William Broome, J. - (1.) This writ petition, filed in December 1969, challenges an order passed by the Board of Revenue on 20 -11 -1969, directing that a second appeal arising out of the suit filed by the petitioner, for the ejectment of the contesting respondents u/S. 202(b) of the UP ZA and LR Act as Asamis of the disputed land should abate along with the suit. The aforementioned suit was filed by the petitioner on 31 -7 -1952. It was dismissed by the Asstt. Collector on 16 -12 -1952 but was decreed in appeal by the Addl. Commr. on 13 -1 -1955. The opposite -parties thereupon filed a second appeal before the Board of Revenue which remained pending for some years. Meanwhile, the village in question was brought under consolidation operations by means of a notification u/S. 4 of the U.P. Consolidation of Holdings Act in the year 1959; and those operations were concluded with a notification u/S. 52 of the Act in 1964. The disposal of the second appeal was delayed by substitution proceedings and when it eventually came up for hearing in 1969 the Board held that it must be taken to have abated under the provisions of S. 5 of the Consolidation of Holdings Act, as amended by U.P. Act XXI of 1966.
(2.) Upto 1966 S. 5 of the Consolidation of Holdings Act contained the following provisions: 5(b)(i) All proceedings for correction of the records and all suits for declaration of rights and interests over land, or for possession of land, or for partition pending before any authority or court, whether of the first instance, appeal, or reference or revision, shall stand stayed, but without prejudice to the right of the persons affected to agitate the rights or interests in dispute in the said proceedings or suits before the consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder; (ii) the findings of consolidation authorities in proceedings under this Act in respect of such rights or interests in the land, shall be accepted by the authority or court before whom the proceedings or suit was pending which may, on communication thereof by the parties concerned proceed with the proceeding or suit, as the case may be. But U.P. Act XXI of 1966 substituted for the above provisions the following: 5(2) Upon the said publication of the notification u/sub -S. (2) of S. 4 the following further consequences shall ensue in the area to which the notification relates namely - - (a) every proceedings for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order passed in this behalf by the court or authority before whom such suit or proceeding is pending stand abated: (b) such abatement shall be without prejudice to the right of the person affected to agitate the right or interest in dispute in the said suit or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder.
(3.) In the present case, it is to be noted, the consolidation proceedings had come to a close with the notification u/S. 52 in the year 1964, i.e., before S. 5 of the Consolidation of Holdings Act was amended in 1966. The question that calls for decision in this case therefore is whether the amended provisions of S. 5 of the Act would be applicable or whether the case should be governed by the provisions of S. 5 as it stood before the amendment. Having heard learned counsel for the parties, I am satisfied that the amended S. 5(2)(a), which provisions for abatement of pending suits in respect of a declaration of rights or interest in land lying in the area under consolidation, must be held to be inapplicable in cases where the consolidation had already terminated before the Sec. was amended; for if the contrary view is taken Cl. (b) of S. 5(2) which safeguards "the right of the person affected to agitate his right or interest in dispute in the suit or proceedings before the appropriate consolidation authorities", becomes meaningless in such cases, as the person concerned would obviously not be able to seek relief from the consolidation authorities when they have already ceased to function. An attempt has been made to argue that this anomaly can be avoided by giving effect to S. 52(2), according to which the consolidation operations may be deemed not to have been closed in certain circumstances. But that Sec. can only be invoked to give effect to orders passed in writ petitions or in "cases or proceedings pending under this Act on the date of issue of the notification u/sub -S. (1)." In the present case no order that could be given effect to has been passed in any writ petition, nor was any proceeding under the Consolidation of Holdings Act pending on the date when the notification u/S. 52(1) was issued. Learned counsel for the respondent argues that the petitioner could apply to the consolidation authorities for the respondent's ejectment u/S. 28 of the Act; but even assuming that to be possible such an application would be a fresh proceeding, not a proceeding pending on the date of the notification u/S. 52(1).;