B.D. Gupta, J. - (1.) This petition under Article 226 of the Constitution has come up before us in pursuance of an order of reference passed by a learned single Judge on the ground that the view taken in Smt. Tasidiqui v. State, Civ. Misc. Writ No. 3195 of 1959. Decided on 13.1.1960. decided by this Court that rule 106 of the rules under the U.P. Consolidation of Holdings Act was ultra vires, required reconsideration.
(2.) It appears, that during proceedings under the U.P. Consolidation of Holdings Act, hereinafter referred as the Act, the petitioner filed an objection under Section 12 of the Act which was forwarded to the Civil Judge for reference to an arbitrator on the view that it involved a question of title. Considerably long thereafter, on the 24th January, 1959, the Civil Judge took the view that the reference was bad on the ground, that no question of title was involved, and sent the matter back to the Consolidation Officer. Meanwhile, proceedings before the Consolidation authorities had reached an advanced stage, and statement of proposals, under Section 19 of the Act, had also been published. In Clause (2) of Section 20 of the Act it is provided that any person likely to be affected by the proposals may file his objections within 15 days from the date of the publication of the proposals under Section 19. The order of the learned Civil Judge dated the 24th January, 1959, appears to have been passed long after expiry of the 15 days period provided by Clause (2) of Section 20, and the petitioner had not filed any objections to the statement of proposals under Section 19 because the controversy raised by him had been forwarded to the Civil Judge for reference to an arbitrator and was, therefore, pending in that court. After the reference to the civil Judge had been received back by the Consolidation authorities, the petitioner filed objections under Clause (2) of Section 20 of the Act. These objections were accompanied with an application praying for condonation of the delay that had taken place. This application was founded on Rule 106 of the Rules framed by the Local Government in exercise of its powers under Section 54 of the Act. This rule had been added, to a large number of rules already framed, by notification dated the 3rd December, 1957, and ran as follows:- "The provision of Section 5 of the Indian Limitation Act, 1908, shall apply to applications, appeals and proceedings under the Uttar Pradesh Consolidation of Holdings Act, 1953." By an order dated the 18th of January, 1960, the Consolidation Officer condoned the delay and directed the objections to be sent to the Assistant Consolidation Officer for report. Against this order opposite-party No. 2 filed an appeal before the Settlement Officer, Consolidation, who, by order dated the 10th February, 1960, took the view that, though the order of the Consolidation Officer condoning delay appeared to be just, no appeal lay against such an order, and dismissed the appeal. Thereafter opposite-party No. 2 went up to the Deputy Director, Consolidation, by way of revision under Section 48 of the Act. Reliance was placed before the Deputy Director on the decision of a learned single Judge of this Court, in Srimati Tasidiqui v. State, Civ. Misc. Writ No. 3195 of 1959. Decided on 13.1.1960 wherein it was held that Rule 106 of the Consolidation of Holdings Act was ultra vires on the ground that the State Government had no power, under Section 54 of the Act, to make any rule applying the provisions of the Limitation Act to proceedings under the Consolidation of Holdings Act. The Deputy Director followed the decision of this Court in Smt. Tasidiqui v. State, Civ. Misc. Writ No. 3195 of 1959. Decided on 13.1.1960 and held that the Consolidation Officer had no jurisdiction to condone the delay. Without going into any other question the Deputy Director allowed the revision and set aside the order of the Consolidation Officer on the ground that objection under Clause (2) of Section 20 were barred by time and must, therefore, be rejected. The petitioner thereafter filed this petition under Article 226 of the Constitution. Learned counsel for the petitioner has urged before us that the decision of this Court in the case of Smt. Tasidiqui v. State, Civ. Misc. Writ No. 3195 of 1959. Decided on 13.1.1960 is incorrect. He has relied on sub-clause (z) of Clause (2) of Section 54 of the Act which lays down what the rules may provide for. Sub-Clause (z) runs as follows:- "The application of the provision of the Indian Limitation Act, 1908, to applications, appeals and proceedings under this act." He has contended that this provision makes it amply clear that the Legislature itself invested the State Government with the specific power of framing a rule or rules providing for the application of the provisions of the Indian Limitation Act to application, appeals and proceedings under the Act. Learned counsel contended that the attention of the learned Judge, who decided the case of Smt. Tasidiqui v. State, Civ. Misc. Writ No. 3195 of 1959. Decided on 13.1.1960 does not seem to have been invited to the aforesaid provision. We find force in this contention.
(3.) Sub-Clause (z) of Clause (2) of Section 54 was incorporated in the Act as originally framed, but was deleted by an Amending Act (U.P. Act XXXVIII of 1958) which came into force on the 27th of November, 1958. By this Amending Act Section 53-B, which substantially reproduced the provisions contained in Rule 106, was brought on the Statute book. Rule 106 was deleted by a notification of the U.P. Government dated April, 16, 1959, but there is no controversy that, in respect of the proceedings giving rise to this petition which had already commenced and were pending on the date on which the Amending Act XXXVIII of 1958 came into force, Rule 106 continued to be alive and available by virtue of Rule 112 (which was added by the same notification which deleted rule 106) read with Clause (ii) of Section 49 of the Amending Act XXXVIII of 1958.;