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Sita and ors. Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 3279 of 1961
Judge
Reported inAIR1969All342
ActsTenancy Law; Uttar Pradesh Consolidation of Holdings Act, 1954 - Sections 11, 12, 12(3), 12(7), 19, 19(1), 20, 20(2), 21, 22, 22(1), 22(2), 23, 23(1), 34(1), 38, 38(2), 48, 49 and 54; Code of Civil Procedure (CPC) , 1908 - Sections 11; Evidence Act, 1872 - Sections 115; Uttar Pradesh Consolidation of Holdings Rules - Rule 34 and 34(3)
AppellantSita and ors.
RespondentState of U.P. and ors.
Appellant AdvocateSripat Narain Singh, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
(i) tenancy - stay of hearing - sections 12, 19 and 20 of u. p. consolidation of holdings act, 1954 - proceedings under section 12 prior to amendment of 1958 - revision application under section 12 against decision of consolidation officer - publication of name under section 19 of the act - objection by appellant before consolidation authorities - rejection by consolidation authorities that issue already decided in favour of opposite party - petitioner submits that decision under section 12 not final as revision application pending - petitioner further submitted that publication of name under section 19 operates as stay of proceedings under section 12 and issue can be raised fresh under section 20 of the act - held, publication of name does not operate as stay of proceedings under section.....m.h. beg, j.1. this reference to a full bench arises out of a petition under article 226 of the constitution seeking writs of certicrari to quash the orders of the deputy director of consolidation, the settlement officer (consolidation), and the consolidation officer, azamgarh, rejecting the petitioners' objection under section 20 of the u. p. consolidation of holdings act, 1954, (hereinafter referred to as the act), as it stood before its amendment in 1958. the petitioners' objection before the consolidation authorities was that their names were wrongly omitted from the statement of proposals published under section 19 of the act. these statements in c. h. form 23, prescribed by rule 46, must contain a number of particulars laid down in section 19 of the act. among the details to be.....
Judgment:

M.H. Beg, J.

1. This reference to a Full Bench arises out of a petition under Article 226 of the Constitution seeking writs of certicrari to quash the orders of the Deputy Director of Consolidation, the Settlement Officer (Consolidation), and the Consolidation Officer, Azamgarh, rejecting the petitioners' objection under Section 20 of the U. P. Consolidation of Holdings Act, 1954, (hereinafter referred to as the Act), as it stood before its amendment in 1958. The petitioners' objection before the Consolidation authorities was that their names were wrongly omitted from the statement of proposals published under Section 19 of the Act. These statements in C. H. Form 23, prescribed by Rule 46, must contain a number of particulars laid down in Section 19 of the Act. Among the details to be entered in C. H. Form 23, are the name and parentage of each tenure-holder and the class of tenure of each plot in the village which is undergoing consolidation proceedings. The petitioners claimed to be Sirdars of plots Nos. 1011 and 1191 in their village. Their objection was rejected by the Consolidation authorities, in proceedings under Sections 20 and 21 of the Act, on the ground that this question had already been decided between the same parties in favour of Suraj Bhan, opposite party No. 5, who had been held to be the Bhumidhar in previous proceedings under Section 12 of the Act.

2. The petitioners contended that the proceedings under Section 12 of the Act had not resulted in a final order, inasmuch as a revision application under Section 48 of the Act was pending against the decision in proceedings under Section 12 of the Act, when the petitioners' objections under Section 20 of the Act were rejected by the Consolidation Officer and the Settlement Officer. The Deputy Director, however, had revision applications arising out of proceedings both under Section 12 and under Section 20 of the Act before him. He decided them together by means of the same order on 5-8-1961. The Deputy Director (C) laconically observed that he was unable to find any substantial irregularity or illegality in the orders of the authorities below him and dismissed both the revision applications. The result was that the Settlement Officer and the Consolidation Officer had disposed of the petitioners' objection under Section 20 of the Act before the revision application of the petitioners under Section 48 of the Act, pending against the decision of the petitioners' case under Section 12 of the Act with regard to Plots Nos. 1011 and 1191, was finally disposed of.

3. The petitioners' submission was that proceedings under Section 12 of the Act were superseded by proceedings under Sections 20 and 21 of the Act. This contention was supported by a reference to Section 22(2) which read, after an amendment, 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.'

4. The petitioners urged that, even if the principles of res judicata were to be found embodied in various sections of the Act, for proceedings at various stages, the principles were only applicable to a case in which there was a final decision; Section 22(2) of the Act was utilised to build the argument that proceedings under the Act, which were not concluded or finalised, were meant to be stayed so that it followed that an adjudication under Sec-lions 20 and 21 of the Act was meant to take place in all rases where the prior proceedings under Section 12 of the Ad had not reached finality.

5. A still bolder stand, adopted by Mr. Sripat Narain Singh on behalf of the petitioners was that all matters relating to right or title were meant to be really agitated or to be reagitated and determined afresh by means of an elaborrate trial in proceedings under Sections 20 and 21 of the Act. Proceeding under Section 12 of the Act (as it stood before the amendment of the Act in 1958) were sought to be aquated with proceedings in revenue courts for mutation of names and correction of entries in revenue records, and proceedings under Sections 20 and 21 of the Act were sought to be placed, by comparison, in the position of regular suits before Civil and Revenue Courts. This analogy does not appear to be apt at all. It is true that the Consolidation proceedings, as found in the U. P. Act 5 of 1954, seem to proceed upon a distinction between rectification of errors under Sections 8 and 9 of the Act and the more elaborate proceedings under Section 12 of the Act, which may even raise questions of title referable, through a Civil Judge, to the Arbitrator, but there the similarity ends. It may be mentioned here, in passing, that this scheme was replaced, little later, by enlarging the scope of the enquiries under Section 9 as it was found after the U. P. Act XXXVIII of 1958 which amended the original provisions of the Act so as to better serve the objects of Consolidation, The line of thinking based upon any possible division of proceedings into those concerned with mere mutations or corrections of entries and those proceedings which decide questions of right or title of tenure-holders seems to have been entirely abandoned by the amendment of 1958.

6. We are concerned here with the provisions of the Act as they stood before the amending of U. P. Act XXXVIII of 1958. Even under the unamended Act, the adjudication under Section 12 was as elaborate as one under Sections 20 and 21 of the Act. It is intended to decide questions of right and title which could be decided at that stage of the Consolidation proceedings under the Act just as well as under Sections 20 and 21 of the Act. Section 12 (7) specifically provided that an objection relating to title which could be raised in proceedings under Section 12 could not be raised subsequently under Section 20(21 or Section 34(1) of the Act Moreover, the hierarchy of authorities and Presiding Officers conducting the proceedings at different stages is the same. The proceedings pass through the same hands and decisions have to be taken repeatedly by the same Officer. Furthermore, the basic distinction between mutation proceedings, which are primarily meant for fiscal objects of the State, and litigation between parties on questions of individual right and title, is absent here. The consolidation proceedings have what may be called a 'consolidated' purpose.

7. I think the correct meaning of the various provisions of the Act dealing with finality of orders passed could only be properly understood in the light of the intent gathered from the provisions, viewed as a whole, together with the purpose of the enactment which has to be considered where the language of the enactment itself is not clear. It is necessary, in such cases, to keep in mind the malady which an enactment was designed to cure. It was said long ago, in Heydon's case, (1584) 3 Co. Rep. 8;

'And then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and the evasions for the continuance of the mischief and pro private commodo and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico.'

8. The preamble of the Act shows that the consolidation of Agricultural holdings in Uttar Pradesh appeared necessary 'for the development of agriculture.' Its object has been explained by Wanchoo, J., in Attar Singh v. State of U. P., AIR 1959 SC 564 at p. 565. The evil it was designed to check, the fragmentation of holdings, was also commented upon by Dhavan, J. in Smt. Rani v. Deputy Director of Consolidation, 1959 RD 108 = (AIR 1959 All 525). It is sufficient for me to observe that the Act before us was not meant to deprive persons affected by the process of consolidation of either their substantive or remedial rights with regard to land. It provides for the re-adjustment of these rights to the scheme of consolidation formulated under the Act and the adaptation of the scheme to these rights as and when they arise for consideration in the course of a continuing process of consolidation. Recourse to ordinary suits in Civil Courts was practically barred by Section 49 of the Act during the course of consolidation. But, alternative machinery was provided by the Act for decision of disputes which may arise in the course of consolidation proceedings. The elaborate provisions of the Act for determination of various, sometimes over-lapping -- I would like to emphasize that they are over-lapping at times -- questions involving individual as well as collective rights of villagers affected by the process of consolidation, seem to be designed to guard against possible injustice or oversights in the course of preparing and enforcing the scheme. The Act, affords ample opportunities to all those who could genuinely object to put forward their objections find grievances of various types, while there is still time, that is to say, before the process, which ends with a notification under Section 52 of the Act, is finalised. The repeated provisions for the filing of objections could not, however, be meant to enable any person to reagitate precisely the same question on the same facts between the same parties at every stage. To interpret the provisions in such a way as to allow repeated trials of questions already decided earlier would be to permit a misuse of the provisions which would frustrate the objects of the enactment, The process of consolidation may be examined a little more closely now,

9. We have to interpret the Act as it stood in its original form when it was notified and published as U. P. Act No. V of 1954 in the U. P. Gazette on March 8, 1954. This Act divides the process of consolidation into three main parts, and each of the first three parts falls into two halves so that we get the following stages Part I, 'Revision and Correction of Maps and Records', (Chap. 2); (a) 'Preliminary survey and Report' (Sections 4 to 8); (b) 'Statement of plots and tenure-holders' (Sections 11 and 12); Part II (Chapter 3) 'Preparation of Consolidation Scheme'; (a) 'Statement of Principles' (Sections 14 to 18), (b) 'Statement of Proposals' (Sections 19 to 21); and, finally. Part III Chapter 4 'Enforcement of the Scheme' (Sections 24 to 36).

10. The first part dealt with in chapter 2 of the Act is concerned with 'Revision and Correction of Maps and Records'. Here we find that, after a declaration by the State Government under Section 4 of the Act that a particular district or area is under consolidation from the date specified, the duty of preparing and maintaining the maps, the Khasras, and the annual registers under Chapter 3 under Land Revenue Act 1901 is transferred to the Settlement Officer (Consolidation). The functions of the Collector, the Assistant Collector, and the Tahsildar, under the Land Revenue Act, are to be exercised by the Settlement Officer (Consolidation), the Consolidation Officer, and the Asstt. Consolidation Officer, so long as the area remains under consolidation operations. The Assistant Consolidation Officer is then required to examine and test the accuracy of the village maps, khasras and the current annual registers by making a field to field Partal of the entire village. The Asstt. Consolidation Officer is also required to prepare a statement showing the mistakes discovered and the nature of existing disputes about these. After that, the Assistant Consolidation Officer has to make a report to the Settlement Officer, under Section 8 of the Act, who may hold an enquiry and direct corrections to be made.

There is a provision for a further Partal by the Assistant Consolidation Officer before making a correction in the Annual Register and there is an appeal to the Consolidation Officer from the decision made by the Assistant Consolidation Officer. The decision of the Consolidation Officer is 'final' under Section 8(4) of the Act 'except' as otherwise provided by or under this Act. It appears that this stage is only concerned with the preliminary survey and the result of the Partal, which was to be carried out by the Assistant Consolidation Officer under the Act. This survey could not finally determine questions of right or title. The decision of the Consolidation Officer was apparently only final as regards the entries made in the annual registers after the survey and not on other matters concerning the rights of tenure-holders with which Section 11(1) deals. These entries would raise rebuttable presumptions of correctness, but they could not conclude matters of right or title evidenced by them.

11. The second half of the process covered by the 'Revision and Correction of Maps and Records' takes place under Sections 11 and 12 of the Act. Here we find that the Assistant Consolidation Officer has to prepare statements of plots and tenure-holders showing not only the area, the nature of the soil, the revenue or rent, the hereditary sanctioned rates of rent, the rental value, but also the character of the rights enjoyed by each tenure-holder. Section 12(1) expressly enables and obliges any person who disputes the correctness or nature of an entry in the statement of plots and tenure-holders to put forward his objections. It requires the Assistant Consolidation Officer to hear the views of Land Management Committee. Section 12(3) makes a decision of the Consolidation Officer upon a contest 'final except as otherwise provided by or under this Act.'

It is important to note here that what is expressly made final is a decision upon a contest and nothing else. An appeal under Rule 34 has been held by this Court to be validly provided under the Act. There is also a provision for reference of questions of title for decision by the arbitrator whose decision is to be 'final' under Section 12(4) of the Act. We also find that Section 12(5) provides that 'all suits or proceedings in the court of first instance, or appeal in which a question of title in relation to the same has been raised shall be stayed.' The term 'Court' could not have been used for the Consolidation Officer. It has been evidently used for other authorities before which questions of title relating to the 'same' land has been raised. Such authorities could only be those operating outside the Act.

12. The next or second part of the consolidation proceedings consists of 'Preparation of Consolidation Scheme' dealt with in Chapter 3 of the Act. Here, we find a provision, in Section 14 (1), for the 'Statement of Principles' which has to contain the broad outlines of the lay out of the villages and the proposed re-arrangement. The particulars which have to be shown here relate to the provisions for common paths, pastures, fisheries, manure pits, khalihans, cremation grounds, grave yards, abadi areas, and works of public utility and other common uses. It has to be noted that the matters dealt with here are very distinctly different from those to be mentioned in the statements of plots and tenure-holders under Section 11(1) of the Act. These questions do, however, affect tenure-holders individually and as a whole. The tenure-holders are also affected by the proposed scheme of allocations of land for various purposes and by proposed formations of blocks. The 'statement of principles' under Section 14, prepared after keeping in view the principles laid down in Section 15 of the Act, is published under Section 16(1) of the Act. Persons 'likely to be affected by the Scheme' of redistribution and allocation of land for various purposes were permitted to object. The Consolidation Officer had to decide the objections subject to an appeal before the Settlement Officer whose decision was 'final' under Section 17(1) of the Act 'except as otherwise provided by or under this Act.' The Settlement Officer (Consolidation) was authorised to make a local inspection before giving his decision and also to hear the Land Management Committee which was to be informed. At the conclusion of this stage, the 'Statement of Principles', as confirmed and published, was declared 'final' under Section 18 of the Act. It should be noted that the rights of tenure-holders in land are not as such, declared 'final' here, but the allocations of land for various purposes under the scheme are finalised at this stage.

13. The second phase of the 'Preparation of the Consolidation Scheme' was then to commence by means of a 'statement of proposals' prepared under Section 19(1) of the Act. An examination of the particulars prescribed by Section 19 for the statement of proposals shows that it is meant to give combined results of proceedings under Sections 11 and 14(1) of the Act after the objections at the earlier stages have been disposed of. In fact, the statement of proposals under Section 19(1) has to take place in accordance with the statement of principles as confirmed and published 'under Section 18 of the Act.' In addition, at this stage, reasons have to be given in support of the proposed allotments to tenure-holders. Certain additional matters, such as compensation for trees, wells, buildings, or, other improvements are to be mentioned in the statement of proposals.

The statement of proposals is also to be preceded by consultation with the Land Management Committee, and, in case of a difference between the Assistant Consolidation Officer and the Land Management Committee, the decision of the Settlement Officer on the question on which there is a difference is declared 'final' under Section 19(5) of the Act. The statement of proposals is then published under Section 20 Sub-section (1). The Assistant Consolidation Officer may, 'if necessary, hear parties,' under Section 21 (1) of the Act, on objections made under Section 20 (1) by 'any person likely to be affected by the proposals'. The officer then reports to the Consolidation Officer who disposes of the objections after hearing parties and their evidence. There is an appeal to the Settlement Officer (Consolidation) under Section 21(2). The appellate order of the Settlement Officer (Consolidation) is final 'except as otherwise provided by or under this Act.' The Consolidation Officer and the Settlement Officer (Consolidation) have, before deciding cases under Section 21, to make local inspections after giving due notice to the parties and the Land Management Committee.

14. We also find that there is a provision, in Section 22 Sub-section (1) of the Act, for reference of questions of title to an arbitrator by the Consolidation Officer. It is in this connection that it was provided, in Section 22(2), as it was originally worded, that 'all suits and proceedings in the Court of the first instance or in appeal in which a question of title in relation to the same land has been raised shall be stayed. 'It is clear that here the 'suits and proceedings' mentioned are those which were pending in 'courts' and which raise questions which could be referred to the arbitrator. There is no provision at all for an automatic stay of any proceedings before the Consolidation Officer or the Settlement Officer (Consolidation) or the Director of Consolidation. The consolidation authorities are not defined or described at all as 'Courts' anywhere in the Act although the word 'court' is repeatedly used when referring to stay of suits and proceedings relating to title. The context in which Section 22 (2) occurs is precisely similar to the context in which the similar provision in Section 12(5) occurs. Each of these provisions is followed by the provision that 'the decision of the arbitrator shall be final.' The mere fact that later on questions or sirdari, adhivasi, and asami rights were added after questions of title here, by an amendment, would not alter the context in which the word 'court' is used here. The functions of the consolidation authorities, when adjudicating upon rights of individuals, are akin to those of courts. But, they combine the roles of administrators with those of adjudicators in participating in the process of consolidation. Even Section 38 of the Act gives these authorities only specified powers of Civil Courts and does not equate them with courts for all purposes. Therefore, I respectfully prefer the interpretation given to the term 'court', as used in Section 22(2) of the Act, by Gupta, J. in the Division Bench case of Ram Bharosey Lal v. Deputy Director of Consolidation, 1964 RD 411 to that adopted by Srivastava, J. in Ganga Singh v. Deputy Director of Consolidation, 1962 RD 107.

15. Section 23 of the Act provides for the publication and confirmation of the statement of proposals which is declared 'final except in so far as it relates to land which is the subject matter of references made to the Civil Judge and which have not been disposed of till then. 'This section is important for deciding the question before us. It demonstrates that the statement of proposals', which also contains particulars specified in Section 11(1) of the Act, is not 'final' until this stage is passed,

16. The third and the last stage of process of consolidation covers the enforcement of the scheme dealt with in Chapter 4 of the Act. This part provides for the handing over of possession of plots allotted to the tenure-holders and preparation of the new revenue records under Section 27, Sub-section (1) of the Act. The entries in the new records of rights, prepared under Sub-section (1) of Section 27 are declared to be 'final and conclusive'. At this stage, there is provision in Section 34(1) of the Act for objections by persons aggrieved only by orders passed on certain matters arising out of compensation for crops (Section 29), transfer of encumbrances (Section 31), and award of costs (Section 33). These objections are to be disposed of by the Consolidation Officer under Section 35 of the Act. But, even at this stage, there is a provision in Section 36, Sub-section (1) of the Act that 'where the objection filed under Section 34 involves a question of title in land and such question has not already been finally determined by a competent Court, the Consolidation Officer shall refer it for determination to the Civil Judge having jurisdiction who shall thereupon refer it to the arbitrator.' The decision of the arbitrator is again declared to be final. Section 36-A added by the U. P. Act 16 of 1957 clarifies that if a question arise in any proceeding under the Act whether a person possessed the rights of a Sirdar, Adhivasi, or Asami on any particular land at any particular time, such a question shall not be deemed to raise a question of title.

17. There was a provision introduced in this part, by an early amendment, which indicated very clearly that decisions on questions of rights of tenure-holders, apart from question of 'title', remained only 'provisional' until the 'statement of proposals' was confirmed under Section 23(2) of the Act. This provision, Section 26-A, which was deleted in 1958 shows the intentions of the framers of the Act, It reads as follows:--

'Notwithstanding anything contained in Sections 27 and 30, the maps and record and the tenure-holder's right to land in respect of which the statement of proposals has not become final under Sub-section (2) of Section 23 shall remain provisional'

The provision was repealed by the U. P. Act XXXVIII of 1958 perhaps because of some inconsistency with other provisions, and Section 30 of the Act was considered enough. Section 30 read as follows:--

'With effect from the date on which a tenure-holder, in pursuance of the provisions of Section 26, enters into possession of the plots allotted to him, his rights, title, interest and liabilities in his original holding shall be extinguished and he shall have the same rights, title, interest and liabilities subject to notification, if any specified in the final consolidation scheme In the plots allotted to him under Section 25.'

Section 30, which continued with slight modifications, also shows that extinguishment of old rights took place only on the acquisition of new rights under the 'final consolidation scheme.' Questions relating to nature of rights of tenure-holders in plots seem to cut across various stages and are not confined to the stage of proceedings under Section 12 of the Act. Other questions may arise at particular stages only. The reason for this difference appears obvious. Rights in particular plots are not static. They are altered with devolution, and with maturity and loss of rights during the course of the process of consolidation.

18. The general survey, made above, of the various stages of the process of consolidation show that each of the three parts of the process of consolidation is directed towards achieving a separate and distinct set of objects. In the process of attaining these objects, questions involving individual rights, sometimes of the same nature or character, may turn up in different forms and contexts or with differing catenations of fact at each stage. Therefore, provision has been made, at every stage, for safeguarding these rights by enabling all those who may have possible grievance, which they could not put forward earlier for reasons beyond their control, to object. Decisions upon these objections are at the same time declared to be final. This means that they cannot, upon the same facts, be re-agitated between the same parties. In other words, the doctrine of res judicata was obviously meant to be incorporated in the provisions of the Act whenever finality is given to a decision. I confess that I am unable to see any difficulty in recognising this position clearly. There is nothing difficult or abstruse about the doctrine of res judicata. It rests on two well recognised principles; one of public policy, contained in the Roman maxim: 'interest republicae ut sit finis litium 'i. e. 'the republic's interest require that litigation must have an end': another of justice and equity, embodied in another Roman maxim; 'nemo debet bis vexari pre una et eadem causa' i. e. no man should be vexed twice over for the same cause.' Adjudication would lose its purpose if there could be no reasonable finality to the process of obtaining it and both public and private time and resources would be wasted if the process of adjudication were unending or repeated without any justifiable object

19. It is not difficult to find the doc-trine of res judicata whenever it is sought to be embodied in statutory provisions. It is well established that Section 11 C. P. C. is only one instance of it in a very comprehensive form but even this does not exhaust it. Indeed, the doctrine is a logical corollary of the process of adjudication both judicial and quasi judicial. It has been described as 'a principle of universal jurisprudence' (See: American jurisprudence V-30 A. P. 371).

20. Our Supreme Court observed in Smt. Ujjam Bai v. State of U. P., AIR 1962 SC 1621, at p. 1630:

'The characteristic attribute of a judicial act or decision is that it binds whether it be right or wrong. An error of law or fact committed by a judicial or quasi judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. These principles govern not only the findings of inferior courts stricto sensu but also the findings of administrative bodies which are held to be acting in a judicial capacity. Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits their decisions must be accepted as valid unless set aside on appeal. Even the doctrine of res judicata has been applied to such decisions. (See Livingstone v. Westminster Corporation, 1904-2 KB 109; Re: Birkenhead Corporation, 1952 Ch. 359; Re: 56 Denton Road, Twickenham, 1953 Ch. 51; Society of Medical Officers of Health v. Hope. 1959-2 WLR 377 at pp. 391, 396, 397, 402. In Bum & Co., Calcutta v. Their Employees, 1956 SCR 781 = AIR 1957 SC 38 this court said that although the rule of res judicata as enacted by Section 11 of the Code of Civil Procedure did not in terms apply to an award made by an industrial tribunal, its underlying principle which is founded on sound public policy and is of universal application must apply. In Daryao v. State of U. P. 1961-2 SCA 591-AIR 1961 SC 1457, this court applied the doctrine of res judicata in respect of applications under Article 32 of the Constitution.'

21. It is clear that the consolidation authorities acting at each stage are performing judicial acts in deciding the rights of contesting parties. Therefore, their decisions must bind parties at each stage for the purposes of succeeding stages. In Raghubir Singh v. D.D.C., Civil Misc. Writ No. 473 of 1958 (decided on 21-9-1960) (reported in 1960 RD p. 323) Jagdish Sahai J. observed:

'It was contended on behalf of the petitioners that Section 11 of the C. P. C. in terms did not apply to proceedings under the Act. Whether or not Section 11 applies, the principles of res judicata apply.'

In that case a decision of the Board of Revenue was held to bind parties to it In Kanizan v. Ghulam Nabi, AIR 1965 All 296=1964 All LJ 1112, Sharma, J. held that a decision in proceedings under the Act was binding in other proceedings under the Act. I respectfully concur with the views expressed in both these cases.

22. It may also be observed that the Division Bench decision of this court in Rup Narain v. State, 1962 All LJ 888 contains the following observation of Desai C. J. :--

'The legislature probably enacted Section 12 (7) to give effect to the rule of constructive res judicata.'

Section 12(7) of the Act, reads as fellows :--

'12(7): A question of title in respect of any plot mentioned in the statement in Clause (c) of Sub-section (1) of Section 11, which might and ought to have been raised under Sub-section (1) but had not been raised, shall not be raised in any objection filed under Sub-section (2) of Section 20, or under Sub-section (1) of Section 34.'

It was contended that Section 12(7) of the Act shows that the doctrine of res judicata under the Act is confined to an application of the principle of constructive res judicata in cases where a question of title arises and goes no further. This argument overlooks the effect of Section 12(7) of the Act even in those cases in which there has been no objection whatsoever under Section 12 by a party so that there has been no dispute or adjudication. The rule of constructive res judicata is a logical corollary of extention of the principle of res judicata. It applies in cases where an adjudication which has taken place and enables it to be construed as one which covers matters which could or might have been raised in the course of that adjudication.

On the other hand, Section 12(7) of the Act bars the raising of a question by means of an objection under Section 20(2) or Section 34(1) even when such an adjudication did not take place but could have taken place on an objection which could and ought to have been made. In other words, the object of Section 12(7} of the Act clearly appears to be to go even beyond the doctrine of res judicata. This section, could not, in my opinion, be used to cut down the application of the doctrine of res judicata in any way whatsoever. It contains within it something more than the principles of constructive res judicata itself. Its result could be, more appropriately, described as an 'estoppel by record', inasmuch as what has taken place and is recorded and declared final cannot be questioned subsequently by a party which has already had an opportunity to object. It may be observed here that although the term 'estoppel by record', as used in English law, corresponds broadly to our res judicata, it has also a wider connotation. It has been explained as follows: An estoppel by record is the preclusion to deny the truth of matters set forth in a record whether judicial or legislative, and also to deny the facts adjudicated by a court of competent jurisdiction '(See American Jurisprudence 2nd Ed. Vol. 28 page 600; also Corpus Juris Secundum Vol. 31 page 193). It appears that the term can be used for matters formally recorded and declared final by statute where opportunity to object had been afforded to persons estopped.

23. Section 12(1) of the Act may also be now closely examined. It reads as follows:---

'(1) Every person interested to disputing the correctness or nature of an entry to the statement published under Section 11 or pointing out any omission therefrom shall within thirty days of the publication of the statement under Sub-section (2) of Section 11, file objection, if any, on the statement before the Assistant Consolidation Officer in the manner prescribed.'

24. This provision also imposes an obligation, by the use of the word 'shall', upon a person who could and might raise an objection against an entry to do so at this stage. If no objection is raised at this stage there cannot be a decision taken by the Consolidation Officer to which finality could attach under Section 12(3) of the Act. The decision of the Consolidation Officer can only be taken on objections filed on which the Assistant Consolidation Officer submits a report, 'after hearing the parties, if necessary', under Section 12(2) of the Act. Therefore, if a party has already objected but omits to take up, as a part of his objections, a question which he might and should have taken up, the doctrine of constructive res judicata could be applied against him. If, however, a party does not perform his duty to object, under Section 12(1) of the Act, so that there is no adjudication whatsoever upon an objection, which he could and should have put forward, he may still be debarred by the principle of estoppel by record from objecting at a subsequent stage because he will be deemed to be aware of the contents of the statement published under Section 11 (2) of the Act This is, as already indicated, somewhat wider and different from the principle of res judicata. Section 12 (7) seems to have been introduced as a subsequent amendment of the original Act, by way of abundant caution, to make this position clear so far as questions of title to land are concerned.

25. Does it follow, from the above mentioned provisions of Sections 11 and 12 and 14 to 23 of the Act, that objections of the nature contemplated by Section 12 are excluded entirely in all cases from the purview of objections under Section 20 (2) of the Act? The observations made by Desai C. J. in 1962 All LJ 888 certainly Indicate that the answer to this questions should be in the affirmative. It may, however, be observed that the question directly arising in that case was whether an objection could be raised for the first time under Section 20(2) of the Act against the inclusion of certain land, which had ceased to be grove-land, in the consolidation scheme notwithstanding that the statement of principles, as confirmed and published under Section 18 of the Act, showing the land to be within the scheme, had become final. It was also pointed out there, incidentally, that the objector had another previous opportunity of objecting to the inclusion of this land in the scheme with the statement of plots and tenure-holders was framed under Section 11(1) of the Act. Thus, the petitioner had neither objected under Section 12(1) nor under Section 16(2) of the Act. It is, however, significant that Desai C. J. held: 'What prevents certain matters being agitated in an objection is the confirmation and finality of the statement of principles.' The statement of facts in that case indicated that, although, the question of inclusion of the land in the consolidation scheme, as land which had lost its character of grove-land, could be viewed as having overlapped and passed through two previous stages, yet at the third stage of objections under Section 20(2), Desai C. J. apparently considered the question as finally determined and settled only at the subsequent or second stage because of the specific provision at the second stage giving finality to that type of question. If finality depends upon specific applicable provisions in the Act, it will be noticed that such provisions related either to cases where there has been an objection and an adjudication between parties, such as that provided by Section 12 (2) of the Act, or to cases where, as provided by Sections 12(7) and Section 18 read with Section 16(2) aggrieved persons have had opportunities to object but have allowed them to slip without objection. They did not go beyond such cases. In other words, all the bars of finality found in the Act can be corelated to and covered by either the principles of res judicata or of estoppel by record and do not go further.

26. It was not absolutely necessary to go beyond applying the principle of estoppel by record, contained in Section 18 of the Act, for deciding 1962 All LJ 888 Desai C. J., however, did proceed further to determine the scope of objections under Section 20(2) of the Act also. In doing so, he referred, as it was perhaps inevitable, to the scheme of the Act and recorded, as follows (at P. 893) the disagreement of the Division Bench with the view expressed by Srivastava J. in 1962 RD 107: 'With great respect we do not agree that Section 20(2) is not confined to new matters included in the statement of proposals or that an objection can be filed against an entry in a statement of proposals even though there existed previously a right to object to such an entry contained in another statement prepared earlier. The words 'any person' are wide enough, but there width is controlled by the scope of the objection permitted under Section 20(2). If the objection is of the nature contemplated by Sub-section (2) it can be raised by 'any person'.'

The reasoning adopted by the Division Bench was: (p. 892)

'If a consolidation scheme has reached the state of preparation of statement of proposals and a tenure-holder has still a right to object to any entry in the records or in the statement of principles, it would mean upsetting everything that was done previously and undertaking revision of these documents on a large scale and again there would be no finality.'

It was also observed there: (p. 892).

'Every provision allowing an opportunity to file an objection after an earlier provision confirming and making final something must mean that the former provision relates to an objection in respect of a matter not confirmed and made final. In other words. Section 20(2) allows a tenure-holder to file an objection against anything contained in the statement of proposals which has not been confirmed or made final under any of the provisions, such as Section 18.'

It was also held there (at p. 891):

'The proposals referred to in Section 20(2) by which a person should be affected in order that he has a right to file an objection are the new proposals contained for the first time in the statement of proposals. They are the proposals mentioned in Section 19(1)(b)(c)(d)(f) and (g). Neither are the particulars specified in Clause (a) proposals though they are required to be recorded in the statement of proposals, nor are the areas earmarked for public purposes. The words 'likely to be affected' in Section 20(2) are highly significant; a person already affected by something done previously, (such as the inclusion in the consolidation scheme of his land exempt from consolidation) cannot be said to be a person likely to be affected in future.

Here the appellant was already affected by the confirmation and the finality of the statements of plots and tenure-holders and of principles which recorded the fact that the grove in dispute was included in the consolidation scheme and was reserved for public purposes. He was, therefore, not a person contemplated by Section 20 (2).'

27. The line of reasoning underlying the above mentioned quotations certainly is that the proposals which a person has had an opportunity of questioning earlier could not be questioned by him after they had attained finality declared by statute. If, however, going further, the scope of objections under Section 20 (2) is also limited, in the manner indicated above, serious legal and practical difficulties must arise in protecting the rights and titles of persons in land in the course of the consolidation which the Act obviously was designed to do. It cannot be overlooked that Section 49 of the Act bars the institution of any suit or other proceedings in any civil court 'with respect to any matter arising out of consolidation proceedings' and 'in respect to any other matter in regard to which a suit or application could be filed under the provisions of this Act.' Hence, the object of the repealed provisions in the Act for decisions on questions of right and title in land apparently was to enable decisions of any new questions which may arise between two stages of the process of consolidation. These new questions cannot, in my opinion, be restricted to what is new in the proposals contained in statement of proposals under Section 19(1) of the Act. They may also arise as a result of fresh facts which may make the contents of statements of proposals incorrect so far as the rights of tenure holders are concerned by the time the stage of objections under Section 20(2) is reached although they were correct, or could be deemed to be correct, at the time of proceedings under Section 12 of the Act. Section 22(1) shows that an objection under Section 20(2) may raise a question of title in or over land which had not already been finally determined. This provision also indicates that there may be questions of title left over for the stage of objections under Section 20(1) which fall even outside the wide scope of Section 12(7) of the Act. It appears to me that the scheme of the Act was not only to enable the consolidation operations to progress rapidly and efficiently from stage to stage but also to enable consolidation authorities, instead of ordinary courts, to decide new questions of right and title of individuals in land as the consolidation scheme progresses from stage to stage. The scheme of the Act is to preserve and not to destroy substantive and remedial rights during the process of consolidation so far as it is reasonably possible to do so.

28. I may illustrate the kind of difficulties which may arise by reference to what has been decided by a Division Bench, consisting of Desai C. J., and Manchanda, J. in Garala Dhwaj v. Bhadeshwar, 1966 All LJ 162. Here it was held that the commencement of consolidation proceedings cannot ipso facto prevent the accrual of rights under Section 210 of the U. P. Zamindari Abolition and Land Reforms Act. This view has also been taken by G. C. Mathur, J. in Ahsan Ali v. Deputy Director of Consolidation, 1965 All LJ 1161 and by other learned Judges and by me in connected Miscellaneous Writ Nos. 610 and 611 of 1963, Hanuman Rai v. Deputy Director of Consolidation, decided on 7th July 1967 (All). It follows that rights in land arising by the application of Section 210 U. P. 2. A. & L. R. Act may, in some cases, mature in the course of consolidation proceedings. They may not be ripe for assertion at the stage of objections under Section 12(1), but may be capable of being asserted at the stage of objections under Section 20(2) of the Act.

Again, a person may be, so far as the record of consolidation proceedings in a village is concerned, apparently 'affected' by what has taken place in proceedings under Section 12 of the Act. But, he may not, in the eye of law, be really affected by such proceedings inasmuch as he was a minor or a lunatic or a victim of fraud at the stage of proceedings under Section 12 of the Act. The disability of such a person may have been removed by the time the stage of objections under Section 20(2) is reached. I confess that I am not able to find any provision in the Act which could bring even such persons suffering from some legal incapacity, within the class of persons already 'affected' irreparably by what has already taken place in proceedings under Section 12 of the Act. But, such persons would fall within the category of person 'likely to be affected.' If they did not object under Section 20(2) in spite of removal of their disabilities before that stage their rights may vanish. They would not be able to object at all if the stage for objections of this nature were held to have passed for ever without the possibility of any return or recurrence.

29. It, therefore, appears to me that the interpretation put upon the scope of the right to object under Section 20(2) in 1962 All LJ 888 is too narrow. It is true that the word 'proposals' as used in Section 20(2) can be interpreted, if it was absolutely necessary to do this, so as to confine the proposals to what is contained in Section 19(1) (b), (c). (d), (f) and (g) as held by Desai, C. J. in Rup Narain's case (supra). But, the objections permitted by Section 20(2) appear to be all those which are possible legally against anything contained in the statement of proposals mentioned in Section 20(1) which immediately precedes Section 20(2). It may be noticed that the statement of proposals as defined in Section 19(1) includes the particulars specified in Section 11(1). The term 'proposals' has not been defined separately from 'the statement of proposals' in the Act. Broadly, everything remains 'a proposal' until the scheme is finalised. And, the actual effect is only produced when possession is taken under the last part of the process. The legal effect of whatever has happened during the process is given i the specific provisions of the Act for it. What actually happens at a stage does not necessarily have an unalterable legal effect I have given other reasons also earlier in support of this view when dealing with other provisions. Therefore, speaking for myself and with great respect, I prefer the view expressed by Srivastava, J. in 1962 RD 107 on the scope of objections under Section 20(2) when he observed:

'There is nothing in this sub-section to show that the objections must be confined only to some particular matters or that the objection cannot raise the same point which has already been raised under Section 12 but in respect of which the decision had not become final.'

30. The above mentioned statement of the scope of Section 20(2) by Srivastava, J. does not conflict with the view that the objector, although not barred by Section 20(2) from raising a question of right and title, may yet be prevented from obtaining a fresh adjudication on his objection as he may be barred by the doctrine of res judicata or by an estoppel by record. But, as I have already indicated, I do not, with great respect, endorse the view taken by Srivastava, J. in Ganga Singh's case (supra), that proceedings under Section 12 of the Act which have not reached finality must necessarily and automatically be stayed by applying Section 22(2) of the Act. Even if convenience and need for speedy decision were to operate as guiding factors at the stage of objections under Section 20(2), I do not see why the consolidation authorities cannot stay the proceedings under Section 21 and await final decisions which should be speeded up in proceedings under Section 12 of the Act in those cases in which proceedings under Section 12 have not reached finality. It certainly seems to be contemplated by the legislature that proceedings under Section 12 of the Act will be ordinarily completed before the next stage is taken up. Obvious complications and difficulties arise when this is not done.

31. The language of Section 20(2) shows that the scope of objections which 'may' (converted into 'shall' in 1957) be taken under it is wider than that of objections to entries which 'shall' be taken under Section 12 (1) by a person who can question them. Nevertheless, a person not objecting at all under Section 12 (1), without showing exceptional facts and circumstances preventing him from doing so, will be faced with an estoppel by record when objecting to the same en-tries under Section 20(2) on the same facts. Again, a person who has already objected under Section 12(1), when a final decision on his objection has not been taken, should, in these exceptional circumstances, object to the same allegedly wrong entries again under Section 20(2). But, in such a case, the objector has no right to get a re-adjudication or redetermination on the same facts. The objection he could properly take under Section 20(2), in such a case, will be that, although he has already objected under Section 12(1), there has been no final adjudication. Such an objector should ask, under Section 20(2) for a rectification of the entry in accordance with the final decision on his objection under Section 12(1), so as to present finalisation of the Statement of proposals under Section 23 of the Act The purpose of the objection at each of the two stages will be to secure the correction of wrong entries. In this sense, Section 20(2) is another provision where an objection to an entry affecting the right of a tenure-holder may be taken. But the view that proceedings under Sections 20 and 21 of the Act must replace all proceedings under Section 12, which have not reached finality, so that there is re-adjudication or duplication in proceedings under Sections 20 and 21, rests upon an erroneous interpretation of Section 22(2). Section 22(2) was not meant for stay of or wiping off of previous proceedings before the consolidation authorities.

31a. I may now deal with the Division Bench decision in Ganga Singh v. Deputy Director, Consolidation, 1965 RD 12 where Bhargava, J. giving the judgment of the Division Bench, dismissed a special appeal from the above mentioned judgment of Srivastava, J. The first ground of the short decision given by the Division Bench was that the statement of proposals having been confirmed under Section 23 of the Act had attained finality. Therefore, the Court would not issue a writ which was ineffective. It appears to me that this ground of decision proceeds upon an application of the doctrine of estoppel by record contained in Section 23 of the Act. Desai C. J., also applied this principle in Rup Narain's case, 1962 All LJ 888 (supra) to finalisation under Section 18 of the Act. The facts of Ganga Singh's case, as detailed in the judgment of Srivastava, J., (1962 RD 107) Indicated that the petitioner had neither filed a revision under Section 48 nor come to this Court for a writ of prohibition to challenge the jurisdiction of the consolidation authorities to proceed with a re-adjudication under Section 21 of the Act And, a re-adjudication under Section 21 of the Act had actually taken place so that the question of sirdari rights was determined afresh in favour of the respondent who had raised this question again under Section 20 of the Act. It was not even clear whether this re-adjudication was on the same facts as those which existed at the time of the adjudication under Section 12 of the Act which had not become final. On the other hand, the statement of proposals had become final under Section 23 of the Act. On these special facts, the refusal of this Court to interfere on the first ground mentioned above, under the law as it then stood, could not be held to be erroneous.

The second point decided was that the filing of an objection under Section 20(2) of the Act cannot be barred on the ground that a 'similar' objection -- i. e. perhaps not identical -- had been filed under Section 12. It is true that it was noticed that the objection had been dismissed. But, that dismissal had not, as observed by the Division Bench, attained finality because an appeal was pending from it. This proposition also appears to be unquestionable inasmuch as the filing of an appeal is a continuation of the original proceedings. The assumption underlying the proposition is that the principle of res judicata applied to proceedings under the Act. There appears to me to be no inconsistency in holding that an individual's right to file an objection Is not barred by a provision while, at the same time, taking the view that the trial of the question raised by the objection may be barred by res judicata. Indeed, this appears to me to be the strictly correct way of stating the position. The principle of res judicata bars retrial and decision once again of what is concluded but not merely the 'raising' of a question. 'Raising' does not include trial and decision, the next stages which will be barred where there is a previous adjudication on the same facts. With great respect. I may observe that I too am unable to see that the mere filing of an objection under Section 12 of the Act or the pendency of that objection bars even the raising of a 'similar' objection under Section 20 of the Act before the objection under Section 12 of the Act has been finally decided. Even if the bar of res judicata could be spoken of as a bar to the very raising of an objection itself, as distinguished from its trial, the bar could not come into existence before the proceedings under Section 12 of the Act had reached finality. The third ground upon which the Division Bench decision was based was that even if the proceedings under Section 21 of the Act were without jurisdiction, this Court will not interfere in exercise of its jurisdiction under Article 226 of the Constitution as there was no injustice shown to have been perpetrated. The correctness of this ground of decision is not assailed before us. I am, therefore, clearly of opinion that there is no need whatsoever to overrule this Division Bench decision which does not lay any law incorrectly.

32. I may mention that I am not able to accept the proposition that the Division Bench, in its decision in 1965 R. D. 12, must be assumed to adopt, by implication, all the reasoning and the points decided in the judgment of Srivastava, J., in 1962 RD 107. A judgment given on an appeal can confirm the conclusion arrived at in the judgment appealed against without adopting all the reasons of the judgment appealed from. The ratio decidendi of the two judgments has to be determined separately. As Prof. Arthur L. Goodhart put it, in an article on 'Determining the Ratio Decidendi of a Case, in Jurisprudence in Action' (1953) (Legal Essays collected by the Association of the Bar of City of New York); 'The principle of the case is found by taking account of the facts treated by the judge as material and his decision as based on them' it is only the facts which the Division Bench considered as material which could enter into a consideration of the principles laid down by it.

33. The view taken by our learned brother Nigam, J., in Sheoraj Singh v. Deputy Director. Consolidation, 1967 RD 1, was also placed before us. Here, it was held, relying on the above mentioned Division Bench decision in 1965 R. D. 12, that a person who had objected under Section 12 of the Act but had failed to get a final decision and then neglects to file an objection at the stage of Section 20, will lose all advantage that might be secured to him by any proceeding or continuation of any proceeding under Sections 9 to 12 of the U. P. Consolidation of Holdings Act.'

In this case, which is apparently governed by the Act as it stood before 1958, the statement of proposals had been confirmed under Section 23 of the Act without objections under Section 20(2). If a tenure-holder's objection under Section 12 of the Act has not been finally decided, he should certainly point that put when a statement of proposals containing wrong entries is published under Section 20(1) of the Act He should not wait until the final decision upon his objections under Section 12, and then come to this Court for the correction of an error which he did not question at the proper stage. In such a case, an objection under Section 20(2) of the Act would not have been barred by the principles of res judicata. Even if a person has objected under Section 12 and that objection has been decided in his favour, but the statement of proposals published under Section 20(1) contains an entry which is contrary to the decision arrived at in proceedings under Section 12 of the Act, he should point out this error under Section 20 (2) which does not bar such an objection. However, if he has already objected to the entry under Section 12 and the objection is decided in his favour after confirmation of the proposals, he could still get the error rectified under Section 38(2) of Act, which could be used, in such a case, to prevent loss of the lights of a successful objector under Section 12 of the Act. Indeed, Section 38(2), which was there until 1958, seemed to cast a duty upon the consolidation authorities to rectify such an error suo motu.

It will be observed that Nigam, J., also held here that the confirmation of proposals under Section 23 would not have prejudiced or affected the petitioner's case if he could have filed a revision application under Section 48 against some order passed under Section 21. This means that failure to object under Section 20 (2) and to secure an order upon the objection before finalisation of proposals under Section 23 must result in the loss of even a fresh or additional right to invoke interference under Section 48 which may really arise only after finalisation of proposals under Section 23. The normal and regular course of consolidation, contemplated by the legislature, is that proceeding under Section 20 should commence after all proceedings under Section 12 have reached finality. If, for some reason, they commence before that, the objector could not complain of prejudice or substantiality of the irregularity for him if he ultimately fails in his objection under Section 12 (sic). But, the position would be different if he actually succeeds under Section 12 even after finalisation of proposals under Section 23. In such a case, he secures an additional or fresh right to complain which did not exist before. Moreover, powers under Section 48 do not depend for their exercise upon objections taken under Section 20 (2) or orders passed under Section 21 or any other section. They can be exercised by the Director suo motu and are expressly made wide enough to cover cases of orders passed as well as proceedings taken. Finalisation under Section 23 is a 'proceedings taken.' It is, therefore, expressly subjected to possible interference under Section 48 provided other conditions are satisfied. It is not one of the conditions precedent to interference under Section 48 that some order must have been previously passed upon an objection made through a prescribed channel. The limitation of powers of interference under Section 48 with orders of Deputy Directors came only in 1958. Therefore, such a view seems to go too far and must, with great respect, be overruled. In Bansidhar v. Deputy Director, Consolidation, 1967 RD 51, Nigam, J., did not go beyond what was laid down in 1967 RD 1. Therefore, this case need not be separately considered.

34. The only question on which there could be said to be a conflict between the ratio decidendi of the Division Bench in 1962 All LJ 888 and that of the Division Bench in 1965 RD 12 relates to the scope of objections under Section 20(2) of the Act. I think the case before us is distinguished, on facts from both the cases mentioned above. Although, I prefer the ratio decidendi of 1965 RD 12 on this limited point, yet, I think that the petitioner before us is not entitled to any relief on the facts of his case. The petitioner had only a technical right to file an objection under Section 20(2) of the Act. He was not able to show any fresh facts between the earlier and the later stage. The petitioner has also not been able to show why the bar of finality imposed by Rule 34(3) of the Rules made under the Act should not have been applied against him by the Consolidation Officer and the Settlement Officer when they dismissed his objections under Section 20(2) of the Act. It is true that, having filed the revision application under Section 48 of the Act against the decision in proceedings under Section 12 of the Act, the petitioner could, theoretically, have asked the consolidation authorities to await the decision on his earlier revision application before rejecting his objection under Section 20(2). It, however, seems to me that an objection under Section 20(2) can be rejected on the ground that the same matter has already been raised and decided finally under Section 12 and no new facts are disclosed. The petitioner never objected under Section 20 (2) that a final decision on his revision application against proceedings under Section 12 should be awaited.

Moreover, a presumably final decision was already there in this case. An appeal filed as of right could certainly postpone finality attached to an order passed by the Consolidation Officer under Section 12 of the Act, but the mere filing of a revision application does not, either on general principles or on the language of the provisions of the Act or of rules framed thereunder, by itself remove the bar of finality imposed by Rule 34(3) until the revision application is allowed. On the view taken by me, the petitioner could have obtained a fresh or additional right if his first revision application were actually allowed. The petitioner has not disclosed any possible ground upon which his revision application under Section 48 against the decision in proceedings under Section 12 of the Act could be allowed so as to remove the bar. The earlier decision under Section 12 was not assailed as void. No want of jurisdiction in giving that decision was even alleged. In fact, the revision application filed by the petitioner against decision in proceedings under Section 12 of the Act was actually dismissed before he came to this Court. No injustice was shown to have been suffered by the petitioner. Even though his right to object under Section 20(2) technically survived, his right to obtain readjudication on the same facts was not shown to survive after the decision under Section 12 of the Act The petition before us is liable to be dismissed, on the facts of the case, by applying one of the grounds of the Division Bench decision in Ganga Singh's case, 1965 RD 12 (supra) itself.

35. For the reasons given above, I would dismiss this petition with costs.

Asthana, J.

36. This case has been referred to a Full Bench for resolving the apparent conflict between the two Division Bench decisions of this court, namely 1965 RD 12 and 1962 All LJ 888. There is yet another Division Bench decision in the case 1964 RD 411 which also requires to be reconciled with the aforementioned decisions.

37. The petition under Article 226 of the Constitution which has given rise to the above reference was filed by Sita, Naumi and Kumar as petitioners against the State of Uttar Pradesh, the Deputy Director of Consolidation, the Settlement Officer (Consolidation), the Consolidation Officer and one Surajbhan Rai. The validity of the orders passed by the above mentioned Consolidation authorities in the proceedings arising out of an objection filed by the petitioners under Section 20 of the U. P. Consolidation of Holdings Act as unamended before 1958 (hereinafter called the Act) were questioned in the petition and a writ in the nature of certiorari was sought for quashing of the orders of the said Consolidation authorities and for other necessary directions. By the impugned orders the claim of the petitioners to be recorded as Sirdars of two plots numbers 1011 and 1119 stood rejected and the name of Surajbhan Rai was recorded as Bhumidhar of the said plots.

The consolidation proceedings commenced in the village in which the plots in dispute were situate in the year 1955. In the statement of tenure holders published under Section 11 of the Act in C. H. Form No. 20, the name of the petitioners was shown as Sirdars of plot No. 1191 but their name did not appear and Surajbhan Rai's name appeared as against plot No. 1011. The petitioner thereupon filed an objection under Section 12 of the Act claiming to be Sirdars of plot No. 1011 and prayed for recording of their names after expunging the name of Surajbhan Rai who was shown as the Bhumidhar of that plot. In his turn Surajbhan Rai filed an objection under Section 12 of the Act in respect of plot No. 1119 and prayed that his name be entered as Bhumidhar against that plot after expunging the names of the petitioners. The Consolidation Officer consolidated the two objections and heard them together. By his order dated 13-2-1960 the Consolidation Officer rejected the objection of the petitioners and allowed the objection of Surajbhan Rai with the result that the entries were directed to be corrected by entering the name of Surajbhan Rai as Bhumidhar of both the disputed plots. The petitioners thereupon filed two appeals both of which were dismissed by one judgment by the Settlement Officer on 29-11-1960. The petitioner then went up in revision under Section 48 of the Act against the order of dismissal of the appeals.

While this revision was pending before the Deputy Director the Statement of proposals under Section 19 of the Act was published and CH Form 24 was distributed showing the name of Surajbhan Rai as the Bhumidhar of the two disputed plots. The petitioners thereupon filed an objection under Section 20 of the Act claiming to be the Sirdars of the said plots and prayed for the correction of the entries in CH Form 24 by entering their names as Sirdars after expunging the wrong entry in favour of Surajbhan Rai. The Consolidation Officer by his order dated 24-2-1961 rejected the objection of the petitioner filed under Section 20 of the Act. The Consolidation Officer did not think it proper to record any findings and pass any order on merits as he took the view that the petitioners had already lost their case in the proceedings arising out of objections filed under Section 12 of the Act. An appeal by the petitioners from this order of the Consolidation Officer was dismissed by the Settlement Officer by his order dated 18-3-1961 on the view that the same dispute between the parties stood decided in the proceedings under Section 12 of the Act. The petitioners then went up in revision against the appellate order dated 18-3-1961. The Deputy Director decided this revision along with the earlier revision arising out of proceedings under Section 12 of the Act which was pending and dismissed both the revisions by his order dated 8-8-1961 holding that there did not appear to be any substantial irregularity or illegality in the orders passed by the subordinate authorities.

38. When the petition was heard by one of us sitting singly, it was urged on behalf of the petitioners that the proceedings arising out of objections filed under Section 12 of the Act not having become final as the revision was pending before the Deputy Director when the statement of proposals were published under Section 19 of the Act and CH Form No. 24 distributed, the petitioners were within their right to file objections under Section 20 of the Act for correction of the entries in respect of the two disputed plots and the Consolidation authorities in rejecting the objections of the petitioner on the ground that it was incompetent manifestly erred in exercise of their jurisdiction. Reliance was placed by the learned counsel for the petitioners on the case of 1965 RD 12 in which it was held that there was no provision in the U. P. Consolidation of Holdings Act barring the filing of objection under Section 20 simply on the ground that an objection had already been filed under Section 12 and heard. It was submitted that since the decision given by the Consolidation Officer under Section 12 had not attained finality because of the pendency of the revision, the objection under Section 20 of the Act would be competently decided by the appropriate authorities. On behalf of the contesting opposite party, Surajbhan Rai, reliance was placed on the case of 1962 All LJ 888 in which it was held that objections which could be raised at the stage of Section 12 before the Consolidation Officer were not contemplated to be raised under Section 20 of the Act.

39. Sri Sripat Narain Singh, learned counsel for the petitioners, contended that under Section 20 of the Act any person affected by the proposals is entitled to file an objection in writing and since under Section 19(1)(a) the particulars specified in Clause (b) of Sub-section (1) of Section 11 in respect of each tenure-holder are required to be shown and since the proposal published did not contain the correct particulars about the two plots in dispute and wrongly showed the name of Surajbhan Rai as the Bhumidhar and not the name of the petitioners as Sirdar which would have been correct, the petitioners were directly affected by the said proposals so published and their objection ought to have been considered by the Consolidation authorities. It was submitted if the same mistake in respect of the particulars of the tenure holder which occurred in the statement published under Section 11 continues in the statement of proposals published under Section 19, it becomes the duty of the consolidation authorities to correct the mistake on objections being filed when no final decision has been taken by the consolidation authorities in respect of the objections of the same nature filed under Section 12 of the Act. Learned counsel relied upon Sub-section (2) of Section 22 of the Act and pointed out that upon the publication of the statement of proposals, all proceedings pending before the Consolidation authorities whether in the first instance, in appeal, in reference or revision in which question of Bhumidhari, Sirdari, Adhivasi or Asami right is involved in relation to the land which is included in the statement of proposal, shall be stayed and submitted that that clearly indicated that the previous proceedings under Section 12 of the Act involving questions of Bhumidhari or Sirdari rights would no longer be adjudicated as similar questions could competently be raised in objections under Section 20 of the Act for adjudication. This argument of the learned counsel implies that the word 'Court' in Sub-section (2) of Section 22 includes Consolidation Officer, Settlement Officer (Consolidation), and Deputy Director or Director of Consolidation. In the case of 1964 RD 411, a Division Bench has held that the word 'court' in Sub-section (2) of Section 22 did not include the aforementioned authorities. Learned counsel tried to persuade us that Ram Bharosey Lal's case has been wrongly decided and needed re-consideration. All the arguments which were considered by the Bench in the case of Ram Bharosey Lal, were reiterated before us. The learned counsel did not advance any new argument. Having given careful consideration to the submissions made before us we think no such compelling circumstance has been pointed out which will throw any doubt on the correctness of the decision in Ram Bharosey Lal's case, 1964 RD 411. We do not agree, therefore, with the learned counsel for the petitioner that the provisions of the Act contemplated an end to the proceedings under Section 12 of the Act whether before the Consolidation Officer or pending in appeal or revision in which the questions of Bhumidhari, Sirdari, right are involved in respect of land under consolidation and the intendment of the Act was that the same objection could again be raised under Section 20 of the Act

40. There is yet another difficulty in accepting this line of argument. If what Sri S. N. Singh argues were to be accepted then an intention to the legislature must be attributed that the same kind of proceedings before the class of Officers will have to be undergone once over again. The same evidence will again have to be assessed and the same issues will have again to be determined by the original authority, or by the appellate authority, or by the revisional authority as the case may be. Unless the language of the statute is expressly clear and definite it is difficult to accept that the law contemplated a repetition of the same proceedings. It was tried to be suggested on behalf of the petitioners that there will be no practical difficulty inasmuch as it will always be open to the authorities to apply the doctrine of res judicata and decide the objection in terms of the previous decision. This argument is fallacious. Firstly, the doctrine of res judicata pertains to the jurisdiction of a court and what has been decided between the parties in an earlier litigation is barred from being raised in a subsequent litigation. That is to say, a court cannot allow a question to be raised which has already been adjudicated upon between the parties in an earlier case. In other words, law makes it incompetent for any Court to entertain such a question. If the subsequent objection filed under Section 20 of the Act raises the same questions which had already been adjudicated upon in the earlier proceedings under Section 12 of the Act then the doctrine of res judicata itself would render any objection filed under Section 20 of the Act raising similar questions as incompetent Secondly, if the proceedings in the first stage are still pending and have not been finally decided then the question of res judicata will not arise. In this connection the learned counsel referred to Sub-section (7) of Section 12 of the Act and submitted that only a question of title in respect of any plot which might and ought to have been raised but had not been raised shall not be allowed to be raised in any objection filed under Sub-section (2) of Section 20 of the Act Therefore questions involving Sirdari rights whether raised or not raised under Section 12 and question involving Bhumidhari rights which had been raised under Section 12 can always be raised under Section 20. What the learned counsel submitted was that even the doctrine of res judicata has a very limited application under the scheme of the Consolidation of Holdings Act and Sub-section (7) of Section 12 confines its applicability to a question of Bhumidhar which might and ought to have been raised under Section 12 of the Act but was not raised. We do not think that this argument in any way, even if tenable, improves the case of the petitioners. We think the learned judges who decided the case of 1962 All LJ 888 rightly observed that Sub-section (7) of Section 12 only re-stated the rule of constructive res judicata as contained in the Civil Procedure Code. We do not think the learned counsel for the petitioners can build any arguments on its basis to establish that under the scheme of the Act same questions can be raised by a tenure-holder under Section 20 of the Act in respect of land which can be raised under Section 12 of the Act in respect of the same land.

41. It was then contended that Section 12 is placed in Chapter 2 of the Act which deals with the Revision and Correction of Maps and Records, therefore Section 12 related to the correction of the records only and under the scheme of the Act the real questions of title or questions relating to Sirdari, Adhivasi and Assami rights were left to be determined under Section 21 of the Act A reference was made to Sub-section (1) of Section 22 and it was pointed out that a question of title in or over land is to be determined by raising objection under Section 20 of the Act and the Consolidation authorities are bound to entertain such objections and are under a duty to determine the same. We think the questions of title as emphasised in Sub-section (1) of Section 22 can arise on account of some thing done in laying down the principles of consolidation and in framing the proposals under Chapter 3 of the Act It does not envisage a question of title which could be competently raised under Section 12 of the Act We do not agree that merely because Section 12 has been placed in Chapter 2 whose heading is 'The Revision and Correction of Maps and Records' that any decision arrived in those proceedings is to be regarded as of a summary nature and the same question was permitted to be determined in a more elaborate manner under Section 21 of the Act. If that were the intention of the legislature then under Section 12 of the Act provision for arbitration through a Civil Court would not have been made.

It was submitted that there is no provision in the Act for appeals from a decision of the Consolidation Officer in the proceedings under Section 12 of Act, but there is a provision for appeal from a decision in proceedings under Section 21 of the Act which shows that the legislature considered the latter proceedings as determinative of the question of title or of questions involving rights to Sirdari, Adhivasi and Asami rights, hence it provided for an appeal, while proceedings under Section 12 of the Act were regarded merely as summary proceedings in the nature of mere mutation proceedings under the Land Revenue Act We think there is no warrant for such a proposition. Rule 34 of the Rules framed under Section 54 of the Act from the very inception of the Act provided for an appeal from the order of the Consolidation Officer in the proceedings under Section 12 of the Act The rules framed are as much part of the Act as any other provision enacted by the legislature Itself. Rule 34 (3) has been held to be valid by this Court. Thus this argument has not tenability.

42. It was next emphasised by Sri S. N. Singh that there is nothing in Sections 20 and 21 of the Act and for the matter of that in any other provision of the Act or the rules which bar an objection of the same nature which could be raised under Section 12 of the Act and submitted that the case of Ganga Singh, 1965 RD 12 (supra) was correctly decided. A reference was made to a decision of a learned single Judge in the case of 1967 RD 1 in which a view has been expressed to the effect that where a person after having filed an objection under Section 12 of the Act neglects to file an objection at the stage of Section 20 or the allotment of chaks he will lose all advantage that might secure to him by any proceeding or, continuation of any proceeding under Sections 9 to 12 of the Act. It would be seen that the decision in Sheoraj Singh's case, 1967 RD 1 was based on the Division Bench ruling in Ganga Singh's case, 1965 RD 12. The learned Single Judge in Sheoraj Singh's case, 1967 RD 1 did not notice the Division Bench ruling in the case of 1962 All LJ 888 (supra). Another case which was referred by Sri S. N. Singh is a decision by the learned Judge who decided the case of Sheoraj Singh, That case is 1967 R. D. 51. In Banshidhar's case the learned Judge expressed the opinion that there being no provision in the Act that orders passed in objection under Section 9 of the Act (equivalent to Section 12 of the old Act), if the objections are decided after the stage of objections under Section 20 of the Act, shall be given effect to, it, therefore, followed that if any objection under Section 9 of the Consolidation of Holdings Act was pending either before the Assistant Consolidation Officer or before any superior officer that will not affect the petitioner's liability to file an objection under Section 20 of the Act, Ganga Singh's case, 1965 RD 12 was again relied upon in Banshidhar's case, 1967 RD 51. On the basis of the ratio decidendi of these cases it was submitted that once the provisional Consolidation scheme is confirmed under Section 23(2) of the Act, the proceedings under Section 12 of the Act still pending would become infructuous. We fail to appreciate how the reasoning that once the provisional consolidation scheme is confirmed under Section 23 of the Act the proceeding under Section 12 pending on that date will be rendered infructuous helps the petitioner in establishing that the same objections which could be raised under Section 12 of the Act can be raised under Section 20 of the Act. A proceeding pending before the Consolidation Officer under Section 21 of the Act or a decision given by a Consolidation Officer in that proceeding pending in appeal or revision on the date when the provisional Consolidation scheme is confirmed under Section 23(2) of the Act would equally be affected and would be rendered infructuous. It was urged that the provisional Consolidation scheme cannot be confirmed under Section 23(2) of the Act unless all the objections filed under Section 20 of the Act have attained finality and Sub-section (1) of Section 23 was referred in this connection which provides that the Settlement Officer (Consolidation) shall confirm the statement of proposals if no objections were filed within the time specified in Section 20 or where such objections are filed, after such modification or alterations as may be necessary in view of the orders passed under Section 21. The only exception which has been made by Sub-section (2) of Section 23 is in regard to the reference made to the Civil Judge and which had not been disposed of till then. It will be seen that Section 21 of the Act envisages proceedings up to the stage of an appeal and does not cover revisions filed under Section 48 of the Act. Thus in any view of the matter if a revision were pending in a proceeding arising out of objections under Section 20 of the Act that may not stand in the way of the Settlement Officer (Consolidation) confirming the statement of proposals under Section 23(1) of the Act. (See Raghunandan v. Regional Deputy Director of Consolidation, 1966 All LJ 287). It is, therefore, not correct to say that unless all decisions filed under Section 20 of the Act attain finality the statement of proposals cannot be confirmed as in the exercise of revisional jurisdiction under Section 48 of the Act the appellate decision can be varied, modified or set aside. Any argument based on the effect of Section 23, therefore, does not necessarily establish that Section 20 permits filing of objections of similar nature which could be filed under Section 12 of the Act.

43. Sri S. N. Singh then emphasised that to avoid the inconvenience which would otherwise be caused by long delay if the Consolidation Authorities were to wait till the time when all the decisions on objections under Section 12 of the Act attain finality, before they enter upon further stages of consolidation, the legislature by enacting Section 20 and permitting objections against the proposals by affected persons clearly intended that similar objections could be filed again which were filed under Section 12 of the Act when the decisions thereon did not attain finality, the proceedings still remaining pending either in appeal or revision. In our judgment there is no substance in this submission of the learned counsel. How the delay would be avoided by permitting objections of the same nature repeatedly at different stages of consolidation is not easy to understand? In fact repeated objections of similar nature at different stages would result in further prolonging the proceedings and will cause more delay. Consolidation is a complicated and protracted operation. The legislature could not have intended that a tenure-holder should have an unlimited right to have his same rights or interests examined and re-examined at different stages. It is not possible to attribute an intention to the legislature that it expected a tenure-holder to incur expenses repeatedly for vindication of the same right before the same authorities on the same evidence in support of his claim over and over again. Such a procedure would not only be onerous and burdensome to the tenure holder but would result in waste of public time, and unnecessarily occupying the time of the officers responsible for consolidation.

44. On an examination of the material provisions of the Act it would be found that the process of Consolidation of Holding has been divided into various stages. The tenure could not be consolidated unless it were determined who were the tenure-holders of particular tenures. The first stage envisaged under scheme of the Act is a revision and correction of the village records. This is accomplished either by wholesale revision of maps or records of the village or by directing the Assistant Consolidation Officer to proceed with the correction of maps or records who after Partal corrects the entries in the annual registers. At this stage any person aggrieved may appeal to the Consolidation Officer whose decision will be final except as otherwise provided by or under the Act. After the entries have been so corrected then they are duly recorded. The next stage is the publication of statement of plots and tenure-holders on the basis of the records. Any person interested in disputing the correctness or nature of an entry in the statement of tenure-holders or pointing out any omission therefrom is entitled to file an objection. When objections have been disposed of and the statement of tenure-holders is corrected then the next stage of preparation of statement of principles is reached. The statement of principles is then prepared on the basis of the statement of plots and tenure-holders. Any person aggrieved by any mistake in the statement of principles has a right to have it corrected by filing objections. After the corrections, if any, have been made then a further stage is reached of readjustment of plots according to the principles. A statement of proposals is then drawn up which would be based on all what had preceded. Any person affected by anything in the statement of proposals, that is by re-allocation of plots according to the principles, may file objections. After the objections have been disposed of and the statement of proposals corrected and modified then they are confirmed and made final. The next stage is the transfer of possession of the allotted chaks in accordance with the confirmed statement of proposals. The last stage is the preparation of the village records and maps in accordance with the confirmed proposals. The Consolidation proceedings finally close by issue of a notification just as they commence by issue of a notification. It would be seen that it is a well-knit scheme and the operations at each subsequent stage depend upon the result of the operation carried on at the preceding stage which must become final before the next stage of operation is taken up. The scheme under the Act will be difficult of accomplishment and fulfilment if at each stage the tenure-holder or any person affected was permitted to take up controversies which could be settled or had been settled at the earlier stage. That is why it would be found that there are provisions in the Act laying down that what is done at various stages becomes final, except as otherwise provided by or under the Act.

45. When the scheme under Section 12 of the Act is examined in the light of the overall scheme of Consolidation operations as envisaged by the Act, it is not possible to contemplate that a dispute relating to the correctness or nature of an entry in the village records or supplying of any omission therein survives at the subsequent stages of the consolidation operation and can be raked up again. Section 12 is a self-contained and complete provision for determining a dispute relating to the correctness or nature of an entry or of any omission therefrom. The entries in the village records serve as the very foundation of consolidation. Section 12 contains a machinery for correcting the records after giving opportunity to the persons interested and hearing them in support of their claims so that when the next stage in consolidation operations commences the entries in the village records are no longer open to challenge and the statement of principles and the statement of proposals can be based thereon. It is to be noted that in the statement of proposals as required by Section 19 of the Act the particulars specified in Clause (b) of Sub-section (1) of Section 11 in respect of each tenure-holder have to be shown. It is presumed that it is the correct particulars in respect of each tenure-holder which would be entered in the statement. A person who claims to be tenure holder but whose name is not shown in the statement of tenure-holders as published under Section 11 of the Act must get the statement corrected and the only provision under the Act for the purpose is Section 12. If he files an objection under Section 12 and succeeds then the statement of tenure-holders would be corrected accordingly. If he does not file any objection then the statement of tenure-holders will not require any correction. When the stage comes for preparation of the statement of proposals then the particulars in respect of each tenure-holder to be shown in the statement of proposals would be based on the entries in the village records as they emerge after corrections have been made in proceedings under Section 12 of the Act. There is no provision in the Act or in the rules which prevents the correction of the statement of tenure holders in accordance with the appellate or the revisional order. Sub-section (3) of Section 12 in clear terms lays down that the decision of the Consolidation Officer shall, except as otherwise provided by or under this Act, be final. That is to say, if the Consolidation Officer's decision is not appealed against it becomes final. If, however, an appeal is taken from it, then it would be the appellate decision which would be final So also if a revision is filed against the appellate decision then it is the decision in revision which would be final. In other words, the decision of the Consolidation Officer would be super-imposed by the decision in the appeal or revision, as the case may be and it is the entry in accordance with that decision which would serve as the basis of particulars in respect of each tenure-holder contemplated under Section 19(1) (a) of the Act.

46. We have already pointed out above that the decision in Ram Bharosey Lal's case, 1964 RD 411 lays down the correct law and mere publication of the statement of tenure-holders under Section 19 pending an appeal or a revision in proceedings under Section 12 of the Act would not operate as stay of the hearing of such appeal or revision. Therefore, the appellate authority or the revisional authority as the case may be is bound to proceed with the hearing and arrive at a decision. On a correct appreciation of the scheme under the Act it appears that it was never contemplated that the stage for framing of statement of principles or for framing of statement of proposals will be reached before the statement of tenure-holders that is the village records have finally been corrected but if in practice the Consolidation authorities do not await the final decision in such appeals or revisions and proceed with the subsequent stages, then it only means that the officers are proceeding provisionally and would regularise the work of the subsequent stage finally after the decisions in the pending appeals or revisions in the earlier stage have become known and necessary corrections made. In other words the proceedings in subsequent stage remain subject to correction according to final decisions in the earlier stages. But that cannot be a circumstance to be taken into consideration to give a forced interpretation to the provisions of Section 20 of the Act and so read, it permits any person to file objections disputing the correctness or nature of an entry or pointing out any omission in the statement prepared in respect of a tenure-holder for such particulars are based on an entry which already under the law would be deemed to be correct. In any case it is always open under, Sub-section (2) of Section 38 of the Act to the Consolidation Officer or Settlement Officer (Consolidation) to correct a clerical error, or error apparent on the face of the record in any document prepared under any provision of the Act. We have no doubt that if the statement of proposals is prepared on the basis of the particulars contained in the statement of tenure-holder or village records which particulars are still to be corrected in accordance with the appellate or revisional order then once the appellate order is passed and it becomes final or a revisional order is passed which is at variance with the particulars in respect of a tenure-holder either entered in the statement of tenure-holders or entered in the statement of proposals, would clearly be a clerical error or an error apparent on the face of the record in documents prepared under the provisions of the Act and both of them can be corrected and brought in accordance with the final decision in the appeal or revision. The further proceedings in consolidation then would be in accordance with the correct statements. This can be done even though the statement of proposals achieves confirmation under Section 23(2) of the Act. The power under Sub-section (2) of Section 38 can be exercised at any time before the notification under Section 52 is issued.

47. The decision, therefore, in Ganga Singh's case, 1965 RD 12 proceeded on a wrong assumption and is hereby overruled. We respectfully agree with the ratio of the decision in the case of 1962 All LJ 888 and hold that it has been correctly decided.

48. As far as this petition is concerned, the Deputy Director has dismissed the revision arising out of the proceedings under Section 12 of the Act. Thus there was no mistake in the statement of proposals published under Section 19 of the Act.

49. This petition falls and is dismissed with costs.

B. Dayal, J.

50. I agree with brother Asthana, J.

51. By the Court -- This petition failsand is dismissed with costs.


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