1. The point for consideration in this reference is as to whether under the provisions of the J. & K. Consolidation of Holdings Act, 1962, hereinafter to be referred to as 'the Act', all suits could be disposed of by the Authority under the said Act, once it was transferred to that Authority under section 5 of the Act irrespective of the nature of the dispute or disputes raised in the suit.
2. Under the provisions of the Act in terms of Section 5, all suits for declaration of rights and interests over land, both proprietary and tenancy, etc., etc., were required to be transferred to the Consolidation Authority for disposal under and in accordance with the provisions of the Act and the Rules made thereunder. For the sake of facility Section 5(b) is reproduced hereunder : -
'(b) all proceedings for correction of records and all suits for declaration of right and interest over land, both proprietary and tenancy, or for possession of land, or for partition, pending before any authority or Court whether of first instance, appeal, or reference or revision, shall stand transferred to the consolidation authorities for disposal under and in accordance with the provisions of this Act and the rules made thereunder.'
The words 'for disposal under and in accordance with the provisions of this Act and the Rules made thereunder' occurring in the aforesaid sub-section was considered by the learned Judges constituting the Division Bench to be of great importance and in their opinion Section 5(b) of the Act was to be interpreted with a view to find out the exact extent of jurisdiction of the Authority under the Act to decide the disputes.
3. This question had arisen in the following manner :
In suits based on right of prior purchase pending before a Civil Court an order Under Section 5(b) of the Act was made by it and the suits were transferred to the Authority under the Act. The authority under the Act decided the suits finally, and passed decrees for right of prior purchase against the appellants herein. The appellants filed three writ petitions against the three decrees passed by the Authority under the Act against him. The three writ petitions came to be decided by a learned Single Judge of this Court on 17-11-1977 by a common judgment whereby he dismissed the writ petitions and held that the Authority under the Act had the jurisdiction to decree the suits based on right of prior purchase. Aggrieved by the order of the learned single Judge, the appellants filed these three Letters Patent Appeals in this Court. These are Nos. 22, 24 and 25 of 1977. In all these three appeals a reference has been made by the Division Bench as stated above. We are required to consider in this reference the ambit and scope of Section 5(b) of the Act and to consider as to whether the Authority under the Act can decide a dispute or disputes irrespective of its nature and what does the words 'for disposal under and in accordance with the provisions of this Act and the Rules made thereunder' connote. .
4. We have heard the learned counsel for the parties at length.
5. Mr. Gupta appearing for the appellants has contended before us that the purpose of the Act was to achieve consolidation of holdings and to save fragmentation of holdings in an area which was brought under its purview. He has invited our attention to the various provisions of the Act. The preamble of the Act provides that consolidation of agricultural holdings in Jammu and Kashmir is to be made for the development of agriculture. According to Mr. Gupta the only purpose for consolidation of agricultural holdings is to develop agriculture in the State. In terms of Chapter II of the Act which begins from Section 4 a declaration is to be made by the Government which is to be published for making a scheme of consolidation for any District or part thereof. The Settlement Officer, Consolidation was to maintain the records of rights for the area which was under consolidation operation. The said officer was to prepare the estate map, the Khasra Girdawari, the Jamabandi and other annual records. When a particular district or part thereof is brought under consolidation operation all proceedings for correction of records and all suits for declaration of rights and interests, etc., etc., are to be transferred to the Consolidation Authorities. Estate map, Khasra Girdawari, the Jamabandi are to be revised and prepared afresh before a provisional consolidation scheme for a unit is prepared. After the correction is made in the Girdawari and Jamabandi a notice is given to the tenure holders concerned and to the persons interested for filing objections, if any, within thirty days from the date of receipt of the notice, in respect of correctness or otherwise of the entries. After receiving the objections or if no objections are received, consolidation Naib Tehsildar is required to settle the disputes, entries and mistakes after' such enquiries as he may consider necessary. First he has to make an attempt of conciliation between the parlies appearing before him. The disputed cases are to be sent to the consolidation Tehsildar who after notice to the concerned is required to hear them and take such evidence as he may consider necessary. He is to make an order on the correction of the annual records. An aggrieved person has a right of appeal. The revised records are to be published. Land revenue is required to be assessed afresh. Provision is to be made for partition of joint holdings. Under the scheme plots of two or more tenure holders can be amalgamated.
6. In Chapter III a consolidation scheme is required to be prepared. The Consolidation of holdings is to be then made on the valuation of the plots, valuation is to be determined in consultation with the consolidation committee after taking into consideration productivity, availability of irrigation facilities, if any, and location of the plots. Area of holding proposed to be allotted to the tenure-holders is also for trees, walls, and other improvements. In the scheme itself valuation of each plot, valuation of trees, wells and other improvements is to be mentioned, A statement is then to be prepared showing the area under consolidation, area excluded from consolidation, land revenue, or rent of each holding, total area and total valuation of each holding and such other particulars as may be prescribed. The statement when prepared is to be published and those who dispute its correctness have a right to file objections against it and after the disposal of objections the aggrieved person has a right of appeal also. Then the statement of principles (sic) of the scheme is to be confirmed and published. After that statement of proposal is to be prepared and a detailed procedure for preparation thereof is given. The object of preparation of proposals is also to achieve consolidation and prevent fragmentation of holdings.
7. Under Chapter IV of the Act, the scheme prepared is to be enforced, possession of new plots can be delivered to the tenure-holders, compensation for standing crops also is to be provided. Chapter V generally deals with powers of various authorities under the Act. The hierarchy of officers under the Act is headed by the Director of Consolidations. Section 57 of the Act provides bar to Civil Court's jurisdiction. All disputes decided under the Act and anything done in accordance with the Act is not to be challenged in a civil or revenue courts by way of any proceeding. No civil Court can entertain a proceeding with respect to rights in such lands or with respect to any other matters for which a proceeding could or ought to have been taken under this Act.
8. We have taken pains to go through the scheme of the Act and make a mention of it briefly. The various provisions of the Act do provide decisions by consolidation authorityon certain matters which are germane for the consolidation of holdings and which are not considered as being impediment in achieving the purpose of the Act. Therefore, the contention of Mr. Gupta that suits for right of prior purchase or some other disputes are not the disputes which are required to be disposed of under the Act and the Rules framed thereunder cannot be said to be without substance. Section 5(b) of the Act casts an obligation on all courts to transfer proceedings pending before it to the consolidation Authority which pertains to the matters mentioned in the said section. After the proceedings are transferred the said Authority has the competence to deal with the land involved in the said dispute for purposes of achieving consolidation under the Act. In connection with achieving the purpose of the Act, it can decide disputes for declaration both proprietary and tenancy (sic) for possession and partition under the provisions of the Act and in accordance with the Rules framed thereunder. There are, however, some categories of disputes which are not to be decided by the Authorities under the Act in accordance with the Act or the Rules framed thereunder. These disputes by way of illustration may be enumerated as under : --
i) disputes on the basis of right of prior purchase Under Section 14 of the Right of Prior Purchase Act;
ii) disputes about the validity of a document which creates or extinguishes right in immovable property;
iii) disputes regarding status of a man so as to claim inheritance and after that claim possession of property;
iv) disputes regarding existence or non-existence of a custom which has the effect of changing the course of inheritance as given in the personal law;
v) disputes regarding validity of a will in which testator's competence to execute the will and his mental status is required to be enquired;
vi) disputes where vested interest and the remainder is to be determined in accordance with a well recognized custom;
The instances cited above are only illustrative and not exhaustive. Under none of the provisions of the Act, Authorities under the Act have jurisdiction, competence, or power to decide under and in accordance with theprovisions of the Act any of the disputes enumerated above, or such other like disputes. Of course the land involved in such disputes may be brought under the consolidation scheme and may be made subject-matter of consolidation of holding but the dispute raised about the said land cannot be decided in accordance with the Act or the Rules made thereunder. No provision of the Act empowers the Authorities under the Act to determine disputes of complicated nature nor such disputes where validity of a document is involved. Such disputes are to be referred back to the civil Court for determination after the consolidation operation is over. Civil courts have an obligation to transfer all proceedings mentioned in Section 5(b) of the Act pending before it to the Authorities under the Act but on receipt of these proceedings it is the duty of the Authorities under the Act to scrutinize the nature of the disputes and the extent of their power in relation to the said disputes. After the scheme of consolidation is over, these matters are required to be sent back to the civil Courts for proper adjudication because these cannot be adjudicated in accordance with the provisions of the Act or the Rules framed thereunder. However, it is to be noted that the scheme of consolidation undertaken for a District or part thereof is not to be impeded or hampered, therefore, for the purpose of preparation of records maps and for purpose of achieving the object of the Act, holding involved in such disputes can be dealt with by the Authorities under the Act but the dispute as such cannot be adjudicated by them. The dispute is to be referred back to the Civil Court for adjudication.
9. Learned counsel for the respondents has submitted a few authorities which need a brief mention.
10. Chattar Singh v. Thakur Prasad Singh, AIR 1975 SC 1499 is an authority based on U. P. Consolidation of Holdings Act. Under the provisions of that Act when the notification is published under the said Act for consolidation operations, suits and appeals pending before the courts gel abated. This authority in turn was based on an earlier authority of the Supreme Court; viz. Ram Adhar Singh v. Ram Saroop Singh, AIR 1968 SC 714. Section 5 of the U. P. Consolidation of Holdings Act of 1953 us amended in 1966was discussed by their Lordships. By the amended section it was provided that all disputes pending in any Court or before any authority will abate during the consolidation proceedings. However, such abatement was held to be without prejudice to the rights of the persons affected to agitate the right or interest in the said suit or proceedings before the appropriate consolidation officer. Their Lordships have not further said that if a person agitates a dispute before an Authority under the Consolidation Act, and if [he said dispute is not to be decided in accordance with the provisions of the said Act. what will be the remedy in such a case.
11. In Mala Hamza v. Mohd. Maqbool, 1976 JKLR 513 : (AIR 1977 J & K 51) a Division Bench of this Court while confirming the judgment of a learned single Judge has held that Section 5(b) of the Act provides transfer of pending disputes from revenue and Civil Courts to the Consolidation Authorities and the Consolidation Authorities have the competence to decide such disputes. In the said case the Revenue Minister was dealing with the revision petition Under Section 30(6) read with Section 35 of the Big Landed Estates Abolition Act. The learned single Judge had held that the said revision petition was not to be decided by the Minister for lack of jurisdiction, which was vested in the Authority under the Act. The arguments which have been advanced in the present case were not at all advanced in the said case. The learned Judges constituting the Division Bench were considering the effect of the Act vis-a-vis the provisions of the Big Landed Estates Abolition Act. As to which of the two Acts had the precedence was the main argument advanced in the said case. So far as the facts of the said case are concerned, the law laid down therein would apply to the facts of that case. Their Lordships have not considered further as to which are the suits which are required to be decided in accordance with the provisions of the Act and the Rules framed thereunder. The tenant had raised a dispute about the ceiling area of his Lordship (landlord) and about his rights under the pro visions of the Big Landed Estates Abolition Act. Such disputes, in our opinion, could be decided by the Authorities under the Act. But in the present case we are concerned with a different kind of dispute over which provisionsof the Act are not applicable. Therefore, this Division Bench authority viz. 1976 JKLR 513 : (AIR 1977 J & K 51) (supra) is not applicable to the facts of this case.
12. Under Section 57 of the Act jurisdiction of Civil Courts is barred in respect of matters which are to be decided by the Authorities under the Act. This bar will come into play if a dispute which is to be decided by the Authorities under the Act in accordance with the provisions of the Act is brought before the Authority or is transferred to it; otherwise the bar on the civil Court's jurisdiction will not operate. Therefore, in the matters which are exclusively triable or which can exclusively be decided by the Authorities under the Act, a civil Court cannot have jurisdiction to entertain any dispute in respect of those matters. Therefore, it is necessary to consider as to whether the Authority under the Act has any power or competence to decide a dispute of the nature enumerated hereinabove. If it has no jurisdiction to decide such a dispute obviously civil Court's jurisdiction will not be barred. For examining the rigor of Section 57 of the Act one has to consider the extent of jurisdiction of the Authority under the Act exercisable by it under the said Act.
13. In our opinion the words ''shall stand transferred to the consolidation Authorities for disposal under and in accordance with the provisions of this Act and the Rules made thereunder' are very important and cannot be lost sight of. The Authorities under the Act are vested with the powers to decide disputes for giving effect to the various provisions of the Act and for implementing various provisions of the Act. They obviously cannot decide every kind of dispute which do not fall within the ambit of Section 5(b) of the Act. From a close scrutiny of the various provisions of the Act, it will be revealed that disputes which are related to the revision, correction of maps, and revenue records and preparation or enforcement of consolidation scheme were disputes conceived by the legislature to be cognizable by the Authorities under the Act. Such disputes may involve declaration regarding proprietary or tenancy rights or even may affect possession of a tenure-holder. But other disputes which have no relation with the various provisions of the Act and which are not disputes which are required to be settledfor purposes of giving effect to the various provisions of the Act or for implementing the various provisions of the Act are not disputes to be tried by the Authorities under the Act. We have pointed out briefly the scheme of the Act with a view to show that the object of the Act was to achieve consolidation of holdings for development of agriculture. Therefore, various steps at various stages are required to -be taken under the Act. The initial stage being preparation of maps and revenue records. While giving effect to the various provisions of the Act, it is likely that holdings of tenure-holders are to be amalgamated or they are to be bifurcated into compact whole. As a consequence of this proprietary right, tenancy rights, right of possession are likely to be affected which are to be determined in accordance with the provisions of the Act. The object being to give effect to the provisions of the Act. Suits of the nature which we have enumerated above, therefore, cannot be tried or decided by any Authority under the Act, as such all disputes cannot be decided under and in accordance with the provisions of the Act. That being so, a suit based on right of prior purchase cannot be tried or decided by an authority under the Act. However, the Authority may deal with the land involved in such suits for purposes of preparing of consolidation scheme and for purpose of implementing the scheme and once that is done, the Authority has to refer the said dispute back to the civil Court for determination thereof. This will be true of the disputes of some other nature which we have illustrated hereinabove. Consequently bar created Under Section 57 of the Act in respect of civil Court's jurisdiction will not be operative in respect of disputes which are not triable or cognizable by an authority under the Act and a dispute based on right of Prior Purchase Act will be one such dispute. From the perusal of Section 57 of the Act, it appears that Civil Court's jurisdiction is barred only in respect of those matters of: the Act before an Authority under the Act. Consequently a dispute which was not required to be taken before the Authority under the Act or which could not be decided in accordance with the provisions of the Act would not be hit by the provisions of Section 57 of the Act.
14 For the purpose of re-arranging theland holdings amongst several owners and tenants in the area where consolidation operation is conducted, all lands whether they are subject-matter of a dispute pending before a Civil Court or a revenue Court are to be taken in hand and pendency of proceedings would not affect the preparation and implementation of consolidation scheme. But the disputes which cannot be decided in accordance with the provisions of the Act such as disputes based on right of prior purchase will not be decided by the Authorities under the Act. In our opinion provision for transferring the pending cases from civil and revenue courts have been made with the purpose that pendency of such suits before the civil and revenue courts should not stand in the way of consolidation Authorities for giving effect to the Act. Once the cases are transferred to such Authorities they will take cognizance of those cases which are triable under the Act and return the rest which are not triable under the Act. But the implementation of the scheme or the preparation of the scheme cannot in any manner be affected by not arriving at a decision on merits of a controversy which is not to be decided in accordance with the Act. After the scheme is implemented it is for the parties before the competent civil Court or revenue Court to show as to how the lis brought by him before it survives and in what manner it can be decided and the civil or revenue Court having regard to the provisions of the Act will decide the matter in controversy.
15. Therefore, our answer to the reference is that all cases falling Under Section 5(b) of the Act pending before the Courts are required to be transferred to the Authorities under the Act. After receipt of the cases the Authorities under the Act can deal with the lands involved in the said cases for purposes of giving effect to the Act and for purposes of implementing the scheme of the Act. Any dispute which can be decided under and in accordance with the provisions of the Act shall have to be decided by the Authorities under the Act but the dispute based on the right of prior purchase shall have to be referred back to the civil Court after the implementation of the Scheme and after the provisions of the Act have been given effect to. Disputes regarding right of prior purchases and some other disputes enumeratedby us above by way of illustration are not the disputes which are to be decided by the Authorities under the Act. Consequently bar created by Section 57 of the Act will not apply to such kind of disputes. The reference is answered accordingly.
16. The appeals shall be now placed before the Division Bench for further proceedings.