Skip to content


Udai Bhan Singh and ors. Vs. the Board of Revenue, U.P., Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal Nos. 879 of 1969, 1017 of 1970 and 334 and 411 of 1971 and W.P. No. 1780 of 1970
Judge
Reported inAIR1974All202
ActsUttar Pradesh Consolidation of Holdings Act, 1954 - Sections 4, 5(2), 52 and 52(2); Constitution of India - Articles 226 and 245
AppellantUdai Bhan Singh and ors.
RespondentThe Board of Revenue, U.P., Allahabad and ors.
Appellant AdvocateR.P. Shivhare, Adv.
Respondent AdvocateR.P. Tewari, ;S.C. Khare, Advs. and ;Standing Counsel
Excerpt:
civil - declaration of rights in land - sections 4, 5 (2) (a) and 52 of u.p. consolidation of holdings act, 1954 and articles 226 and 245 of constitution of india - declaration of rights in land notified under section 4 of the act - orders passed in suit under challenge - section 5 (2) (a) has no impact on writ petitions or writ appeals. - - ' 6. section 5 (2) (a) which we are [called upon to construe is attracted only to |(1) 'every proceeding for correction of reords',to (2) 'every suit and proceeding in respect of declaration of rights or interest in any land lying in the area' and to (3) 'every suit or proceeding for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this act,'provided the other conditions of that.....yashoda nandan, j.1. a bench consisting of satish chandra and n. d. ojha, jj., has referred to this full bench the following question for its answer:'what is the impact of section 5 (2) (a) of the u. p. consolidation of holdings act, 1953 on writ petitions or special appeals arising out of them in which judgment or orders passed in suits or proceedings relating to declaration of rights in land covered by a notification under section 4 of the consolidation of holdings act are impugned?'there was a divergence of opinion between the two learned judges on the above question. while satish chandra, j., took the view that the suit or proceeding giving rise to a writ petition is pending in this court and abates by virtue of section 5 (2) (a) of the u. p. consolidation of holdings act hereinafter.....
Judgment:

Yashoda Nandan, J.

1. A Bench Consisting of Satish Chandra and N. D. Ojha, JJ., has referred to this Full Bench the following question for its answer:

'What is the impact of Section 5 (2) (a) of the U. P. Consolidation of Holdings Act, 1953 on writ petitions or special appeals arising out of them in which judgment or orders passed in suits or proceedings relating to declaration of rights in land covered by a notification under Section 4 of the Consolidation of Holdings Act are impugned?'

There was a divergence of opinion between the two learned Judges on the above question. While Satish Chandra, J., took the view that the suit or proceeding giving rise to a writ petition is pending in this court and abates by virtue of Section 5 (2) (a) of the U. P. Consolidation of Holdings Act hereinafter referred to as the Act -- on a notification under Section 4 thereof being Issued, N. D. Ojha, J., was of a contrary opinion.

2. Before embarking on a consideration of the impact of Section 5 (2) (a) of the Act, it is necessary to appreciate the true nature and character of proceedings under Article 226 of the Constitution and special appeals against orders passed in such proceedings.

3. An order passed by the High Court under Article 226 of the Constitution, as held by the Supreme Court in State of Uttar Pradesh v. Dr. Vijay Anand Maharaj, AIR 1963 SC 946 and Ramesh v. Gendalal Motilal, AIR 1966 SC 1445 is one in exercise of its extra-ordinary original civil jurisdiction. When a writ petition is filed challenging a decision in a suit or proceeding declaring or adjudicating rights or interest in any land, this Court calls for the record of the suit or proceeding and if it is found to be without jurisdiction or if there is an error of law apparent on the face of the record, the judgment or order is quashed. This Court after quashing the order cannot substitute its own order or decree for the order or decree impugned but must send back to the court or authority concerned for deciding the case in accordance with law declared by it. The executable order with regard to the rights of the parties in dispute in such a case is not the order of this Court passed in the writ petition but the decision ultimately given by the court or authorityof which the order was in challenge. If, on the other hand, the petition for a writ is dismissed, again, it is the order of the court or authority concerned which was impugned that decides the rights of the parties in dispute. It was held by the Supreme Court in AIR 1966 SC 1445 (supra) that:

'A petition to the High Court invoking this jurisdiction is a proceeding quite independent of the original controversy. The controversy in the High Court, in proceedings arising under Article 226 ordinarily is whether a decision of or a proceeding before, a court or tribunal or authority, should be allowed to stand or should be quashed, for want of jurisdiction or on account of errors of law apparent on the face of the record.'

It is thus clear that a decision in a writ petition is not a decision about the merits of the rights of the parties in issue in the proceedings giving rise to it. It has further to be noted that a proceeding under Article 226 of the Constitution is not a continuation of the suit or proceeding giving rise to it and there exists a clear distinction between an appeal or revision and a writ petition directed against orders passed therein. It was held by the Supreme Court in Ahmedabad . v. Ramtahel Ramanand, (AIR 1972 SC 1598) that:

'Under Article 226 of the Constitution it may in this connection be pointed out that the High Court does not hear an appeal or a revision; that court is moved to interfere after bringing before itself the record of a case decided by or pending before a court, a tribunal or an authority, within its jurisdiction. A decision in the exercise of this extraordinary jurisdiction which finally disposes of the proceedings is a final order, in an original proceeding. An appeal or a revision on the other hand is generally considered to be a continuation of the original suit or proceeding...............'

If a writ petition is not a continuation of the original suit or proceeding unlike an appeal or revision the inference is not only reasonable but inevitable that orders passed in the original suit or proceeding or in an appeal or revision arising therefrom do not merge in the orders passed in such petition. Since a special appeal, directed against an order passed in a writ petition is merely a rehearing of the petition itself, it has all the abovementioned characteristics of a petition under Article 226 of the Constitution. The above described features of writ petitions must be borne in mind while considering the question referred to us.

4. I shall now proceed to consider the scope of Section 5 (2) (a) of the Act disembarrassed by the case-law dealing with the question referred to us.

5. Section 5 (2) (a), to the extent relevant for our purposes, runs as follows:

'5. Effect of notification under Section 4 (2) (1): Upon the publication of thenotification under Sub-section (2) of Section 4 in the Official Gazette, the consequences as hereinafter set forth, shall subject to the provisions of this Act, from the date specified thereunder till the publication of notification under Section 52 or Sub-section (1) of Section 6, as the case may be, ensue in the area to which the notification under Sub-section (2) of Section 4 relates; namely-

(a) the district or part thereof, as the case may be, shall be deemed to be under consolidation and the duty of maintaining the record of rights and preparing the village map, the field book and the annual register of each village shall be performed by the District Deputy Director of Consolidation who, shall maintain or prepare them, as the case may be, in the manner prescribed;

(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 and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order passed in this behalf by the court or authority before whom such suit or proceeding is pending, stand abated:

.....

(b) such abatement shall be without prejudice to the right of the person affected to agitate the right or interest in dispute in the said suit or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder.'

6. Section 5 (2) (a) which we are [called upon to construe is attracted only to |(1) 'every proceeding for correction of reords', to (2) 'every suit and proceeding in respect of declaration of rights or interest in any land lying in the area' and to (3) 'every suit or proceeding for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act,' provided the other conditions of that provision are satisfied. Since proceedings under Article 226 of the Constitution are not a continuation of the original proceedings but are independent of it as held by the Supreme Court in Ramesh AIR 1966 SC 1445 (supra), a petition challenging the decision of a court or authority in a proceeding for correction of records is evidently not a proceeding for the correction of records. No order for correction of records can be passed in such a writ petition. For the same reason, a petition challenging an order passed in a suit or proceeding fordeclaration or adjudication of any other rights in regard to which proceedings can or ought to be taken under the Act cannot be considered to be a suit or proceeding for declaration or adjudication of any such right. The question surviving for consideration is as to whether a petition under Article 226 of the Constitution can be characterized as a 'proceeding in respect of declaration of rights or interest in any land', and thus falls within the second category of cases enumerated above. The meanings of the phrase 'in respect of' according to Webster's New Twentieth Century Dictionary are 'with respect to' or 'as regard'. While the third category deals with 'every suit or proceeding for declaration', the second category is concerned with 'suit or proceeding in respect of declaration of rights or interest in land'. The scope of the second category is wider than that of the third. It appears to me that while the third category is concerned with cases in which rights of parties are directly declared, in the second category are covered cases in which declaration of rights in land is only indirectly though necessarily involved. To my mind, only suits and proceedings which involve indirectly though necessarily declaration of rights or interest in land can be properly described as suits or proceedings in respect of declaration of rights or interest in anyland lying in the area in respect of which a notification under Section 4 (2) had been issued. Suits for partition of holdings or for cancellation of sale-deeds in respect of agricultural holdings on the ground that they are void would be suits in respect of declaration of rights or interests in land because the decision in such suits would necessarily involve declaration of rights or interests in the land in question. In Ram Adhar Singh v. Ramroop Singh, 1968 All LJ 46 = (AIR 1968 SC 714) the question before the Supreme Court was as to whether a suit filed under Section 209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U. P. Act I of 1950) would abate by reason of Section 5 (2) (a) of the Act, It was held by the Supreme Court that:

'Suits for possession, as such has not been expressly referred to in 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 totake 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.'

7. In Gorakh Nath Dube v. Hari Narain Singh (AIR 1973 SC 2451) the question was as to whether a second appeal arising out of a suit for cancellation of a sale deed to the extent of a half share claimed by the plaintiff in fixed rate tenancy plotson payment of Rs. 250/- or whatever sum the plaintiff may be found liable to pay, and, after cancellation of the sale-deed to the extent of the plaintiff's share, for an award of possession of the plaintiff's share was liable to be abated under Section 5 (2) (a) of the Act. It was held by the Supreme Court that Section 5 (2) (a) of the Act applied to the case because in the suit.

'An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject-matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective. ............'

The test applied by the Supreme Court in the abovementioned decisions was as to whether in the suit or proceeding a declaration of rights or interests in any land lying in the area in regard to which a notification under Section 4 (2) of the Act had been issued was necessarily involved. As already held, in a writ petition arising out of a suit or proceeding in respect of a declaration of rights or interests in any land, the High Court itself does not decide the rights of the parties which formed subject-matter of the suit or proceeding. On the language of Section 5 (2) (a) of the Act consequently petitions under Article 226 of the Constitution cannot be considered to be either suits or proceedings of the nature contemplated by that provision.

8. Moreover, if a writ petition challenging judgments, orders or decrees passed in suits or proceedings of the nature envisaged by Section 5 (2) (a) of the Act is filed, those suits or proceedings cannot be held to be pending in this Court. In Stroud's Judicial Dictionary, Edition 3, Vol. 3, p. 2114, the word 'pending' is thus defined:

'Pending -- (1) A legal proceeding is 'pending' as soon as commenced and until it is concluded, i.e., so long as the Court having original cognizance of it can make an order on the matters in issue or to be dealt with, therein.'

This definition of the word 'pending' was adopted by the Supreme Court in Asgarali Nazarali Singaporewalla v. State of Bombay, AIR 1957 SC 503 = (1957 Cri LJ 605). Thus a legal proceeding can be said to be pending before a court only if that court has power to make an order on the matters in issue in those proceedings. Suits or proceedings have been held to be pending during appeals or revisions against decisions therein because the appeals or revisions are continuations of the original suits or proceedings and the appellate or revisional authorities are in a position to decide on meritsthe matters in issue and the orders or decrees of the courts or authorities of the first instance become merged in the appellate or revisional judgments or decrees as the case might be. Since proceedings in a writ petition are independent of the original proceedings and not a continuation thereof, it cannot be held that the suit or proceeding giving rise to a writ is pending before the High Court. The High Court is not in a position in a writ under Article 226 of the Constitution to render a definitive judgment deciding the questions that were in issue in the suit or proceeding. The fact that a petition under Article 226 puts in jeopardy the orders or decrees passed in a suit or proceeding provides no conclusive test for holding that the suit or proceeding is pending in the High Court till the decision of the writ petition. A suit for cancellation of a decree in another suit on allegation of its having been obtained by fraud does jeopardise the decree but it would be idle to contend that during the pendency of such a suit the suit in which the decree, the cancellation of which is sought, was passed also becomes pending. This is so, for the simple reason that in the subsequent suit the matters that were in issue in the earlier suit cannot be adjudicated upon. Similarly though a writ petition puts in jeopardy the orders or decrees impugned, since the High Court is not in a position in the writ to decide the matters in issue in the suit or proceeding giving rise to it the suit or proceeding cannot be considered to be pending till the decision of the writ. In this view of the matter, the re-quirement of Section 5 (2) (a) of the Act that the suit or proceeding should be pending on the date of the notification under Section 4 (2) of the Act is also not satisfied.

9. Assuming that a suit or proceeding is pending in this Court till orders are passed in the writ petition challenging orders passed therein, to attract Section 5 (2) (a) it is essential that the suit or proceeding should be pending either in a court of first instance or of appeal, reference or revision. Whether this condition is satisfied or not can best be considered in the light of the prevailing law dealing with land tenures in the State. Suits for declaration or adjudication of rights of tenure-holders are required by U. P. Act I of 1951 to be filed before an Assistant Collector of the first class. A first appeal against the judgments and decrees lies to the Commissioner of the Division and a second appeal to the Board of Revenue. If a writ petition is filed challenging a judgment of the Board of Revenue in a second appeal in such a suit it cannot be reasonably contended that the suit is pending either in the court of first instance or in a court of appeal, reference or revision. The Court of first instance in such a case would obviously be the Court of the Assistant Collector where the suit was initiated and the courts of appeals or revision would be the Commissioner or the Board. Though the High Courtis a court of first instance for the purposes of the writ which is an original proceedings, it is evidence that it is not a court of first instance as far as the suit or proceeding giving rise to it is concerned. It is trite that there cannot be two courts of first instance in the same suit or proceeding. Similarly, when a special appeal is filed challenging an order passed in a writ petition, it is the writ petition which is pending in a court of appeal and not the suit or proceeding which gave rise to it.

10. An analysis of the language employed in Section 5 (2) (a) of the Act consequently leaves no room for doubt that it has no impact on a writ petition filed challenging orders passed in suits or proceedings provided for by that provision.

11. There are other weighty reasons leading to the same conclusion. Sub-section (2) of Section 52 provides that

'any order passed by a court of competent jurisdiction in cases of writs filed under the provisions of the Constitution of India, or in cases or proceedings pending under this Act on the date of issue of the notification under Sub-section (1), shall be given effect to by such authorities as may be prescribed and the consolidation operations shall, for that purpose be deemed to have not been closed.'

It is significant that Sub-section (2) of Section 52 is not confined to orders passed in writ petitions challenging decisions in proceedings under the Act. If the legislature had intended that writ petitions pending on the date of a notification issued under Section 4 (2) of the Act should be affected it would have been expected to employ language confining the operation of Sub-section (2) of Section 52 to orders passed under Article 226 of the Constitution in which the proceedings under the Act were in challenge. Section 52 (2), in my opinion, is a clear indication of the intention of the legislature that petitions under Article 226 of the Constitution will remain unaffected by Section 5 (2) of the Act.

12. I am further of the view that if Section 5 (2) (a) of the Act is construed so as to be applicable to proceedings under Article 226 of the Constitution the provision would have to be declared ultra vires of the powers of the State Legislature to that ex-tent. The Act is a State Legislation. It cannot have the effect of curtailing the constitutional powers of this Court under Article 226. I find support in the view taken by me from a decision of a Full Bench of this Court in Adarsh Bhandar, Aligarh v. Sales Tax Officer, Aligarh, AIR 1959 All 557 (FB). The material facts of that decision were that on the 3Ist March, 1956, the Governor of the State in purported exercise of his powers under Section 3-A of the U. P. Sales Tax Act, 1948, issued a Notification by which he was pleased to declare that the turn-over in respect of certain specified classes of goods imported from outside UttarPradesh would, with effect from the 1st April, 1956, be taxed at the rate specified in that notification. M/s. Adarsh Bhandar was on the 14th September, 1956, assessed to a certain amount of sales tax. A demand notice in respect of the amount was issued on the 15th September, 1956. M/s. Adarsh Bhandar filed a petition in this court under Article 226 of the Constitution challenging the validity of the assessment order and the notice of demand. By its order D/- 5-5-1957, this Court allowed the writ petition and a writ in the nature of certiorari was directed to be issued quashing the order of assessment as well as the notice of demand. As a consequence of the order passed by this Court, the State Legislature enacted the U. P. Sales Tax (Validation) Act, 1958, hereinafter referred to as the Validating Act which came into force on the 6th May, 1958. Section 3 (1) of the Validating Act purported to validate with retrospective effect notwithstanding any judgment, decree or order of any court, the notifications specified in the schedule thereto including the notification on the basis of which M/s. Adarsh Bhandas had been earlier assessed by means of the assessment order which had been quashed by this Court. Sub-section (2) of the Validating Act purported to impart validity With retrospective effect to assessments made OB taxes levied or collected in pursuance of any of the notifications specified in the Schedule.

Section 4 of the Validating Act was as follows:--

'Where before the commencement of this Act, any court or authority has, in any proceeding, set aside or modified any assessment, levy or collection of any tax merely on the ground that the assessing authority had no jurisdiction to assess, levy or collect any tax in pursuance of any notification specified in the schedule, any party to the proceeding or the Commissioner of Sales Tax may, within ninety days, from the date of the commencement of this Act, make an application to such court or authority for a review of the proceeding and thereupon, such court or authority shall review the proceeding and may make such order varying or revising the order previously made, as may be necessary, to give effect to the provisions of this Act.'

After the coming into force of the Validating Act, an application was filed by the Commissioner of Sales Tax in this Court under Section 4 of the Validating Act quoted above for the review of its order dated 5th May, 1957. The question that arose for consideration before the Full Bench was as to whether the State Legislature was competent to legislate so as to affect the powers of the Court under Article 226 of the Constitution and to make it incumbent on it to review an order passed by it in exercise of its constitutional powers. The Full Bench held that:

'The Legislature derives its power to legislate from Article 245 of the Constitution and that Article specifically makes thepower subject to the provisions of the Constitution which include Article 226. Learned Counsel for the State therefore concedes that it is not open to the legislature to enact any law which either directly or indirectly affects the powers conferred by Article 226 of the Constitution on the High Court. As Section 4 of the Validation Act leaves no discretion with the High Court in the matter of agreeing or refusing to review its previous order and, after a review is granted, makes it obligatory on the High Court to pass a particular order, it is obvious that it seriously affects those powers. In enacting this provision the legislature, in our opinion, clearly exceeded its authority and contravened Article 245 of the Constitution.

The learned Counsel for the State however, urged that even under Article 226 the Court was bound to follow the law and the law which it had to follow was the law laid down by the legislature. Within the range of its competency therefore the legislature could lay down any law which it considered proper and the High Court could not refuse to enforce it. What Section 4 enacted could, he contended, be considered to relate either to sales tax or to the power of review -- a matter of procedure to be followed by Courts. The former is covered by Item No. 54 of List II of the Schedule VII of the Constitution and the latter by Item No. 13 of List III.

There can be no doubt that sales tax and matters incidental to it are subjects on which the State Legislature can legislate, but in so legislating it cannot override or contravene the other provisions of the Constitution. While legislating on the subject of sales tax therefore it cannot be open to the State legislature to pass a law on the subject of Sales Tax affecting in any way the powers of the High Court under Article 226.

The power of the High Court to review an order passed by it under Article 226 of the Constitution is either included in the power conferred by the Article itself or can be exercised under the Code of Civil Procedure in case the proceeding is treated as a civil proceeding. In the former case the provisions of Section 4 by taking away the discretion to refuse to review if the High Court is of the opinion that review should not be granted and by requiring the High Court to pass a particular order and no other indirectly curtails the power conferred by the Constitution and the State Legislature had no authority to do so. In the latter case the provisions of compulsory review on a ground not mentioned in Section 104 or Order XLVII, Rule 1 of the Code of Civil Procedure come into conflict with those provisions of law enacted by the Centre and must on that account be held to be void in view of Article 254 of the Constitution.'

13. A similar view was taken by the Supreme Court in AIR 1963 SC 946. The facts leading up to the appeal before theSupreme Court were that the Additional Collector, Banaras, in exercise of the powers conferred on him under provisions of the U. P. Agricultural Income-tax Act (Act in of 1949), assessed the respondent to a certain amount as agricultural income-tax fop the year 1359 Fasli. The respondent filed a petition in this Court under Article 226 of the Constitution for quashing the said order on the ground that the Additional Collector, Banaras, had no jurisdiction to make the said assessment On the 22nd November, 1955, Mehrotra, J., allowed the writ petition and quashed the said assessment No appeal was preferred by the State of Uttar Pradesh. On the 9th February, 1956, the State of Uttar Pradesh promulgated an Ordinance, being Ordinance No. II of 1956, which was subsequently replaced by U. P. Act No. XIV of 1956. Under the provisions of the Ordinance, the assessments made by the Additional Collector were retrospectively validated and, under Section 6, therefore, a right was conferred upon any party to the proceedings under the U. P. Agricultural Income-tax Act, 1948, wherein any assessment made by an Additional Collector or Additional Assistant Collector was set aside merely on the ground that the assessing authority had no jurisdiction to make the assessment, to apply within 90 days from the date of the commencement of the said Ordinance for a review of the said proceedings in the light of the provisions of the Ordinance, and a statutory injunction was imposed upon courts to review their orders accordingly. Persuant to the provisions of Section 6 of the said Ordinance, the State of Uttar Pradesh filed an application in the High Court of Allahabad for review of its order dated 22nd November, 1956. The application was heard by Mehrotra, J., who held that Section 11 of that Act which corresponded to Section 6 of the Ordinance did not entitle the appellants to file an application for review of an order of the High Court under Article 226 of the Constitution. The appellants' petition was dismissed on that ground. An appeal preferred against the order of Mehrotra, J., was heard by Mootham, C. J. and Srivastava, J., who dismissed it firstly on the ground that under Chapter VIII, Rule 5 of the Rules of Court a special appeal against an order of a single Judge of the Court can be maintained only if that order amounts to a 'judgment', and an order refusing an application for review not being a 'judgment' cannot be the subject of an appeal and secondly that on the construction of Section 11 of that Act, the view taken by Mehrotra, J., was correct. The State appealed to the Supreme Court.

While construing Section 11 of the Validation Act, the Supreme Court held that:--

'Should it be held that this section applies to an order made by a High Court under Article 226 of the Constitution, the statutory mandatory injunction issued under the second part of the Section to the High Court to make an order in a particular way.would be constitutionally void. Under the Constitution the Legislature of a State derives its authority to make laws under Article 245 of the Constitution, which reads:

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...

Article 245 is, therefore, subject to Article 226 of the Constitution. It follows that no law made by the Legislature of a State can be in derogation of the powers of the High Court under Article 226 of the Constitution. It is well settled that Article 226 confers a discretionary power on the High Courts to make or issue appropriate orders and writs for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. While Article 226 confers a discretionary power on the High Court, the second part of Section 11 of the Act enjoins on the High Court to make an order in a particular way. We should not give such a construction to the section as would bring it into conflict with Article 226 of the Constitution and which would have the effect of invalidating it to that extent.'

It is an elementary rule of construction that an interpretation which would lead to the invalidity of a provision of law must be avoided. There is nothing in Section 5 (2) (a) of the Act which would compel me to take the view that it applies to writ petitions and is consequently ultra vires of the legislative powers of the State Legislature on that account. Brother Satish Chandra took the View that if Section 5 (2) (a) of the Act is held to apply to the writ petitions and to special appeals arising therefrom, its constitutional validity would not be affected. He relied for that view primarily on a decision of this Court in Special Appeal No. 455 of 1972 (All), Raja Ram v. Jodha Ram and Ram Adhar Singh v. Ramroop Singb (supra) decided by the Supreme Court (reported in AIR 1968 SC 714). Both these decisions, in my opinion, are distinguishable. The decision in Special Appeal No. 455 of 1972 (All) was with regard to the validity of a State Legislation abolishing special appeals against decisions under Article 226 of the Constitution in a specified class of cases. The enactment was held to be valid. The Constitution does not provide for special appeals against orders passed in writ petitions. Therefore, this Court was not concerned with the question of the curtailment of its powers under Article 226 of the Constitution by a State enactment. In 1968 All LJ 46 = (AIR 1968 SC 714) (supra) while a special appeal under Article 136 of the Constitution was pending arising out of a suit under Section 209 of U. P. Act I of 1951, a notification was issued under Section 4 of the Act. On the basis of Section 5 of the Act, the appellant filed before the Supreme Court a miscellaneous petition praying for an order that the suit pending in appeal stood abated. The application was opposed by the respondent and one of the contentions raised was that if Section 5 (2) (a) as it stands isheld to apply to an appeal before the Supreme Court, it would be ultra vires inasmuch as it took away the jurisdiction of the Court to deal with the appeal. The contention raised by the respondent was rejected by the Supreme Court in the following words:

'The State Legislature has not passed any legislation affecting the jurisdiction of this Court. On the other hand, what the State Legislature has done is only to make provision in respect of matters, within its jurisdiction and to declare that a suit instituted in a Court, within its area, has abated. The position, ultimately, is that this Court takes note of a subsequent event viz. the passing of the Amending Act, and the amendment of Section 5, thereby, by the State Legislature, and, on that basis, it holds that the suit, out of which these proceedings arise, stands abated. Therefore, there is no question of the Legislature of the State having passed any legislation affecting the jurisdiction of this Court'

The observations made above have no application to proceedings under Article 226 of the Constitution and were made with reference to an appeal, though under a constitutional provision. An appeal is a continuation of a suit and it was the suit that was pending before the Supreme Court. By Section 5 (2) (a) of the Act as it stands, the State Legislature had provided for the abatement of the suit. This the State Legislature was evidently competent to do. It did not directly or indirectly affect Article 136 of the Constitution. On the other hand, as already held in a petition under Article 226 the suit or proceeding giving rise to it is not pending. Writ petitions are original proceedings in this Court distinct from and independent of the suit or proceeding out of which it emanates. If Section 5 (2) (a) is construed as directing abatement of writ petitions the effect would be that the constitutional jurisdiction of this Court would directly be curtailed.

14. The decision by M. H. Beg, J, in Vijai Shankar Rai v. Viswanath Rai, 1967 All WR 704 fortifies me in the view expressed above. The material facts in that case were that a writ petition was pending in this Court directed against a judgment of the Board of Revenue given in a second appeal arising out of a suit for declaration of the opposite parties' rights as Bhumidhar and in the alternative for possession against the defendant-petitioner. On behalf of the petitioner on the basis of Section 4 (2) of the Act as it stood after its amendment by Section 2 of the Uttar Pradesh Jot Chakbandi (Sansodhan) Adhiniyam, 1966 it was contended that the writ petition itself be declared to have abated. Section 4 (2) (a) of the Act which came up for consideration was in terms identical with Section 5 (2) (a) as it stands. The learned Judge held as follows:

'All that this provision does is to cause proceedings for correction of records and suits and other proceedings in respect of declaration of rights and other interests in land, for which proceedings could be taken under the U. P. Consolidation of Holdings Act, 1954, to abate. This was a logical corollary of the provisions of Section 49 of the Act. It has nothing to do with the constitutional powers of this Court under Article 226 of the Constitution. The U. P. Legislature is obviously incompetent to affect the powers of this Court under Article 226 of the Constitution by any of its enactments. The Powers of this Court can only be affected by a constitutional amendment of Article 226 for which a special procedure is prescribed by the Constitution. The argument is, therefore, not sound.'

15. For the reasons given above, my answer to the question referred is that Section 5 (2) (a) of the Act has no impact on writ petitions or special appeals arising out of them in which judgments or orders passed in suits or proceedings relating to declaration of rights in land covered by a notification under Section 4 of the Act are in challenge and they will remain unaffected by the provision.

H.N. Seth, J.

16. I agree.

K.B. Asthana, J.

17. I also agree and have nothing to add.

BY THE COURT

18. The answer to the question referred is that Section 5 (2) (a) of the U. P. Consolidation of Holdings Act has no impact on writ petitions or special appeals arising put of them in which judgments or orders passed in suits or proceedings relating to declaration of rights in land covered by a Notification under Section 4 of the said Act are in challenge.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //