition as far as may be by conciliation between the parties appearingbefore him and pass orders on the basis of such conciliation.

(2) All cases which are not disposed ofby the Assistant Consolidation Officer under Sub-section (1), all cases relating to valuation of plots and all cases relating to valuation of trees, wells or other improvements for calculating compensation therefor, and its apportionment amongst co-owners, if there be more owners than one, shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer, who shall dispose of the same in the manner prescribed.

(3) The Assistant Consolidation Officer, while acting under Sub-section (1) and the Consolidation Officer, while acting under Sub-section (2), shall be deemed to be a Court of competent jurisdiction, anything to the contrary contained in any other law for the time being in force notwithstanding.

9-B. Disposal of objections on the Statement of principles--

(1) Where objections have been filed against the statement of Principles under Section 9, the Assistant Consolidation Officer shall, after affording opportunity of being heard to the parties concerned after taking into consideration the views of the Consolidation Committee, submit his report to the Consolidation Officer, who shall dispose of the objections in the manner prescribed.

(2) Where no objections have been filedagainst the Statement of Principles within the time provided therefor under Section 9, the Consolidation Officer shall with a view to examining its correctness, make local inspection of the unit, after giving due notice to the Consolidation Committee, and may thereafter make such modifications or alterations in the Statement of Principles as he may consider necessary.

(3) Any person aggrieved by an order of the Consolidation Officer under Subsection (1), or Sub-section (2), may within 21 days of the date of the order, file an appeal before the Settlement Officer, Consolidation, whose decision, except as otherwise provided by or under this Act, shall be final.

(4) The Consolidation Officer and the Settlement Officer, Consolidation, shall, before deciding an objection or an appeal, make local inspection of the unit after giving due notice to the parties concerned and the Consolidation Committee.

21. Disposal of objection to the Provisional Consolidation Scheme--

(1) All objections received by the Assistant Consolidation Officer, shall, as soon as may be after the expiry of the period of limitation prescribed therefor, be submitted by him to the Consolidation Officer, who shall dispose of the same as also the objections received by him, in the manner hereinafter provided, after noticeto the parties concerned and the Consolidation Committee,

(2) Any person aggrieved by the order of the Consolidation Officer under subsection (1) may, within 15 days of the date of the order, file an appeal before the Settlement Officer, Consolidation, whose decision shall, except as otherwise provided by or under this Act, be final.

(3) The Consolidation Officer shall, before deciding the objections and the Settlement Officer, Consolidation, may, before deciding an appeal, make local inspection of the plots in dispute after notice to the parties concerned and the Consolidation Committee.

(4) If, during the course of the disposal of an objection or the hearing of an appeal, the Consolidation Officer or the Settlement Officer, Consolidation, as the case may be, is of the opinion that material injustice is likely to be caused to a number of tenure-holders in giving effect to the provisional Consolidation Scheme, as prepared by the Assistant Consolidation Officer, or as subsequently modified by the Consolidation Officer, as the case may be, and that fair and proper allotment of land to the tenure-holders of the units is not possible without revising the provisional Consolidation Scheme, or getting a fresh one prepared, it shall be lawful, for reasons to be recorded in writing, for --

(i) the Consolidation Officer to revise the provisional Consolidation Scheme, after giving opportunity of being heard to the tenure-holders concerned, or to remand the same to the Assistant Consolidation Officer, with such directions as the Consolidation Officer may consider necessary; and

(ii) the Settlement Officer, Consolidation, to revise the provisional Consolidation Scheme, after giving opportunity of being heard to the tenure-holders concerned or to remand the same to the Assistant Consolidation Officer, or the Consolidation Officer, as the Settlement Officer, Consolidation, may think fit with such directions as he may consider necessary.'

28. The first point urged was that it was no longer necessary to take into consideration the views of the Consolidation Committee which was essential under the original provisions. In my opinion, that is not so. It is true that under the original Section 12 (2) and Rule 34 (both having been changed now) it was incumbent on the Assistant Consolidation Officer to incorporate the views of the Consolidation Committee in his report to the Consolidation Officer, but now no mention is made of any such report being made by the Assistant Consolidation Officer to the Consolidation Officer under Section 9-A, which has replaced old Section 12. Now, Rule 25-A clearly says that the Assistant Consolidation Officer will send a reportNo doubt, specific mention has not been made about incorporating the views of the Consolidation Committee but when the Assistant Consolidation Officer had to consult that Committee under Sections 8 and 8-A, it implies that he would give its views also in his report.

The same is not true of Section 9-B which does make a mention of the Consolidation Committee in the section itself. Not only that, Section 9-B enjoins not only upon the Consolidation Officer but also on the Settlement Officer (Consolidation) hearing an appeal to give notice not only to the parties concerned but also to the Consolidation Committee at the time of making local inspection. That is not a mere empty formality. To put it bluntly, the Consolidation Committee is not to be there simply to show the faces of its members. The purpose could be nothing else but to have its views also. Similar provisions are to be found in Section 21. Consequently, it cannot be held that the Consolidation Committee has no say in the matter even now.

29. The next contention was that old Rule 34 which set out 'the manner prescribed' under which the discretion to take evidence rested with the Consolidation Officer has been deleted and now a new Rule 26 has been incorporated, under paragraph 2 of which it has been made obligatory on the Consolidation Officer to hear the parties, frame issues on the points in dispute, take evidence, both oral and documentary, and decide the objections. On the basis of the above provision it was very vehemently stressed that the requisites laid down by the Supreme Court in the cases mentioned in the earlier part of this judgment had been fulfilled and that, therefore. Consolidation Officer should be held to be a 'Court'. Here again, the Consolidation Committee will stand in the way. The influence of a third party, however, remote, should not have any part to play in formulating the decision.

30. Thirdly, stand was taken on the words 'shall be deemed to be a Court of competent jurisdiction' in Section 9-A on whose basis it was said that the Consolidation Officer was a Court. There was no necessity of using any epithet or introducing this legal fiction if they were full-fledged Courts and the legislature intended to give them that status. The Privy-Council has held that when a person is 'deemed to be something', the only meaning possible is that whereas he is not in reality that something, the legislature requires him to be treated as if he were. (See the Commissioner of Income Tax, Bombay v. the Bombay Trust Corporation Ltd. . The same view has been held by the Supreme Court in the Commissioner ofIncome-tax, Madras v. Express Newspapers Ltd., Madras : [1964]53ITR250(SC) , Thus the very use of the words 'deemed to be' goes to show that the legislature did not intend to give full status of Courts to the authorities constituted under the Act. It may, however, be urged that the legal fiction should at least be given effect to for the purpose for which it is created and so the Consolidation Authorities can be held to be Courts for the limited purposes in the provisions where the deeming Clause has been used. In the present case it appears that the legislature did not intend to give the authorities the full status of Courts even in that limited sphere. This is indicated by the fact that the word 'Court' which was used independently and without any epithets in original Section 22 of the Act, which came to be interpreted by a Full Bench of this Court in Sita Ram's case : AIR1969All342 (Supra) as not including the Consolidation Officer, the Settlement Officer (Consolidation), and the Deputy Director of Consolidation was deleted in its entirety by the Amending Act of 1963.

31. From the above, it would appear that the Consolidation Officer under the Act or even Officers higher to him cannot be held to be Courts mainly because the views of the Consolidation Committee are always before them and they can be influenced by those views in their decisions.

32. It may now be seen as to whether the various authorities constituted under the Act are governed by the Code of Civil Procedure in the matter of procedure. On an examination of the various provisions of the Act it would appear that all the provisions of the Code of Civil Procedure have not been made applicable to the proceedings under the Act. Some limited powers have been specifically given under Section 38 and enlarged by Rule 26, which have been again supplemented by S. 41, which says that the provisions of Chapters IX and X of the U. P. Land Revenue Act, 1901, shall apply to all proceedings under the Act. On a perusal of the provisions of Section 33 and Rule 26 it would appear that they make a mention of the application of only some provisions of the Code of Civil Procedure. In the same way the provisions in Chapters IX and X of the Land Revenue Act show that all the provisions of the Code of Civil Procedure have not been made applicable to the proceedings under that Act also. As such, it could not be held that all the provisions of the Code of Civil Procedure have been made applicable to the proceedings under the Act. Had the intention of the legislature been to make all the provisions of the Code of Civil Procedure applicable to the proceedings under the Act, it could have said so just in one sentence.

33. Still, it was averred that though all the provisions of the Code of Civil Procedure had not been made applicable to revenue Courts, they were still held to be Courts. On that analogy it was contended that the various authorities constituted under the Act were at least revenue Courts and, as such. Courts of Civil Jurisdiction, and that, therefore, Oath Commissioners appointed by District Judges could verify the affidavits to be filed before them. For that contention, reliance was placed on a decision of the Judicial Commissioner's Court at Nagpur in Bade v. Emperor, AIR 1935 Nag 125 (1) which had relied on an earlier Full Bench decision of this Court in Madho Prakash. Singh v. Murli Manohar, (1883) ILR 5 All 406.

As against those cases, the Standing Counsel Mr. M. N. Shukla cited a Full Bench decision of the Patna High Court in Arjun Rautura v. Krishna Chandra Gaipati Narayan Deo, AIR 1942 Pat 1 (FB). The rulings relied upon by the learned counsel for the petitioners can have no application to the present case because the Full Bench decision in (1883) ILR 5 All 406 (FB) was given under the old Code of Civil Procedure in which revenue Courts were not separately defined. Now, a revenue Court has been described specifically in Section 5(2) of the present Code as follows:--

'Revenue Court in Sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.'

34. From the above description of revenue Courts it would appear that it deals with suits or other proceedings relating to rent, revenue or profits of land used for agricultural purposes. Under the Act, the proceedings do not relate either to rent, revenue or profits of land used for agricultural purposes. On the other hand, the Act provides for the consolidation of agricultural holdings for the development of agriculture. Obviously, therefore, consolidation Courts cannot come in the category of revenue Courts, as defined by Section 5(2) of the Code of Civil Procedure.

35. It would thus appear that the various authorities constituted under the Act can neither be held to be Courts of civil jurisdiction nor governed by the Code of Civil Procedure in the matter of procedure. It follows, therefore, that the petitioners cannot verify the affidavits to be filed before the various authorities constituted under the U. P. Consolidation of Holdings Act.

36. Consequently, this writ petition must be dismissed.

T.P. Mukerjee, J.

37. I agree with the conclusions arrived at by my learned brother Misra, J.

38. I regret, however, I am unable to agree with him in the view that the consolidation authorities, mentioned in Section 9-A of the Act, do not have 'the full status of Courts' even for the limited purpose of that section. Section 9-A of the Act deals with 'Disposal of cases relating to claims to land and partition of joint holdings' and it provides:--

'9-A (1) The Assistant Consolidation Officer shall--

(i) where objections in respect of claims to land or partition of joint holdings are filed, after hearing the parties concerned, and

(ii) where no objections are filed, after making such enquiry as he may deem necessary,settle the dispute, correct the mistakes and effect partition as far as may be by conciliation between the parties appearing before him and pass orders on the basis of such conciliation.

(2) All cases which are not disposed ofby the Assistant Consolidation Officer under Sub-section (1), all cases relating to valuation of plots and all cases relating to valuation of tress, wells or other improvements, for calculating compensation therefor, and its apportionment amongst co-owners, if there be more owners than one, shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer, who shall dispose of the same in the manner prescribed.

(3) The Assistant Consolidation Officer, while acting under Sub-section (1) and the Consolidation Officer, while acting under Sub-section (2), shall be deemed to be a Court of competent jurisdiction, anything to the contrary contained in any other law for the time being in force notwithstanding.'

Sub-section (3) of Section 9-A quoted above, states categorically that the Assistant Consolidation Officer and the Consolidation Officer, while acting, respectively under Sub-sections (1) and (2), shall be deemed to be a Court of competent jurisdiction. The words 'deemed to be' in Sub-section (3) imply that although the consolidation authorities referred to in Section 9-A are not in reality Courts, the Legislature intended that they shall be deemed to be Courts when they act within the limited ambit of that section.

39. The fact that in the case of : AIR1969All342 a Full Bench of this Court held that the word 'Court' occurring in Section 22 (2) of the Act, as it was originally worded, did not refer to consolidation authorities in my opinion, has no bearing on the construction of Section 9-A of the Act, Sec-tion 22 (2) of the Act, as it stood before, ran as follows:--

'Upon the publication of the Statement of Proposals under Sub-section (1) of the Section 20 all suits or proceedings in the Court of first instance, appeal, reference or revision, in which the question of title or a question whether any person is a Sirdar, Adhivasi or asami in relation to the same land has been raised, shall be stayed.'

40. Commenting on this Sub-section, Beg, J., who spoke for the Full Bench, observed that the word 'Court' used therein did not mean consolidation authorities. The terms of Section 9-A of the Act (introduced by Act 8 of 1963) are not, however, in pari materia with Section 22 (2). By Section 9-A, the Legislature enjoins that the Assistant Consolidation Officer and the Consolidation Officer shall be deemed to be Courts when acting under Sub-sections (1) and (2) of that section. The terms of Section 9-A are clear and unequivocal. The duty of a Court in interpreting a statute is to give effect to the intention of the Legislature as expressed by the language thereof. In this connection it may be appropriate to reproduce the dictum laid down by Lord Asquith, in memorable words, in East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109:--

'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 imagine a 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.'

41. Thus, according to Lord Asquith, a legal fiction created by a statute has to be given its full effect without allowing the mind 'to boggle' and it must be held that the Assistant Consolidation Officer and the Consolidation Officer, when they dispose of matters mentioned in Sub-sections (1) and (2) of Section 9-A have the 'full status of Courts', anything to the contrary contained in any other law for the time being in force notwithstanding.

42. That does not, however, necessarily mean that the Oath Commissioners appointed by the District Judges would be competent to verify affidavits before the consolidation authorities when they discharge their functions under Section 9-A of the Act. Such Oath Commissioners are appointed under Clause(c) of Section 139 of the Civil Procedure Code which lays down:--

'139. In the case of any affidavit under this Code,

(a) any Court or Magistrate, or

(b) any officer or other person whom a High Court may appoint in this behalf, or

(c) any officer appointed by any other Court which the State Government has generally or specially empowered in this behalf,may administer the oath to the deponent.'

It is manifest from the language of this section that Oath Commissioners may administer oath to the deponent 'in the case of any affidavit under this Code.' Section 141 provides that procedure laid down in the Civil Procedure Code shall be followed in all proceedings 'in any Court of Civil jurisdiction' and the Preamble to the Code shows that it was enacted to consolidate and amend the laws relating to 'the procedure of the Courts of Civil Judicature.' Rule 1 of Order 19 of the Code lays down, inter alia, that 'any Court may, for sufficient reason, order that any particular fact or facts may be proved by affidavit.........' It follows fromthese provisions that the authority to administer oath to a deponent is confined exclusively to a proceeding in a Court of Civil Judicature to which the provisions of the Civil Procedure Code apply. Section 9-A of the Act, as already noted, enacts that the Assistant Consolidation Officer and Consolidation Officer shall be deemed to be 'a Court of competent jurisdiction' when they act under Sub-sections (1) and (2) of that section. Section 2-A does not lay down that the consolidation authorities are to be regarded as 'a Court of civil jurisdiction' and, as my learned brother Misra, J. has pointed out, all the provisions of the Civil P. C. are not applicable to proceedings before such authorities. He has also shown that in view of Section 5(2) introduced in the Civil P. C. of 1908, Revenue Courts cannot be regarded as Civil Courts.

43. The result is, obviously, that the Oath Commissioners are not competent to verify affidavits even for the purposes of the proceedings under Section 9-A of the Act.

B.D. Gupta, J.

44. I have had the benefit of reading the judgment of brother Misra and am in agreement with the opinion recorded by him that the various authorities constituted under the U. P. Consolidation of Holdings Act can neither be held Courts of civil Jurisdiction nor be governed by the Code of Civil Procedure and 'that, therefore, the petitioners cannot verify affidavits desired to be filed before the various authorities constituted under the said Act.

45. As regards the divergence of opinion between brother Misra and brother Mukerji on the Question whether the consolidation authorities mentioned in Section 9-A of the Act have the full status of Courts for the limited purpose of thatSection, I express no opinion because the expression of any opinion in regard to the above question does not appear necessary for deciding the case before us and will be in the nature of obiter.

BY THE COURT

46. In view of our opinion that the petitioners cannot verify affidavits desired to be filed before the various authorities constituted under the U. P. Consolidation of Holdings Act, the petitioners are not entitled to any relief.

Accordingly this petition is dismissed with costs.


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