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Jiwa Ram and anr. Vs. the Deputy Director of Consolidation and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 751 of 1970
Judge
Reported inAIR1973All416
ActsUttar Pradesh Consolidation of Holdings Act, 1954 - Sections 9, 52(1) and 52(2); Uttar Pradesh Consolidation of Holdings (Amendment) Act, 1965 - Sections 52; Uttar Pradesh Consolidation of Holdings (Amendment) Act, 1963 - Sections 47
AppellantJiwa Ram and anr.
RespondentThe Deputy Director of Consolidation and ors.
Appellant AdvocateA.P. Misra, Adv.
Respondent AdvocateSwaid Dayal, S.C.
DispositionAppeal allowed
Excerpt:
civil - effect of amendment - section 52 (1) , (2) of u.p. consolidation holdings act, 1965 - the effect of the amendment - proceedings pending when amending act of 1963 came into force - to be governed by section 52 of u.p. consolidation holdings act, 1965 - applicable to even those proceedings which could be conducted and concluded in accordance with unamended act - held , application for restoration was maintainable and was rightly entertained. - .....to this end he remanded the case to the consolidation officer,2. on 22-9-1967 the consolidation officer dismissed the objection filed by the appellants in default. the same day the appellants filed an application for setting aside the ex parte order. on 13-12-1967 this application was allowed and the order dismissing the objection in default was set aside. the sabha went up in appeal. the settlement officer held that the consolidation officer had jurisdiction to entertain the application for restoration, even though a notification under section 52 had been issued on january 1, 1966. on this view the appeal was dismissed.3. the sabha then filed a revision. the deputy director held that the proceedings would be governed by the consolidation of holdings act as it stood prior to its.....
Judgment:

Satish Chandra, J.

1. Jiwan and Kanhaiya Lal the appellants were recorded as tenants-in-chief of the plots in dispute. Raadha Swami Satsang Sabha Dayal Bagh the respondent was shown in the revenue papers as in possession for the last many years. The appellants filed an objection under Section 9. U.P. Consolidation of Holdings Act claiming that the entry in favour of the respondent be expunged. On 20th May, 1962 the Assistant Consolidation Officer purported to record reconciliation under which the Sabha was accepted to be sirdar of the plots. The appellants appealed against that order of reconciliation. The appeal was dismissed on 27th November, 1964. The appellants then filed a revision. The Deputy Director upheld the appellant's contention that they had no notice of the reconciliation proceedings. He set them aside and remanded the case to the Settlement Officer for disposal. The Settlement Officer held that because of setting aside the reconciliation proceedings the objection had to be decided on merits which requires evidence. To this end he remanded the case to the Consolidation Officer,

2. On 22-9-1967 the Consolidation Officer dismissed the objection filed by the appellants in default. The same day the appellants filed an application for setting aside the ex parte order. On 13-12-1967 this application was allowed and the order dismissing the objection in default was set aside. The Sabha went up in appeal. The Settlement Officer held that the Consolidation Officer had jurisdiction to entertain the application for restoration, even though a notification under Section 52 had been issued on January 1, 1966. On this view the appeal was dismissed.

3. The Sabha then filed a revision. The Deputy Director held that the proceedings would be governed by the Consolidation of Holdings Act as it stood prior to its amendment in 1963. Under the unamended Section 52 of the Act the jurisdiction of the consolidation authorities ceased on the issuance of the notification. The Settlement Officer ought to have dismissed the appeal instead of remanding it to the Consolidation Officer. On this view the revision was allowed.

4. Aggrieved, the appellants filed a writ petition in this Court. A learned single Judge relying upon Mohammad Saddiq v. Dy. Director of Consolidation, (1967 U.P. Rev. Cas 92 (All)) held that after the notification under Section 52 the restoration application was in-competent. The writ petition was dismissed, leading to the present appeal.

5. The proceedings were pending when the amending Act VIII of 1963 came into force. It was urged that in view of the transitory provisions contained in Section 43 these proceedings had to be conducted and concluded in accordance with the unamended Act. So Section 52, as it stood prior to its amendment in 1963, would be applicable.

6. This submission does not help the respondent. Section 47 of the amending Act No. VIII of 1963 itself was amended by Section 52 of the Amending Act No. XII of 1965 which reads as follows:

'In Sub-section (11 of Section 47 of the Uttar Pradesh Jot Chakbandi (Sanshodhan) Adhiniyam, 1962-

(a) in the opening paragraph .........

(b) in Clause (ii) ............

(c) for the words ',as if this Act had not come into force' the words 'as if the provisions of this Act, excepting Section 43 had not come into force' shall be substituted.'

7. The effect of this amendment is that proceedings which were pending when the amending Act of 1963 came into force were to be governed by the emended Section 52. Section 52 of the principal Act was amended by Section 43 of the 1963 amending Act. By Section 43, Sub-section (2) was added to Section 52. The result is that proceedings which Were pending when the amending Act of 1963 came into force were to be governed by Section 52 as it stood after its amendment in 1963. Sub-section (2) of Section 52 was applicable even to those proceedings which could be conducted and concluded in accordance with the unamended Act. This view is supported by a decision of the Division Bench of this Court in Om Prakash v. Saiyid Husain, (1968 RD 460 (All)). In this situation it is unnecessary to consider whether Sub-section (2) of Section 52 being procedural in nature would of its own force apply to proceedings which were pending on 8th March, 1963 when this provision was added.

8. The position is that the objection under Section 9 was pending on January 1, 1966 the date of the issuance of the notification under Section 52 (1). It was dismissed subsequently. The application for restoration will be governed by Section 52 (2).

9. In Dilawar Singh v. Gram Samaj, (1972 All WR HC 5571 = (AIR 1973 All 4111 a Division Bench held that a revision can be filed subsequent to the issuance of the notification under Section 52. Similarly, in Ram Bahadur v. Deputy Director of Consolidation. (Writ Petn.No. 2686 of 1970) decided on 19-12-1972 = (AIR 1973 All 414) a Division Bench has held that an application for restoration of a case or proceeding is maintainable, even though the notification under Section 52 (1) has already been issued. In view of these Division Bench decisions the contrary decision of the learned single Judge in (1967 U.P. Rev. Cas. 92 (All) 1 cannot be accepted as laying down correct law.

10. In our opinion the application for restoration was maintainable and was rightly entertained. The learned single Judge was in error in holding that it was incompetent. The view of the Deputy Director that the Settlement Officer ought to have dismissed the appeal instead of remanding the case to the Consolidation Officer is unsustainable. By taking this view the Deputy Director had in fact sat in appeal over the order of his predecessor who had passed the order of remand. This was illegal.

11. In the result, the appeal succeeds and is allowed. The judgment of the learned single Judge is set aside, the writ petition is allowed. The order of the Deputy Director is quashed and the matter is sent back to the Consolidation Officer for decision of the objection on merits and in accordance with law. The parties may bear their own costs.


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