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Jadumani Biswal Vs. Narayan Chandra Biswal (Deceased by L.R.) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal Nos. 29 and 42 of 1970
Judge
Reported inAIR1983Ori114; 54(1982)CLT584
ActsOrissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sections 3(1) and 4(4)
AppellantJadumani Biswal
RespondentNarayan Chandra Biswal (Deceased by L.R.) and ors.
Appellant AdvocateS. Misra, Adv.
Respondent AdvocateR.K. Mohapatra, Adv.
Cases ReferredState of Andhra Pradesh v. Mohd. Ashrafuddin
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....p.k. mohanti, j. 1. these two appeals have been heard together and will be disposed of by this common judgment. 2. first appeal no. 29 of 1970 and first appeal no. 42 of 1970 have been preferred by defendant no. 1 and the plaintiff respectively against a preliminary decree for partition. 3. during the pendency of the appeals, the suit lands came under consolidation operation by virtue of a notification issued under section 3(1) of the orissa consolidation of holdings and prevention of fragmentation of land act, 1972 (hereinafter referred to as the 'act'). the suit lands cover both agricultural and non-agricultural lands. the learned counsel appearing on behalf of the appellant in first appeal no. 29 of 1970 contended that notification under section 3(1) of the act having been issued in.....
Judgment:

P.K. Mohanti, J.

1. These two appeals have been heard together and will be disposed of by this common judgment.

2. First Appeal No. 29 of 1970 and First Appeal No. 42 of 1970 have been preferred by defendant No. 1 and the plaintiff respectively against a preliminary decree for partition.

3. During the pendency of the appeals, the suit lands came under consolidation operation by virtue of a notification issued under Section 3(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as the 'Act'). The suit lands cover both agricultural and non-agricultural lands. The learned counsel appearing on behalf of the appellant in First Appeal No. 29 of 1970 contended that notification under Section 3(1) of the Act having been issued in respect of the village where the suit lands are situate, the suit has to abate as a whole. The learned counsel appearing on behalf of the appellants in First Appeal No. 42 of 1970 on the other hand contended that the suit so far as it relates to homestead lands cannot abate. Reliance is placed on two single Bench decisions of this Court reported in (1976) 42 Cut LT 400 (Abhimanyu Panda v. Digambar Beura) and, AIR 1980 Orissa 183 (Musa Jena v. Panu Charan Naik) where both the learned Judges took the view that the homestead land does not come within the purview of the Act and on the publication of the notification under Section 3(1) of the Act the suit in respect of such land cannot abate.

4. The questions for consideration are whether homestead lands are covered by the provisions of the Act and whether a suit pending in the civil court in respect of such lands will abate under Section 4(4) of the Act.

5. Section 4(4) of the Act provides for abatement of suits and proceedings pending on the date when the notification under Section 3(1) is published. It reads as follows:--

'Section 4. Effect of Notification.--Upon the publication of the notification issued under Sub-section (1) of Section 3 in the Official Gazette, the consequences as hereinafter set forth, shall subject to the provisions of this Act, ensue in the consolidation area till the publication of notification under Section 41 or Sub-section (1) of Section 5, as the case may be--

XX XX XX 4. every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceeding could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal, reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending, stand abated:

Provided that no such order shall bepassed without giving the parties concerned an opportunity of being heard: xx xx xx'

Thus, it will be seen that for a suit or a proceeding pending in a civil court to abate, the following conditions must be satisfied:

(i) It must be for declaration of any right or interest in any land situate within the consolidation area.

(ii) It must be for declaration of any right or interest in land in regard to which proceedings could be or ought to be started under the Act.

(iii) It must be pending before any civil court whether of the first instance or appeal, reference or revision on the date of publication of the notification.

(iv) The Civil Court in which the suit or proceeding is pending is to pass an order of abatement.

6. While the above provisions deal with abatement of pending suits, the provisions of Section 51 bar the institution of suits in the Civil Courts. It provides as follows:--

'51. Bar of jurisdiction of Civil Courts:--Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in Clause (3) of Section 4 and Sub-section (1) of Section 7 --

(1) all questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction of Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation operations; and

(2) no Civil Court shall entertain any suit or proceeding in respect of any matter which an officer or authority empowered under this Act is competent to decide.'

Section 4(4) and, Section 51 are integral parts of the same scheme, namely, that during the consolidation operation, declaration of any right or interest in land has to be done by the consolidation authorities and not by the Civil Court. Section 4(4) covers pending suits while Section 51 forbids future suits to that end.

7. There is no dispute between the parties that the suit lands cover both agricultural and homestead lands and that the suit lands have come under the consolidation operation by virtue of a notification issued under Section 3(1) of the Act. It is the common case of both the parties that the suit in so far as it relates to the agricultural lands shall abate under Section 4(4) of the Act. The controversy centres round the question as to whether the suit in so far as it relates to the homestead lands would abate. The term 'land' used in Section 4(4) and Section 51 has been denned in Section 2 (0) to mean 'land of whatever description'. The definition is wide enough to include homestead lands. A defined word when used in the body of the statute has to be given the meaning assigned to it in the interpretation clause, unless there is anything repugnant in the subject or context. The expressions 'land' and 'agricultural land' have been defined separately with different purposes. Reference to a few provisions of the Act would, make the point clear. In Sub-section (2) of Section 4, which imposes restrictions on transfers, the legislature uses the term 'agricultural land' while in Sub-section (4) of that section, which provides for abatement of suits and proceedings, the term used is 'land'.

8. Another condition to be satisfied for attracting the provisions of Section 4(4) is that the suit must be for declaration of any right or interest in land in regard to which proceedings could be or ought to be started under the Act. If under the provisions of the Act no proceeding can be started in respect of any land, the suit in respect thereof pending in a civil court cannot abate. Proceedings under the Act are not merely for consolidation, but also for preparation of village Maps and Land Registers. Village Maps and Land Registers must necessarily include all the lands in the village--both agricultural and non-agricultural.

Section 7 (3) also empowers the consolidation authorities to settle the fair and equitable rent and cess payable in respect of any land. For the purpose of settlement of such rent and cess, Sub-sections (3-a) and (3-b) provide different standards in respect of agricultural lands and non-agricultural lands. Sub-section (3-a) prescribes the standard for settlement of fair and equitable rent and cess in respect of the lands used for agriculture while Sub-section (3-b) prescribes the standards in respect of any land used for any purpose other than agriculture including all kinds of homestead lands in urban and rural area of the State. Sections 9 to 15 authorise the consolidation authorities to invite objections against the entries made in the Land Register and the record-of-rights and to decide the same. Section 22 (4) of the Act provides that village maps and record-of-rights published under Section 22 (2) shall be deemed to have been prepared under the Survey and Settlement Act, 1958. Provision has been made in Section 4(3) for abatement of survey and settlement proceedings in respect of the lands lying in the consolidation area.

9. According to the third proviso to Section 4(4), abatement of a suit or proceeding shall be without prejudice to the rights of the person affected to agitate the right or interest which formed the subject-matter of the suit or proceedings before the proper consolidation authority in accordance with the provisions of the Act and the Rules made thereunder. Thus, if a suit abates, then the consolidation authorities must have jurisdiction to go into the question involved. Conversely, if a matter can be gone into by the consolidation authorities, then a suit in respect of that matter must abate under Section 4(4). The test to be applied in determining the question whether a suit shall abate or not is whether the parties can get the real and effective relief from the consolidation authorities. In a suit for partition the real and effective relief would be to divide the lands by metes and bounds. Section 7 deals with the power of consolidation authorities to effect partition of joint holdings. It provides that the Assistant Consolidation Officer and the Consolidation Officer shall, in addition to the powers vested in them under the Act, have powers to effect partition of joint holdings on an application of any party interested, notwithstanding anything to the contrary contained in any other law for the time being in force. Provisos to Sub-section (1) of Section 7, as amended by Orissa Act 31 of 1979, read as follows:--

'Provided that a partition on the basis of specific parcels of land may, on an application made in that behalf, be effected --

(a) where all the concerned land owners agree by the Assistant Consolidation Officer or the Consolidation Officer; and

(b) where all the concerned land owners do not agree by the Consolidation Officer;

Provided further that except where all the concerned land owners agree a partition on the basis of specific parcels of land shall not be effected without giving the parties concerned a reasonable opportunity of being heard.'

'Holding' has been defined in Section 2 (n) to mean parcel or parcels of land forming the subject-matter of a separate tenancy. Thus, holding would include homestead. In view of the aforesaid provisions, the parties to a suit for partition can get the effective relief from the consolidation authorities. The present appeals which include a claim of partition of homestead land must, therefore abate.

10. In the case of Abhimanyu Panda v. Digambar Beura (1976-42 Cut LT 400), the learned single Judge in coming to the conclusion that homestead land is not covered by the Act relied mainly on the preamble of the Act, the Statement of Objects and Reasons appended to the Bill and the definitions of 'agricultural land' and 'consolidation' in Sections 2 (b) and 2 (f) and observed:--

'......Nothing turns on the wide definition of the term 'land' in Section 2 (b) of the Act, because in the material definitions what has been used is not 'land' but 'agricultural land' or 'land which is fit for cultivation'.'

No reasons have been assigned why the wide definition would, not be given full effect and what injury would be caused to the scheme of the Act thereby.

In the case of Musa Jena v. Panu Charan Naik, (AIR 1980 Orissa 183) the learned single Judge held that homestead lands cannot be subject-matter of consolidation and so, on the publication of the notification under Section 3(1) of the Act, a suit in respect of homestead lands pending in the Civil Courts cannot abate. The learned Judge relied mainly on the preamble of the Act, the Statement of Objects and Reasons and the definition of 'agricultural land' in coming to the above conclusion.

11. No doubt, the preamble of a statute is an admissible aid to construction. But in certain circumstances, there may be no exact correspondence between preamble and enactment, and the enactment may go beyond, or it may fall short of, the indications that may be gathered from the preamble. In AIR 1961 SC 954 (Burrakur Coal Co. Ltd. v. Union of India) the Court held as follows (Paragraph 5) :--

'... .It is one of the cardinal principles of construction that where the language of an Act is clear, the preamble must be disregarded though, where the exact moaning of an enactment is not clear, the preamble may be resorted to to explain it.......'

In AIR 1965 SC 1296 (State of Rajasthan v. Mrs. Leela Jain) it was also held as follows (para 11):--

'......The preamble may, no doubt, be used to solve any ambiguity or to fix the meaning of words which may have more than one meaning, but it can, however, not be used to eliminate as redundant and unintended, the operative provisions of a statute.....'

The scope of the Act is wider than the objective declared by the preamble. It takes within its sweep survey and settlement work and partition of joint holdings as well.

12. As regards Statement of Objects and Reasons appended to a Bill, the Supreme Court in the case of Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC//19 IN THE SUPREME COURT OF INDIA 369 at 378 emphatically ruled it out as an aid to the construction of the statute. It was laid down as follows:--

'As regards the propriety of the reference to the Statement of Objects and Reasons, it must be remembered that it seeks only to explain what reasons induced the mover to introduce the Bill in the House and what objects he sought to achieve. But those objects and reasons may or may not correspond to the objective which the majority or members had in view when they passed it into law. The Bill may have undergone radical changes during its passage through the House or Houses, and there is no guarantee that the reasons which lead to its introduction and the objects thereby sought to be achieved have remained the same throughout till the Bill emerges from the House as an Act of the legislature, for they do not form part of the Bill and are not voted upon by the members. We, therefore, consider that the Statement of Objects and Reasons appended to the Bill should be ruled out as an aid to the construction of a statute.'

In the case of Central Bank of India v. Their Workmen, AIR 1960 SC 12 the Court reiterated the principle and held as follows (at p. 21):--

'......The statement of objects and reasons is not admissible, however, for construing the section; far less can it control the actual words used........'

In the case of State of West Bengal v. Union of India, AIR 1963 SC 1241 at 1247 the Court held:--

'........It is however well settled that the Statement of Objects and Reasons accompanying a Bill, when introduced in Parliament, cannot be used to determine the true meaning and effect of the substantive provisions of the statute. They cannot be used except for the limited purpose of understanding the background and, the antecedent state of affairs leading up to the legislation......'

13. It is not necessary in the present case to call in aid the preamble or the Statement of Objects and Reasons. The plain language used in Section 4(4) makes it abundantly clear that a suit for declaration of rights or interest in respect of both agricultural and non-agricultural land which takes within its sweep partition of homestead lands has to abate.

14. Definition of the term 'consolidation' given in Section 2 (f) was amended by Orissa Act 31 of 1979 by substituting the words 'parcels of land'. After amendment the definition stands as follows:--

'Section 2 (f). 'Consolidation' means amalgamation and re-distribution of a parcel or parcels of land comprised in different holdings of a unit for the purpose of rendering such holdings more compact;

Explanation--For the purpose of this clause, holding shall not include the following:--

(i) Lands which are covered by orchards, groves or homesteads by the date of publication of a notification in the official gazette under Sub-section (1) of Section 6;

(ii) xxx xxx xxx (iii) Such other areas as the Directorof Consolidation may declare to be unsuitable for the purpose of consolidation; xxx xxx xxx.'

After omitting the expression 'agricultural land' from the definition, the words or 'homestead' were inserted in Explanation (i) by Orissa Act 31 of 1979. This only indicates that homestead lands will not be subjected to consolidation; but since proceedings could be started under the Act in respect of homestead lands for preparation of village Maps and Land Registers and partition of joint holdings, a suit pending in the Civil Court for declaration of rights or interest in respect of those lands must abate.

15. My conclusions, therefore, are-

(i) homestead land is liable to partition under the Act, and

(ii) a suit for declaration of rights or interest in respect of a homestead land shall abate upon publication of a notification under Section 3(1) of the Act.

The decisions of Hon'ble R.N. Misra, J. (as he then was) in Abhimanyu Panda v. Digambar Beura (1976-42 Cut LT 400) and Hon'ble S. Acharya, J. in Musa Jena v. Panu Charan Naik, (AIR 1980 Orissa 183) which have taken a different view do not, in my opinion, represent the correct law and I overrule the same.

16. In the result, the suit and the appeals stand abated. The judgment and the decree passed in the suit are vacated. It is open to the parties to work out their rights before the appropriate consolidation authorities. With this observation the appeals are disposed of as abated. Parties to bear their own costs throughout.

Behera, J.

17. While agreeing with my learned brother that a suit also in respect of homestead land shall abate under Section 4(4) of the Act, I would record some reasons in support of the conclusion.

18. The legislature has defined 'agricultural land', 'consolidation' and 'land' in Section 2 of the Act, The definition of 'land', as can be found in Section 2 (o) of the Act, reads:--

' land' means land of whatever description'.

In the statute, these expressions have been used designedly and for definite purposes. When a statute is clear with regard to the provisions made therein, the Court may not take resort to the preamble or to the Statement of Objects and Reasons as a guide to interpret any provision thereof. The most important pointer to determine as to whether a suit in respect of the homestead land covered by the definition of 'land' shall also abate upon the publication of the notification issued under Sub-section (1) of Section 3 of the Act would be found in Section 4 itself. While in Sub-section (2) of Section 4, prohibiting transfer, the expression 'agricultural land' has been used, the Legislature has used the words 'any land' in Sub-section (4) thereof which provides for abatement of suits and proceedings for declaration of any right or interest pending before any civil court, whether of the first instance or appeal, reference or revision. If the intention of the Legislature was that the abatement would be in respect of 'agricultural land' only, it would have provided in Sub-section (4) that the suits and proceedings only in respect of 'agricultural land' would abate. As pointed out earlier, 'land' under the Act means land of whatever description. Even if the word 'any' had not been used in Section 4(4), the expression 'land' would have meant land of whatever description and would have thus brought within its purview homestead land as well. The expression 'any land' has been used in Section 4(4) of the Act and this makes the position clearer. The Legislature has not provided that only suits and proceedings for declaration of any right or interest in 'agricultural land' as defined in the Act or in respect of the lands which are covered, under the definition 'consolidation' would abate. It cannot be said that the expression 'any land' in Sub-section (4) would be subject to or controlled by the expression 'agricultural land' or 'consolidation'. The intent of the Legislature is absolutely clear that the suits and proceedings for declaration of any right or title in any land and not only in respect of agricultural land or lands which are consolidable would abate. The legal and logical interpretation of the expression 'any land' in Subsection (4) of Section 4 of the Act would be land of whatever description including homestead land.

19. While in Sub-section (4) of Section 4 of the Act, provision has been made for abatement of suits and proceedings, Section 51 of the Act provides for the bar of jurisdiction of civil courts. It is important to note that in that section as well, the expression 'any land' lying in the consolidation area has been used. One section provides for abatement of suits and proceedings and the other provides for the bar for jurisdiction of the civil courts and in both the sections, the expression 'land' and not 'agricultural land' has been used. When the expressions 'agricultural land' and land' have been defined under the Act and in some provisions, the expression 'agricultural land' and in some other, the expression 'land' has been used, the court has to adopt the definitions of those expressions provided in the Act and cannot read into the definition of either of these expressions something which has not been provided therein.

20. No rule of construction would require that when a word of one part of a statute conveys a clear meaning, it would be necessary to interpret another part of a statute for the purpose of controlling or diminishing the efficacy of that part. I say this because what has been clearly conveyed in Section 4(4) of the Act cannot be controlled by any other part nor can the efficacy of this provision be affected by the other provisions of the Act using the words 'agricultural land' or 'consolidation'. The Act contains provisions not only in respect of land which can come under consolidation or in other words, which is consolidable, but also land, other than the varieties of lands covered by 'consolidation'. No doubt, every clause of a statute is to be construed with reference to the context and other provisions of the Act to make a consistent and harmonious meaning of the statute relating to the subject-matter. But when the Act has provided for consolidation of certain varieties of lands and has also provided for the abatement of suits and proceedings in the civil courts in respect of land of whatever description, the interpretation of the word 'land' occurring in Section 4(4) adopted by us would certainly not affect the harmonious construction or consistency of different provisions of the Act.

21. As a general principle of interpretation, where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence, such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words. It is only where the statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning that external evidence as to the evils, if any, which the statute was intended to remedy, or of the circumstances which led to the passing to the statute may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question. If the precise words used are plain and unambiguous, they are bound to be construed in their ordinary meanings. (See Anandji Haridas & Co. Pvt. Ltd. v. Engineering Mazdoor Sangh, AIR 1975 SC 946 and Nasiruddin v. State Transport Appellate Tribunal, AIR 1976 SC 331).

If the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. When two interpretations are feasible, that which advances the remedy and suppresses the evil as the Legislature envisioned must find favour with the court. (See Carew and Company Ltd. v. Union of India, AIR 1975 SC 2260). Ordinarily, a court cannot cut down the definitional amplitude given in a statute. (See State of West Bengal v. Sudhir Chandra Ghose AIR 1976 SC 2599). It would not be just and proper, therefore, to cut down the amplitude of the expression 'any land' in Section 4(4) of the Act by saying that in accordance with the other provisions of the statute, this can only mean agricultural land or land which can be consolidable although one cannot be oblivious of the well settled rule of interpretation that the court is entitled and indeed, bound when construing the terms of any provision in a statute, to construe any other part of the Act which throws light on the intention of the Legislature and it may show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act. It is well settled that a statutory provision cannot be interpreted in a way which defeats the very object of the Act. It is equally well settled that the Legislature does not waste words or introduce useless or redundant provisions. (See Balabhagas Hulaschand v. State of Orissa, AIR 1976 SC 1016).

22. In Heckett Engineering Co. v. Their Workmen. AIR 1977 SC 2257, it has been observed (at p. 2261):--

'.........It is well settled, rule of construction that the language of a provision or a rule should not be construed in a manner which would do violence to the pharaseology used therein.'

The normal rule of interpretation is that the words used by the Legislature are generally a safe guide to its intention. No principle of interpretation of statutes is more firmly settled than the rule that the court must deduce the intention of the Legislature from the words used in the Act. It has been laid down in Union of India v. Majur Mahajan Mandal, AIR 1977 SC 714 that when there is no ambiguity in the words used in the Act, recourse to the aim and object of the Act is not called for. In AIR 1978 SC 897 (Polester and Co. Ltd. v. Addl. Commr. of Sales Tax, New Delhi), the Supreme Court has laid down (at pp. 904 and 908):--

'Now, if there is one principle of interpretation more well settled than any other, it is that a statutory enactment must ordinarily be construed according to the plain natural meaning of its language and that no words should be added, altered or modified unless it is plainly necessary to do so in order to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute.

xx xx xx xx If the language of a statute is clear and explicit, effect must be given to it, for in such a case the words best declare the intention of the law giver. It would not be right to refuse to place on the language of the statute the plain and natural meaning which it must bear on the ground that it produces a consequence which would not have been intended by the legislature. It is only from the language of the statute that the intention of the Legislature must be gathered, for the legislature means no more and no less than what it says. It is not permissible to the Court to speculate as to what the Legislature must have intended and, then to twist or bend the language of the statute to make it accord with the presumed intention of the legislature.......'

The proof of legislative intention can best be found in the language which the Legislature uses. Ambiguity can undoubtedly be resolved by resort to extraneous aids. (See Gurbaksh Singh Sibbia v. State of Punjab AIR 1980 SC 1632).

23. As has been laid down by the Supreme Court in State of Andhra Pradesh v. Mohd. Ashrafuddin AIR 1982 SC 913, if the definition of the term is couched in clear and unambiguous language, the court has to accept it as it stands. When the terms of the definition are clear and unambiguous, there is no question of taking extraneous aid for construing it. In the instant case, as the definition of the term 'land' in the Act is clear and is not ambiguous, the term used must be accepted as it is.

24. As earlier said, the terms of Section 4(4) of the Act are clear and unambiguous. It would, not be permissible, therefore, to delve into the preamble and the Statement of Objects and Reasons and take them in aid to interpret the expression 'any land' occurring therein. This expression must take in its purview land of whatever description including homestead land as clearly defined in the statute and this interpretation would admit of no doubt in view of the clear legislative intent embodied in Section 4(4) of the Act for abatement of a suit or proceeding in respect of 'any land' and not only in respect of 'agricultural land'.

25. The appeals which pend before us shall, therefore, abate.


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