Satish Chandra, J. - (1.) THIS is a petition Under Article 226 of the Constitution. It prays that the order of the Settlement Officer dated 15 -11 -1966 and of the Deputy Director, Consolidation dated 17 -3 -1966 be quashed.
(2.) DURING proceedings under the UP Consolidation of Holdings Act Respondents 4 to 8 filed objections claiming co -tenancy rights in the plots in dispute. The Consolidation Officer by his order dated 25 -8 -1965 allowed the objections. The Petitioners thereupon went up in appeal to the Settlement Officer, Consolidation. At the hearing of the appeal the Respondents raised a preliminary objection that the appeal was not maintainable because the village had been subjected to the notification Under Section 52 of the UP Consolidation of Holdings Act, 1953 which was published on 22 -5 -1965, a date when the proceedings were pending before the Consolidation Officer and when the appeal had not even been instituted. This objection prevailed and the appeal was deposited as being beyond jurisdiction. The Petitioners thereupon went up in revision to the Deputy Director Consolidation. There also he met the same fate. The Deputy Director held that he had no jurisdiction to decide the revision because of the publication of the notification Under Section 52 of the Act prior to the institution of the revision. This view is challenged in the present petition. In order to consider the validity of this view it is necessary to read Section 52: 52. Close of Consolidation operations. (1) As soon as may be after fresh maps and records have been prepared Under Sub -section (1) of Section 27, the State Govt. shall issue a notification in the Official Gazette that the consolidation operations have been closed in the unit and village or villages forming part of the unit shall then cease to be under consolidation operations: Provided that the issue of the notification under this section shall not affect the powers of the State Government to fix, distribute and recover the cost of operations under this Act. (2) Notwithstanding anything contained in Sub -section (1), any order passed by a court of competent jurisdiction in cases of writs filed under the provisions of the Constitution of India, or in cases or proceedings pending under this Act on the date of issue of the notification under Sub -section (1), shall be given effect to by such authorities as may be prescribed and the consolidation operations shall, for that purpose, be deemed to have not been closed. The proviso to Sub -section (1) and Sub -section (2) were added by Section 43 of the UP Amendment Act 8 of 1963 which came into force on 8 -3 -1963. Under Sub -section (2) orders passed by a court of competent jurisdiction in cases or proceedings pending under this Act on the date of issue of the notification under Sub -section (D) shall be given effect to by the authorities. The Settlement Officer and the Deputy Director have expressed the opinion that this will apply only to such individual case which was pending on the date of issue of the notification. In the instant case the objection was pending in the court of the Consolidation Officer. According to the authorities below, that was a case or proceeding which alone was pending and which came to an end when the Consolidation Officer decided it. The appeal filed by the Petitioners was a fresh case or a fresh proceeding and since it was not pending when the notification Under Section 52(1) was published, it would not be a "case or proceeding" pending on the date of issue of the notification and shall not be covered by Section 52. The court hence had no jurisdiction to entertain such a case or proceeding.
(3.) I am not satisfied that the view that cases or proceedings mentioned in Sub -section (2) refer to individual cases or proceedings which may be pending in a particular court on the date of issue of the notification is sound. In my opinion the term 'proceeding' has been used in a compendious sense so to include appeals. In Garikapati v. Subbiah Choudhry : AIR 1957 SC 540 S.R. Das, C.J. speaking for the majority of the Supreme Court laid down certain apposite propositions of law. His Lordship observed in paragraph 23: From the decisions cited above the following principles clearly emerge: (i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic entity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.;