MAHBIR GADARIA Vs. THE DEPUTY DIRECTOR OF CONSOLIDATION AND ANOTHER
LAWS(ALL)-1965-3-26
HIGH COURT OF ALLAHABAD
Decided on March 08,1965

Mahbir Gadaria Appellant
VERSUS
The Deputy Director Of Consolidation And Another Respondents


Referred Judgements :-

MANGAL SINGH V. REGIONAL DEPUTY DIRECTOR OF CONSOLIDATION [REFERRED TO]


JUDGEMENT

K.P. Asthana, J. - (1.)THIS is petition under Article 226 of the Constitution filed by Mahabir Gaderia for quashing of an order dated 31.3.1960 passed by the Deputy Director of Consolidation in the purported exercise of his powers under Section 48 of the UP Consolidation of Holdings Act (hereinafter called the Act). It is not disputed that in the revenue papers the name of the Petitioner was recorded upto 1362 F. as Bhumidhar of the land in dispute. 1362 F. would correspond to the year 1955. Sometime in March 1955 a notification under Section 4 of the Act was issued bringing the land in dispute under consolidation operations. It appears that on 19.10.1955 Ram Sringar Ram, opposite party No. 2 to this petition filed a suit No. 1141 of 1955 for a declaration that he was the Sirdar of the land in dispute and for possession and injunction against the Petitioner. A compromise decree in the said suit was passed the same day, that is, on 19.10.1355. A certified copy of that compromise decree has been perused by me. It shows that on 18.10. 1955 the parties entered into an agreement by which the Petitioner who was the Defendant in that suit conceded the claim of Sirdari of the Plaintiff and agreed that the suit be decreed. Thus this circumstance shows that some sort of compromise was arrived at even before the presentation of the plaint in the court of the Munsif. The certified copy of the compromise decree in that suit further shows that the Petitioner was represented by a counsel who identified him. The Petitioner in his affidavit filed in support of this petition has averred that he never entered into any compromise nor was he aware of any suit nor did he engage any counsel and that all the proceedings before the court of the Munsif were fraudulent. The Petitioner filed a suit No. 230 of 1956 in the court of the Munsif for cancellation of the decree passed in suit No. 1141 of 1955 on the ground that it was obtained fraudulently. This suit is still pending as it was stayed under the provisions of Sub -section (5) of Section 12 of the Act. Ram Sringar Ram the opposite party, having obtained the decree on 19.10.1955, as said above, appeared before the Assistant Consolidation Officer and on the strength of that decree got the entries in the revenue records over the land in dispute corrected. The result was that the Assistant Consolidation Officer entered the name of Ram Sringar Ram as Sirdar and that of the Petitioner in column number 9 as trespasser over the land in dispute. When the statement of tenure -holders was prepared under Section 11 of the Act the entries of the Petitioner's name was shown as that of a trespasser over the land in dispute. The Petitioner filed an objection under Section 12 of the Act to the effect that the entry made under Section 8(3) of the Act be corrected and he be recorded as the Bhumidhar in as much as the decree in civil suit No. 1141 of 1955 was without jurisdiction and obtained by fraud and was not binding. The Assistant Consolidation Officer submitted a report to the Consolidation Officer on the objection of the Petitioner to the effect that the objection involved a question of title. The Consolidation Officer however did not agree with this report and held that no question of title was involved in the objections raised by the Petitioner and called upon the parties to lead evidence. This order shows that the Consolidation Officer held that the decree in civil suit No. 1141 of 1955 was without jurisdiction as no suit could be filed by Ram Sringar Ram alter March 1955 when notification under Section 4 of the Act was issued and the entertainment of the suit by the Munsif being without jurisdiction a decree in that suit was ineffective and inoperative. Reliance was placed by the Consolidation Officer on the provisions of Section 49 of the Act. In the view which the Consolidation Officer took of the binding nature of the compromise decree in suit No. 1141 of 1955 he ordered that the entry be corrected and the name of the Petitioner be restored in the revenue papers as Bhumidhar and the name of Ram Sringar Ram be expunged. Being aggrieved by the order of the Consolidation Officer Ram Sringar Ram, opposite party, went up in appeal to the Settlement Officer, Consolidation. This appeal was dismissed and the order of the Consolidation Officer was maintained. Ram Sringar Ram then went up in revision under Section 48 of the Act. This revision was heard by the Deputy Director of Consolidation and it was allowed. The Deputy Director held that as the suit No. 1141 of 1955 in which the compromise decree was made had been filed and decided before the Statements under Section 11 of the Act were published the provisions of Section 49 of the Act were not attracted and the compromise decree was binding. The effect of the re -visional order of the Deputy Director was that the entries as recorded by the Assistant Consolidation Officer under Section 8 (3) were restored, that is, Ram Sringar Ram was to be shown as Sirdar, while the Petitioner as a trespasser over the land in dispute. The Petitioner has now come up before this Court under Article 226 of the Constitution.
(2.)I have heard Sri S.N. Singh for the Petitioner, Sri K.B. Garg for the Deputy Director of Consolidation opposite party No. 1 and Sri S.P. Mathur for Ram Sringar Ram opposite Party No. 2. After giving my due consideration to the argument addressed to me at the bar I have come to the conclusion that the impugned order of the Deputy Director of Consolidation deserves to be quashed. The main argument which was raised by the learned Counsel for the Petitioner was that the Deputy Director had exceeded his jurisdiction under Section 48 of the Act by reversing the findings of the Settlement Officer (Consolidation) on taking an absolutely wrong view of the law. It was in the alternative submitted that even if the view taken by the Settlement Officer and the Consolidation Officer that the provisions of Section 49 of the Act were applicable and Suit No. 11 -11 of 1955 could not be filed in the court of the Munsif could be said to be a mistaken view it would at best be a mistake of law on the part of those officers and it would not give rise to any jurisdictional error so as to be amenable to interference by the Deputy Director of Consolidation. On the other hand it was contended on behalf of the opposite parties that in coming to their conclusion the Settlement Officer and the Consolidation Officer having misinterpreted the provisions of law and on that misinterpretation having determined the rights of the parties, a jurisdictional error in the nature of an error apparent on the face of the record arose and the Deputy Director was justified in setting aside their orders in the exercise of his powers under Section 48 of the Act.
On the contentions of the respective parties the main question which falls for determination is whether the provisions of Section 49 of the Act are attracted and applicable from the date of the notification under Section 4 of the Act or from the date of the publication of the statement under Section 11 of the Act. Section 49 of the Act as it stood at the relevant time was as follows:

No person shall institute any suit or other proceeding in any civil or revenue court with respect to any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of this Act.

A plain reading of the above provisions does not indicate that the prohibition for instituting a suit or any proceeding in a civil or revenue court is imposed from the date when the statement Under Section 11 of the Act is published. A reference to Sub -section (5) of Section i2 was made in this connection by the learned Counsel for the opposite parties and it was urged that since those provisions intended the staying of a suit or proceeding after the publication of the statement Under Section 11 of the Act it should also be read in Section 49 of the Act that no suit or proceeding shall be filed after the publication of the statement Under Section 11 of the Act. I do not find any connection between the provisions of sub -Section (5) of Section 12 and those of Section 49 of the Act. There is nothing in the language of either of the provisions to show that one is dependent on the other or one is to be read in conjunction with the other. Once a notification Under Section 4 of the Act is issued subjecting any area under Consolidation proceedings all the matters relating to the correction of entries in the annual registers, that is, the revenue records are to be dealt with in accordance with the provisions of the Act. If in respect of any matter an application could be filed under the provisions of the Act then the institution of any suit or other proceeding in revenue court would be barred. It is the land which is the subject matter of consolidation in an area which is notified Under Section 4 of the Act. It follows, therefrom, that if in respect of any land any matter arises in regard to which an application could be filed under the provisions of the Act then for the determination of the same matter no suit or proceeding in civil or revenue court will be permissible. The land will be the subject matter of the operation of the provisions of the Act from the time when the notification Under Section 4 is issued. I have, therefore, no difficulty in holding that provisions of Section 49 become operative from the date when the notification Under Section 4 of the Act is issued. I am supported in this view of mine by the decision of D.S. Mathur, J. in the case of Mangal Singh v. Regional Deputy Director of Consolidation (1) (1960 AWR 503). To my mind the Deputy Director(Consolidation) fell into an obvious error when he held that Section 49 of the Act would not apply to any suit or proceeding instituted on a date prior to the date of the publication of the statement Under Section 11 of the Act. The view of the Deputy Director (Consolidation) is an untenable view and is not warranted by the law. In the exercise of his jurisdiction Under Section 48 of the Act the Deputy Director has, in my view, committed material illegality in as much as by an unwarranted interpretation of law he has arrived at an erroneous conclusion. Even if it be assumed that it were possible to take the view which the Deputy Director took in regard to the applicability of Section 49. of the Act, with equal force if not greater, it can be argued that the view taken by the Settlement Officer (Consolidation) was not wrong. That being so, there was no jurisdictional error in the order of the Settlement Officer (Consolidation) and the interference Under Section 48 of the Act by the Deputy Director was not justified.

(3.)I may take notice of a submission made by Sri S.P. Mathur on behalf of opposite party No. 2 to the effect that what is the effect of a notification Under Section 4 of the Act is given in Section 5 of the Act. Learned Counsel emphasised the provisions of Clause (b) of Section 5 and urged that only proceedings for the correction of the records pending before any court or authority is to be stayed and nothing more. On this basis the argument further was that a suit or any proceeding instituted in any civil court or revenue court for declaration of title or for possession or for injunction not being covered by clause (b) of Section 5 would be maintainable. This line of argument is not acceptable to me. Firstly, the learned Counsel in this submission of his ignores the effect of the provisions of Section 49 of the Act and secondly, Clause [b] of Section D in terms applies to pending proceedings on the date when a notification Under Section 4 comes into effect. It does not refer to any suit or proceeding which would be instituted after that notification comes into force. As to what would happen to any suit or proceeding instituted after the notification Under Section 4 is published is to be found out from the other provisions of the Act and not from Section 5 of the Act which is not exhaustive of all kinds of suits and proceedings.
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