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Similesh Kumar Vs. Gaon Sabha Uskar Ghaziapur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1656 of 1971
Judge
Reported inAIR1977All360
ActsUttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 198, 198(2) and 198(4); Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1970; Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1974; Uttar Pradesh Consolidation of Holdings Act, 1954 - Sections 9 and 49
AppellantSimilesh Kumar
RespondentGaon Sabha Uskar Ghaziapur and ors.
Appellant AdvocateS.K. Verma, Adv.
Respondent AdvocateN. Lal, Standing Counsel
DispositionPetition allowed
Excerpt:
property - lease - section 198 (2) of u.p. zamindari abolition and land reforms act, 1951 - allotment made by land management committee cannot be set-aside or cancelled by consolidation authorities. - - i would, however, like to make a few observations. it is well settled that in areas where the u. the material change brought about by this amendment was to confer power on the sub-divisional officer suo motu to set aside an allotment if he was satisfied that the gaon sabha had acted with substantial irregularity or otherwise in accordance with the provisions of the act. xxxvii of 1958, there have been other amendment as well, but since they are not relevant for purposes, we need not mention them. (3) the collector may of his own motion and shall on the application of any person aggrieved.....satish chandra, j.1. i have had the advantage of reading the judgment prepared by hon. k. c. agarwal, j. i entirely agree. i would, however, like to make a few observations.2. in dhulabhai v. state of madhya pradesh, air 1969 sc 78 hidayatullah, c. j., speaking for the supreme court, laid down that questions of the correctness of orders are for the decision of the authorities created by a statute, and a civil suit does not lie if the orders of the authorities are declared to be final, or there is an express prohibition under a particular act.3. the last sub-section of section 198 of the zamindari abolition act declares that the orders of the collector are, subject to a revision under section 333, 'final'. this thus bars a suit or any other proceeding in a civil court. the order passed by.....
Judgment:

Satish Chandra, J.

1. I have had the advantage of reading the judgment prepared by Hon. K. C. Agarwal, J. I entirely agree. I would, however, like to make a few observations.

2. In Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78 Hidayatullah, C. J., speaking for the Supreme Court, laid down that questions of the correctness of orders are for the decision of the authorities created by a statute, and a civil suit does not lie if the orders of the authorities are declared to be final, or there is an express prohibition under a particular Act.

3. The last Sub-section of Section 198 of the Zamindari Abolition Act declares that the orders of the Collector are, subject to a revision under Section 333, 'final'. This thus bars a suit or any other proceeding in a civil court. The order passed by the Collector or an order passed by the Board of Revenue in a revision filed against the order of the Collector, if any, gains finality between the parties. These orders settle and conclude the rights of the parties. As such the rights cannot subsequently be re-opened.

4. Section 49 of the Consolidation of Holdings Act permits declaration and adjudication of rights of tenure-holders in respect of land lying in an area for which a notification has been issued under Section 4 (2). It also permits adjudication of any other right arising out of consolidation proceedings. But both these matters are permitted 'in regard to which a proceeding could or ought to have been taken under this Act'. The section goes on to provide that the declaration or adjudication shall be made or done in accordance with the provisions of the Consolidation of Holdings Act.

5. Under section 8 the field book and the current annual register are revised and holdings are valued. Under Section 8-A the Statements of Principles are prepared, Under Section 9 the Assistant Consolidation Officer issues notice to the tenure-holder and other interested persons containing the relevant extracts from the annual register showing the rightsand liabilities etc. Under Sub-section (2) of Section 9 a right has been given to file an objection within 21 days of the receipt of the notice. Such objections are decided under Section 9-A by the Assistant Consolidation Officer by the process of reconciliation, and in case of dispute by the Consolidation Officer. Under Sub-section (3) of Section 9, the Assistant Consolidation Officer and the Consolidation Officer, acting under Sub-section (2), are deemed to be a court of competent jurisdiction. Thus the Consolidation of Holdings Act provides a forum for the declaration or adjudication of rights in respect of land. It does not prescribe rights or liabilities. It postulates that the Consolidation Officer shall decide the disputes with reference to existing law governing the rights of the parties. If he finds that in law the rights are already settled, he has to make a declaration to that effect. If he finds that the rights of the parties have already been adjudicated, and such adjudication has become final between them, he is bound to hold that the matter is not open for further adjudication.

6. The provisions of the Zamindari Abolition Act lay down rules for admission of persons to land vesting in the Land Management Committee, and the grounds and the period of limitation within which such grants can be challenged. It created a special authority in the shape of the Collector to adjudicate such disputes. It then provides for a finality. All this shows that in this matter the Act creates a self-contained Code creating rights and indicating the manner of settlement of disputes. No other authority has jurisdiction to re-adjudicate matters covered thereby. The consolidation authorities have to recognise and respect the action of Land Management Committee or order of the Collector or Board of Revenue, if any. They cannot go behind them.

Amitav Banerji, J.

7. I have had the advantage of reading the judgments prepared by Hon'ble K. C. Agarwal J. and Hon'ble Satish Chandra, J. I agree with the conclusion reached by Hon'ble K. C. Agarwal, J. that this writ petition must succeed and the orders of the consolidation authorities be quashed. However, in view of the observations of Hon'ble K. C. Agarwal, J. in regard to the reported decision in the case of Smt. Sukhdei v. D. D. C., 1975 All LJ 44, of which I was a member, it is necessary for me to express my views on the point.

8. In the case of Smt. Sukhdei 1975 All LJ 44 (supra) two questions were raised. Firstly, whether a lease executed by a Gaon Sabha in contravention of the Statutory Pro-visions contained in the U. P. Zamindari Abolition and Land Reforms Act and the Rules framed thereunder was void or voidable and secondly, in case it is voidable, do the consolidation authorities have jurisdiction to adjudicate upon its validity. The Division Bench answered the first question holding that such a lease would be voidable. The answer to the second question was that the consolidation authorities had jurisdiction to adjudicate upon the validity of a lease on being raised but had no suo motu power to do so. K. C. Agarwal, J. in his opinion also subscribed to the view that a lease executed in contravention of law would be voidable and not void. To that extent there is no difference. The difference of view is only in regard to the question as to whether the consolidation authorities have any jurisdiction to adjudicate upon the validity of a lease granted lay the Land Management Committee.

9. K. C. Agarwal, J. has taken the view that after the amendment of Section 198 of the U. P. Zamindari Abolition and Land Reforms Act by the U. P. Land Laws (Amendment) Act, 1970 (U. P. Act No. 35 of 1970) and the U. P. Land Laws (Amendment) Act, 1974 (U. P. Act No. 34 of 1974) the power to cancel a lease or allotment of land Jay only with the Collector and such an order was final subject to a revision under Section 333 of the U. P. Zamindari Abolition and Land Reforms Act, hereinafter referred to as the Act. A perusal of the provisions of the amending Acts of 1970 and 1974 makes it clear that the original provisions of Section 198 (4) were deleted. The provision for the aggrieved person to institute a suit to establish the right claimed by him was taken away in 1970. The Division Bench had made it clear that in the case of Smt. Sukhdei v. Deputy Director of Consolidation (1975 All LJ 44) the Consolidation Officer had passed an order cancelling the allotment suo motu on the 24th February, 1967 and the provisions of the then existing Act were being considered. As seen above, the right to institute a suit by the aggrieved person prevailed at that time when the cancellation was made. The Division Bench, therefore, considered the then existing provisions of Section 198 of the Act and the opinion expressed by the Division Bench in the case of Jagarnath Shukla v. S. R. Pande 1969 All LJ 768 and held the Consolidation Officer to be competent to adjudicate upon the validity of a lease deed. The Division Bench in that case was not called upon to consider the subsequent amendments to Section 198 of the Act nor was any such argument advanced before that bench.

10. Taking into account the amendments made in 1970 and 1974 by the amending Acts the position today is that it is only the Collector who can cancel a lease or an allotment under Section 198. His order is, however, subject to a revision under Section 333 of the Act and such an order is final. On the question of 'finality' Satish Chandra, J. has referred to the decision of Hidayatullah, C. J. in the case of Dhulabhai v. State of Madhya Pradesh AIR 1969 SC 78. It has been held in the above case:

'Where the statute gives a finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.'

11. The matter before the Supreme Court arose out of an imposition of Sales Tax. A suit was filed and a plea was raised that the suit was barred expressly by Section 17 of the Madhya Bharat Sales Tax Act. The appellant before the Supreme Court contended, that if it was a question of the correctness of the imposition within the valid frame-work of the statute Section 17 might have operated but not when the imposition was under a void law, It was urged that in the latter event the assessee was free to challenge the validity of the law in the civil court. The Supreme Court after examining a large number of reported decisions ultimately held that although the Madhya Bharat Sales Tax Act contained a provision for appeal, revision, rectification and reference to the High Court the notifications being declared void the party could take advantage of the fact that the tax was levied without a complete charging section. This had the result of affecting the jurisdiction of the taxing authorities and they could not proceed to assess the party. Their appeal was thus allowed by their Lordships in the Supreme Court. It may be noticed at once that their Lordships were considering the competency of the Civil Court to entertain the suit on the ground that the provision of law under which tax was being levied was invalid.

12. In the present case the provisions of Section 198 of the Act have not been claimed to be invalid or without jurisdiction. Therefore, the only question is whether the orders passed under the provisions of Section 198 of the Act could be called in question in consolidation proceedings. In the present case the consolidation authorities have held that the Land Management Committee had no authority to execute the lease deed and as such rejected the objection filed by the petitioner who claimed himself to be entitled to mutation of his name on the basis of the lease executed by the Land Management Committee. It is well settled that in areas where the U. P. Consolidation of Holdings Act is applicable a suit in respect of declaration of rights and interest in land is not maintainable in civil courts and is exclusively triable in consolidation courts. Section 49 of the Act bars the jurisdiction of the civil and revenue courts from trying such suits. The basic question, therefore is whether the Consolidation authorities could cancel the lease or set aside the allotment made by the Land Management Committee. In Dhula Bhai's case (AIR 1969 SC 78) (supra) the Supreme Court has laid down that where the statute gave finality to the orders of the special tribunals there was an exclusion of the jurisdiction of the Civil Court. This principle would also be applicable to courts or tribunals which had taken the place of Civil Court. In my opinion, the principle of law laid down in Dhula Bhai's case would exclude the jurisdiction of the consolidation authorities from considering the validity or otherwise of the lease granted by the Land Management Committee.

13. After the deletion of the provisions regarding the filing of suit in Section 198 of the Act a party aggrieved by the order of cancellation of a lease or allotment of land court only file a revision under Section 333 of the Act. The position after the amendment of Section 198 of the Act is that the Collector alone could cancel the lease or set aside the allotment but such orders were subject to the orders of the revisional court. In this view of the matter the position of law as it stands today is that the aggrieved party can only seek a remedy before the authority specified in Section 198 of the Act.

14. However, I am of the opinion that the view taken in Smt. Sukhdei's case (1975 All LJ 44) (supra) was correct and in accordance with law as on the date of the cancellation of the lease viz. 24th February, 1967. The provisions of Section 198 have undergone a substantial change thereafter and at present no other authority except the Collector and the revisional authority under Section 333 of the Act can cancel the lease or set aside the allotment. To that extent I agree with the opinion expressed by brother K. C. Agarwal, J.

15. In this view of the matter, it is really not necessary to dwell on the question as to what exactly was approved by the Supreme Court in the case of Gorakhnath Dube v. Hari Narain Singh, AIR 1973 SC 2451 in regard to the decision of the Division Bench in the case of Jagarnath Shukla (1969 All LJ 768) (supra).

16. I am, therefore, of the opinion that in view of the amendments made to Section 198 of the Act the power to cancel a lease or an allotment of land lay only in the Collector subject to a revision under Section 333 of the Act and, therefore, the consolidation authorities in the present case had no jurisdiction to adjudicate upon the validity of the lease granted by the Land Management Committee.

17. For the reasons given above I concur with the opinion of brothers Satish Chandra and K. C. Agarwal, JJ. that the writ petition should succeed and the orders passed by the Consolidation Officer, Settlement Officer (Consolidation) and Deputy Director of Consolidation should be quashed and the parties should bear their own costs.

K.C. Agarwal, J.

18. The dispute in the present writ petition is in respect of plots Nos. 424, 608, 218, 219 and 172 of village Uskar Ghazipur, Pargana Sikandarpur, district Ballia. These plots, admittedly, belonged to Gaon Sabha Uskar Ghazipur, respondent No. 2. On August 2, 1966, the Gaon Sabha executed a lease of the aforesaid plots in favour of the petitioner, who is the son of a soldier who died at the front in India China War of 1962. The Supervisor Kanungo, after some time, reported to the Sub-Divisional Officer that the lease executed in favour of the petitioner by the Gaon Sabha being against the provisions of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as 'the Act') and the Rules framed thereunder, was invalid and was liable to be cancelled. On the report submitted by the Supervisor Kanungo, the Sub-Divisional Officer initiated proceedings for cancellation of the lease, and for that purpose issued notice to the petitioner calling upon him to show cause as to why the lease be not cancelled. The petitioner filed an objection and contended that the lease was in accordance with the provisions of the Act and the Rules, hence was not liable to be cancelled.

19. On July 18, 1968, the Sub-Divisional Officer found that the lease executed in favour of the petitioner was in accordance with the law, excepting in respect of plot No. 172. On this finding, the Sub-Divisional Officer refused to confirm the lease of plot No. 172, whereas the lease in respect of the(sic) order of the Sub-Divisional Officer, the State of U. P. preferred an appeal before the Additional Commissioner whereas the petitioner filed a cross-objection. Both the matters were decided by the Additional Commissioner, Varanasi, by his judgment dated August 17, 1969, on the finding, that since the Land Management Committee concerned had not been impleaded, the entire proceedings relating to cancellation of the lease were vitiated. On this finding, the Additional Commissioner set aside the order of the Sub-Divisional Officer and quashed the proceedings. It, however, appears that no further proceedings were, thereafter, taken for the cancellation of the lease executed in favour of the petitioner under Section 198 (2) of the Act. The village, where the plots in dispute are situated, was, subsequently, taken for consolidation under the U. P. Consolidation of Holdings Act.

20. In the basic year, the plots in question were shown in the name of the Gaon Sabha, respondent No. 2, against which an objection was filed by the petitioner claiming himself to be entitled to mutation of his name on the basis of the lease, mentioned above. The objection was rejected by the Consolidation Officer and, thereafter, the judgment of the Consolidation Officer was affirmed in appeal by the Settlement Officer (Consolidation) and in revision by the Deputy Director of Consolidation. The view taken by the Deputy Director of Consolidation however, was that as the Land Management Committee possessed less than 10 per cent of the cultivated land, it had no authority to execute the lease deed. It was also found that the rules in regard to priority, as laid down in the U. P. Zamindari Abolition and Land Reforms Rules (briefly stated as 'the Rules'), were also not followed. Aggrieved by the judgment of the Deputy Director of Consolidation, the petitioner preferred the present writ petition before this Court.

21. The writ petition was listed before one of us (Hon'ble Satish Chandra, J.), before whom the petitioner urged that since the consolidation authorities could not go into the question of validity of the lease or pass an order which had the effect of cancelling it, the consolidation authorities committed an error in holding that the petitioner did not acquire any right under the lease dated August 2, 1966, executed in his favour. It was contended on behalf of the petitioner that the lease could be cancelled under Section 198 (2) of the Act, and only on the cancellation of the lease in accordance with the aforesaid provision that the right, title and interest of the petitioner could be extinguished,which had been obtained by him under the lease. Reliance was placed by the learned counsel for the petitioner on an authority of the Supreme Court reported in Gorakh Nath Dube v. Hari Narain Singh (1973 R. D. 423), and in Rasala v. Deputy Director of Consolidation, U. P. Lucknow, (1970 All LJ 274). Counsel appearing for the Gaon Sabha controverted the proposition advanced on behalf of the petitioner, and contended that the power of the Assistant Collector, First Class, to cancel the lease under Sub-section (2) of Section 198 of the Act was not exclusive, and that the same could be exercised by the consolidation authorities, after the land had been taken under consolidation. He urged that as the lease deed executed in favour of the petitioner was against the provisions of the law and was thus voidable, therefore, the same could be and was, in fact, rightly not given effect to by the consolidation authorities by rejecting the objection filed by the petitioner. In support of his objection, reliance was placed by the learned counsel for the Gaon Sabha on Rameshwar Sahai v. Deputy Director of Consolidation, (1973 All WR (HC) 238) and on a Division Bench decision of this Court reported in Mst. Sukhdei v. Deputy Director of Consolidation (1975 All LJ 44). The learned Single Judge being of the opinion that some of the aspects requiring consideration for deciding the above controversy had not been placed for consideration in Mst. Sukhdei's case (supra), referred the present case to a Full Bench for reconsideration of the aforesaid decision. In this way the case has come before us.

22. The first question that arises for decision is whether the power of cancellation conferred by Section 198 of the Act on the Assistant Collector, First Class, is exclusive, and that the consolidation authorities did not have authority to go into the question of of validity of the land given by the Gaon Subha under Section 197 of the Act, in the consolidation proceedings. In order to decide the above controversy, it appears necessary to refer to the legislative history of Section 198 of the Act, which has been amended from time to time.

23. Before doing so, I may mention that Section 195 of the Act confers right on the Land Management Committee to admit any person as Sirdar to any land, other than land falling in any of the classes mentioned in Section 132, where-

(a) the land is vacant land.

(b) the land is vested in the Gaon Sabha under Section 117, or

(c) the land has come into the possession of the Land Management Committee underSection 194 or under any other provision of this Act.

Section 196 provides for the admission of intermediary as sirdar in vacant land in certain cases, whereas Section 197 deals with admission to land mentioned in Section 132. As we are not concerned with the interpretation of the Rules, I may only point out that the relevant rules framed by the State Government to give effect to the above provisions are contained in Rules 173, 174, 175, 176, 176-A and 177 of the Rules.

24. Sub-section (1) of Section 198 of the Act dealt originally with the order of preference which had to be observed by the Gaon Sabha in admitting any person as sirdar or Asami under Section 195 or 197 of the Act. Sub-section (2) laid down that any person aggrieved by an order of the Gaon Sabha passed under Sub-section (1), could file an appeal to the Sub-Divisional Officer. By Section 36 of U. P. Act XX of 1954, Sub-section (2) was substituted by a new sub-section. The material change brought about by this amendment was to confer power on the Sub-Divisional Officer suo motu to set aside an allotment if he was satisfied that the Gaon Sabha had acted with substantial irregularity or Otherwise in accordance with the provisions of the Act. By the U. P. Land Reforms (Amendment) Act 1958 (Act XXXVII of 1958), the legislature drastically amended Section 198 of the Act and by Section 55 of the said Amending Act inserted 'Sub-sections (3) and (4)' as new sub-secs. Subsections (3) and (4), which are material for our purposes, are quoted below:

'(3) Where an Assistant Collector incharge of the sub-division cancels an allotment, the right, title and interest of the allottee or any person claiming through him shall, subject to the provisions of Sub-section (4), cease in the land allotted thereunder which shall revert to the Gaon Sabha, and any person holding or retaining possession of such land shall be deemed to be a person who has encroached upon such land and shall be liable to ejectment in the manner prescribed.

(4) Any person aggrieved by the order of cancellation passed under Sub-section (2) may institute a suit to establish the right claimed by him but subject to the results of such suit the order of cancellation shall be final.'

25. It may be noted that the order of preference as laid down in Sub-section (1) of Section 198 of the Act was changed or modified from time to time. But, as we are not concerned with the aforesaid sub-section, we do not consider it necessary to refer to the amendments made in the aforesaid sub-section. After and before the U. P. Act No.XXXVII of 1958, there have been other amendment as well, but since they are not relevant for purposes, we need not mention them. By the U. P. Land Laws (Amendment) Ordinance, 1970 (No. XVIII of 1970), Section 198 of the Act was again amended and the scheme for observance of preference in matters of allotment of land belonging to the Land Management Committee was drastically changed. Sub-sections (3) and (4), as amended by this Ordinance are as under:

'(3) The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land inquire in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular he may:--

(i) cancel the allotment and the lease, if any, and thereupon the right, title and interest of the allottee or lessee or any person claiming through him in the land allotted or leased shall cease, and such land shall revert to the Gaon Sabha, and

(ii) direct delivery of possession of such land forthwith to the Gaon Sabha after ejectment of every person holding or retaining possession thereof and may for that purpose use or cause to be used such force as may be necessary.

(4) Every order passed by the Collector under Sub-section (3) shall subject to the provisions of Section 333, be final'

25A. The aforesaid Ordinance, which came into force from September 28, 1970, was repealed by the U. P. Land Laws (Amendment) Act, 1970 (U. P. Act No. 35 of 1970). The Act was published in the U. P Gazette (Extraordinary), dated December 29, 1970. Sub-sections (3) and (4), as substituted by the U. P. Act No. 35 of 1970, remained the same and, therfore, need not be reproduced. Almost after four years, this Section was again amended by the U. P. Land Laws (Amendment) Act, 1974 (U. P. Act No, 34 of 1974). Sub-sections (4) and (5) of Section 198, as amended by the aforesaid Act, are as under:

'(4) The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land inquire in the manner prescribed, into such allotment, and if he is satisfied that the allotment is irregular he may,--

(i) cancel the allotment and the lease, if any, and thereupon the right, title and interest of the allottee or lessee or any person claiming, through him in the land allotted or leased shall cease, and such land shall revert to the Gaon Sabha, and

(ii) direct delivery of possession of such land forthwith to the Gaon Sabha afterejectment of every person holding or retaining possession thereof, and may for that purpose use or cause to be used such force as may be necessary.

(5) Every order made by the Collector under Sub-section (4) shall, subject to the provisions of Section 333, be final.'

26. The legislative history of the aforesaid section, mentioned above, would show that in the beginning the legislature did not provide for any right of a suit or for a further proceeding challenging the order of allotment, after it had been cancelled or maintained by the Sub-Divisional Officer in the proceedings initiated under Sub-section (2) of Section 198. By U. P. Act No. XXXVII of 1958, however, the legislature for the first time provided for a suit laying down that an order of Sub-Divisional Officer would be subject to the decision of a suit. This position continued in operation till Sub-section (4) of Section 198 was amended by U. P. Ordinance No. 18 of 1970, By this Ordinance the right to challenge an order of cancellation passed by the Sub-Divisional Officer or Assistant Collector, First Class, was taken away, and that it was specifically provided that every order passed by the Collector under Sub-section (3) shall, subject to the provisions of Section 333, be final. Thus, an order could be the subject of a revision alone and not to any suit. The same position continues till now. This would show that although at one time the legislature had conceded the remedy of a suit to an aggrieved person, but the same has been taken away. When a right of a suit was given, the same became subject to a decision of the suit. It would thus be noticed that the legislature provided for the question relating to the validity of a lease executed under Section 198 of the Act to be decided in accordance with a special procedure either through an application to the Officer concerned or thereafter by a suit. The right to file a suit has, however, been taken away by U. P. Ordinance No. 18 of 1970. As a result thereof, now the validity of a lease deed or admission of a person as a sirdar has to be decided by the Collector and thereafter the same can be taken up by means of a revision under Section 333 of the Act. Sub-section (4) specifically lays down that every order of the Collector shall, subject to the provisions of Sub-section (4), be final. A decision is said to be final when so far as the court rendering it is concerned it is unalterable. It eliminates the litigation between the parties on the merits and leaves nothing to be done excepting to execute the judgment. In the instant case also it appears that the legislature has deliberately used the word 'final' in thissense with a view to end the proceedings relating to the cancellation of lease deeds. It appears to me that the Act conferred the right on the Land Management Committee to let out the land and laid down the exhaustive machinery of cancelling the same in case it was not done in accordance with the provisions of the Act and the Rules. As stated above, it was thought by the legislature that the expediency required nothing further to be determined by the court or to be done by any authority, and that it was with that end in view that in 1970 by U. P. Ordinance No. 18 of 1970 the provision of even filing the suit which had been previously provided by U. P. Act XXXVII of 1958, was taken away. It is, therefore, clear that after the amendment made by U. P, Ordinance No. 18 of 1970, the right to decide the question arising in connection with the cancellation of lease deeds is exclusively that of the Collector, which of course is subject to revision, provided by Section 333. Since the machinery provided is exclusive, it is not possible to hold that the consolidation authorities created by the U. P. Consolidation of Holdings Act could also investigate into the legality or otherwise of the question of the validity of the lease.

27. The mere fact that at one time the Act provided that a suit could be filed challenging the order of the Sub-Divisional Officer does not, to our mind, change the position inasmuch as upto the time the right to file the suit was there it could be held that the question of validity of allotment could also be decided by the court dealing with such a suit. But, such a suit was required to be filed in accordance with Section 229-B of the Act. Making of provision of a suit in Sub-section (4) of Section 398 at that time did not and could not mean that the question of validity of the lease could be challenged in the proceedings under the U. P. Consolidation of Holdings Act. What is material to be noted is that the U. P. Consolidation of Holdings Act as well as the U. P. Zamindari Abolition and Land Reforms Act have been passed by the same legislature. Had the U. P, Legislature intended that the rights relating to a lease granted under Section 197 could be the subject matter of the consolidation proceedings, it would not have made a provision for filing of a suit by U. P. Act No. XXXVII of 1958, when the U. P. Consolidation of Holdings Act had come into force and was very much in operation. At the same time, Sub-section (4) of Section 198 would have not been deleted and substituted by Sub-section (5) laying down that every order made by the Collector under Sub-section (4) shall subject to the provisions of Section 333 befinal inasmuch as the finality attached to the aforesaid order could not be achieved as the same could, according to the argument advanced on behalf of respondent No. 2, be reopened and gone into afresh. The amendment brought about by U. P. Ordinance No. 18 of 1970 leaves no room for doubt that a decision arrived at by the Collector cancelling or refusing to cancel the lease is conclusive and decisive. It appears to us that if we were to accept the argument of the learned counsel for respondent No. 2 that the question of the validity of a lease could still be gone into by the consolidation authorities despite the enforcement of U. P. Ordinance No. 18 of 1970, the same would result in denying the amendment its efficacy. I, however, wish to make it clear that even before the said amendment came into force it appears to us that the legislature never wanted the consolidation authorities to investigate into the rights and, as observed above, such a question could only be gone into in a regular suit in accordance with the provisions of the U. P. Zamindari Abolition and Land Reforms Act.

28. I am also not prepared to accept the submission advanced on behalf of respondent No. 2 that the proceedings contemplated by Section 198 (2) of the Act were of a summary nature, and that any decision arrived at in these proceedings does not like proceedings under Section 145 Cr. P. C. and Section 6 of the Specific Relief Act conclude the matter finally. It is worthy of note that in a proceeding under Section 145 Cr. P. C. the court is required to go only into the question of possession of the parties and to direct the handing over the property attached to the party who is found to be in possession sixty days before the attachment. Similarly, in a proceeding under Section 6 of the Specific Relief Act, the court has to confine itself to the question of possession. Section 6 of the Specific Relief Act, as is well known was enacted only with a view to discourage people from taking law in their hands. The position, however, in a proceeding under Section 198 of the Act is altogether different. The Collector is not to adjudge the validity or legality of an allotment on the basis of possession, but on the finding whether such an allotment had taken place in accordance with the provisions of the Act and the Rules. As a matter of fact, the question of possession is foreign to the controversy involved under Section 198 of the Act. In these proceedings all that one can show is to justify the allotment. Accordingly, the proceedings under Section 198 of the Act cannot be kept at par with these summary proceedings a reference ofwhich has been made above. Simply because at one time there was a provision of a suit under Sub-section (4) of Section 198, to our mind, it does not materially affect the position, It, therefore, appears to us that the remedy provided by Section 198 is exhaustive and exclusive, and that the question relating to the validity of a lease cannot be gone into by the consolidation authorities.

29. The next aspect which may be mentioned here is that from the language of Section 5 of the U. P. Consolidation of Holdings Act it is clear that if a suit has to be abated under this provision then the consolidation authorities must have jurisdiction to go into the question involved. Consequently, if the consolidation authorities are not competent to grant any relief to a person aggrieved, it would be futile to hold that the legislature even in those cases provided for the abatement of the proceedings. If a lease, which is executed by the Land Management Committee, or admission of a person as sirdar under the provisions of the Act is not in accordance with the Act and the Rules, then the result would be that such a transaction would be voidable and would be required to be avoided. It is only on the cancellation of the lease that the right, title and interest of the person admitted to the land is extinguished. Sub-section (4) (i) provides that on the cancellation of a lease or allotment, the right, title and interest of the allottee or lessee or any person claiming through him in such land, shall cease and the land shall revert to the Gaon Sabha. Accordingly, so long as the lease is not cancelled or the allotment made is not set aside, the person obtaining the land from the Land Management Committee would be entitled to hold it for his or her benefit. A transaction which is voidable is valid until repudiated. I am not prepared to accept, as was urged on behalf of the respondent No. 2, that the lease having not been executed in accordance with the Act in the instant case, was void.

30. If a transaction is void, it is empty without force. In fact, a claim that a transaction is void for illegality does not raise any issue whether or not parties, in fact, agreed to the terms. It concedes that they did, but asserts that their agreement gave rise to no legally enforceable rights or duties. As observed above, a lease or allotment of land by the Land Management Committee is binding on the parties so long as it is not set aside in appropriate proceedings. Consequently, the question that needs determination is whether in such a suit could it be possible for the consolidation authorities togo into the validity of the lease. The question of jurisdiction of the consolidation authorities to adjudicate and decide the rights of the parties flowing from void and voidable documents came up for consideration by the Supreme Court in Gorakh Nath Dube v. Hari Narain Singh (1973 RD 423). In this case, the Supreme Court was called upon to decide the validity of a document which, according to its view, was void, In this view of the matter, the Supreme Court held that the consolidation authorities could go into the same and, consequently, directed for abatment of the proceedings arising out of a suit, The Supreme Court, however, held that a distinction had to be made between cases where a decree is wholly or partially invalid and where it had to be actually set aside before it could cease to have legal effect. With regard to the transactions falling in the latter category, the Supreme Court observed

'........ but, where there is a documentthe legal effect of which can only be taken away by setting ft aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by court having the power to cancel it.'

These observations make it clear that in the case of a voidable transaction, the consolidation authorities have no jurisdiction to go into its validity and to hold the same inoperative so long as it has not been set aside by a competent court. In case of a lease or allotment of a land made contrary to the provisions of Section 198 of the Act, it appears to us that as such a transaction would be voidable, the consolidation authorities would have no right to inquire into and adjudicate the validity of the same.

31. Counsel for the respondent No. 2, however, contended that there is no real distinction between a void and voidable transaction and in either case the consolidation authorities have ample jurisdiction to decide the rights of the parties. In support of his argument, the learned counsel relied upon a Division Bench case of this Court in Jagarnath Shukla v. Sita Ram Pande (1969 All LJ 768). It is true that some of the transactions which were dealt with by this court in Jagarnath Shukla's case (supra) were voidable and still the Division Bench held that appeals and revisions were liable to be abated under Section 5 of the U. P. Consolidation of Holdings Act. But, on a careful examination of Gorakhnath Dube's case (1973 RD 423) (supra), we are unable to find that the Supreme Court has approved Jagarnath Shukla's casein its entirety. In Gorakh Nath Dube's case, the Supreme Court although made a reference to Jagarnath Shukla's case but it did not express its agreement with all that had been said in the latter case. The law, in fact, laid down by the Supreme Court in Gorakh Nath Dube's case (supra) is slightly at variance with that of Jagarnath Shukla's case. The observations of the Supreme Court to the effect that 'we find ourselves in agreement with the view expressed by the Division Bench of the Allahabad High Court in Jagarnath Shukla's case (supra) that it is the substance of the claim and not its form which is decisive' was wrongly relied upon by the learned counsel for respondent No. 2 for showing that Jagarnath Shukla's case had been approved fully. I, therefore, find that the law laid down by the Division Bench in Jagarnath Shukla's case (supra) to the extent that it varies with the law enunciated by the Supreme Court in Gorakh Nath Dube's case cannot be considered to be good law. At this place we wish to mention that we are unable to share with the opinion of the. Bench deciding Smt. Sukhdei's case (supra) when it held that Jagarnath Shukla's case still holds the field It seems to us that the distinction pointed out by us was not brought to the notice of the Bench deciding Mst. Sukhdei's case (1975 All LJ 44).

32. From the view which I have taken above, it is clear that the consolidation authorities did not have jurisdiction to decide the question of validity of the lease or allotment. Accordingly, I am inclined to hold that Rameshwar Sahai's case (1973 All WR (HC) 238) (supra) does not lay down the correct law and is liable to be overruled. It appears that the same view was taken by R. B. Misra, J., in Writ Petn. No. 2462 of 1970, Sadho Singh v. State of U. P. decided on 4-10-1972. The view taken in this case is also liable- to be overruled for the same reasons. I, in agreement with the view taken in the case of Shukla (1969 All LJ 768) (supra), held that the writ petition is entitled to succeed.

33. I may also refer to Section 30 of the U. P. Land Laws (Amendment) Ordinance, 1976 (Ordinance No. 17 of 1976), which came into force with effect from 15th of June 1976, laying down that:

'Where the allotment of lease of any land made before the consolidation scheme becomes final under Section 23, is cancelled by an order under Sub-section (4) of Section 198 of the Uttar Pradesh Zamindari Abolition and Land Re-forms Act, 1950, and such order becomes final, then notwithstanding anything contained in the provisions of this Act, such order shall be given effect to by such authorities, as may be prescribed, in the following manner, and the consolidation operation shall, for that purpose, be deemed to have not closed, namely,

(a) the value of the land which was the subject-matter of such allotment or lease shall first be ascertained in the manner prescribed;

(b) the value referred to in Clause (a) shall be deducted from the total value of land allotted to the tenure holder concerned during consolidation proceedings:

(c) the tenure-holder shall be entitled during consolidation proceedings, to land equivalent in valuation to the said land.' This provision shows that the necessity to make the above provision arose only because it was felt that the allotment of lease of any land could be cancelled by the Assistant Collector, First Class (now Collector), under Sub-section (4) of Section 198 of the Act, and that the rights of the parties based thereon could not be decided in the consolidation proceedings, otherwise there was no need for the legislature to make this provision. This provision now made fortifies our view that the jurisdiction of the Collector conferred by the above sub-section is exclusive.

34. For the reasons given above, the writ petition succeeds and is allowed. The judgments and orders of the Consolidation Officer, the Settlement Officer (Consolidation) and the Deputy Director of Consolidation are hereby quashed. In the circumstances of the case, I direct the parties to bear their own costs.

BY THE COURT

35. The writ petition succeeds and is allowed. The judgments and orders of the Consolidation Officer, the Settlement Officer (Consolidation) and the Deputy Director of Consolidation are quashed. In the circumstances of the case, we direct the parties to bear their own costs.


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