JUDGEMENT
Sarwar Ali, Actg. C.J. -
(1.)In this writ application petitioners challenge the vires of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (the 'Act'). But before dealing with the contentions raised, I may state the relevant facts leading to the filing of this writ application. I would also indicate the relevant statutory provisions. The facts :--
(2.)The petitioners filed Title Suif No. 103 of 1966. The suit was pending in the court of the Additional Subordinate Judge, Muzaffarpur, when the impugned order contained in Annexure-5 was passed. In the suit the petitioners-plaintiffs alleged that certain alienations made by defendant 1st party in favour of defendant second party were not binding on the planitiffs. It was therefore, prayed that the said alienations be set aside and the plaintiffs be put in possession of the properties mentioned in Schedule I to the plaint. The properties in the suit are situate in several villages. In all these villages according to the finding of the learned Additional Subordinate Judge, consolidation proceedings are going on. An application was filed on behalf of the defendants stating that consolidation operation had commenced in all the village where the lands involved in the suit are situate. It was, therefore, prayed that it should be held that the suit has abated under the provisions of Section 4 (c) of the Act. A rejoinder was filed to this application. After hearing the parties, the suit has abated. The order of the learned Subordinate Judge is contained in An-nexure. 5. It is this Annexure, which the petitioners pray, be quashed. Statutory provisions :--
(3.)The long title itself and the preamble of the Act clearly reflect the purpose of the Act. It is to provide for consolidation of holdings and to prevent fragmentation of land. Section 3 of the Act empowers the State Government to declare by notification in the official gazette its intention to make a scheme for consolidation of holdings in the area mentioned in the notification. Section 4 of the Act deals with the effect of notification aforesaid, Section 4 of the Act reads as follows :--
"4. Effect of notification under Section 3 (1) of the Act :-- Upon the publication of the notification under Sub-section (1) of Section 3 in the official gazette the consequences, as hereinafter set forth, shall subject to the provisions of this Act, from the date specified in the notification till the close of the consolidation operation, ensue in the area to which the notification relates, namely :-- (a) the district or part thereof, as the case may be, shall be deemed to be under consolidation operations and duty of preparing and maintaining the record of rights and the village map of each village shall be performed by the Director of Consolidation, who shall prepare or maintain them, as the case may be, in the manner prescribed; (b) no suit or other legal proceeding, in respect of any land in such areas shall be entertained in any court, and in calculating period of limitation applicable to such suits and proceedings such period shall not be counted; Provided that nothing in this clause shall apply to any proceeding under Section 48-E of the Bihar Tenancy Act, 1885 (Act 8, 1885) and to the proceedings relating to the recording of the titles of Bataidars :-- (c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area or for declaration 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 being passed in that behalf by the court or authority before whom such suit or proceeding is pending, stand abated; Provided that if the State Government empowers any other officer appointed under this Act to dispose of any proceeding relating to survey settlement operations under the provisions of Chapter X of the Bihar Tenancy Act, 1885 (Bihar Act VIII of 1885), or Chapter 12 of Cho-tanagpur Tenancy Act, 1908 (Bengal Act 6, 1908) or Santhal Parganas Settlement Manual, 1872 (Manual 3, 1872) and transfer such proceeding to such Officer for disposal, then the proceeding shall not abate or shall not be considered to have been abated :-- Provided also that no such order shall be passed without giving to the parties notice by post or in any other manner that may be convenient and after giving them an opportunity of being heard : provided further that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder : Provided that the State Government may, by notification in the Official gazette, exempt any such proceeding, suit, appeal, reference or revision, or any class of them, if in its opinion their abatement is not in public interest, and is not necessary for the purpose of this Act :-- Provided further that nothing in this section shall apply to any proceedings under Chapters XI and XII of the Code of Criminal Procedure, 1898 (Act V of 1898), Section 48-E of the Bihar Tenancy Act (Act VIII of 1885) and the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Act XII of 1962)".
Section 7 of the Act envisages constitution of village Advisory Committee. Section 8 of the Act requires preparation of up to date record-of-rights before consolidation. Section 8A enjoins partition of joint holdings, Section 9 of the Act relates to preparation of register of lands. Section 9A deals with preparation of statement of principles. Section 10 envisages publication of register of lands and statement of principles and objections thereon. Section 11 lays down the manner in which draft scheme is to be prepared. Section 12 requires publication of draft scheme. Section 12A relates to disposal of objections and is as follows :--
"12A. Disposal of objections: (1) All objections received by the Assistant Consolidation Officer shall, as soon as may be after the expiry of the period specified in Section 12 be submitted by him to the Consolidation Officer who shall dispose of the same, in the manner hereinafter laid down, after notice is given to the parties concerned and the village Advisory Committee. (2) Any person aggrieved by the order of Consolidation Officer under Sub-section (1) may, within thirty days of the date of the order, file an appeal before the Assistant Director of Consolidation whose decision shall, except as otherwise provided by or under, this Act, be final. (3) The Consolidation Officer shall, before deciding the objection and the Assistant Director of Consolidation may, before deciding any appeal, make local inspection of the plots in dispute after giving notice to the parties concerned and the village Advisory Committee."
Section 12-B authorises revision of draft consolidation scheme in the circumstances mentioned therein. Section 13 of the Act deals with the confirmation of the draft consolidation scheme. Section 14 of the Act is consequential to the confirmation of the draft consolidation scheme and deals with the consequence of the confirmation of the scheme. Section 15 is as follows :--
"15. Certificate of transfer : (1) The Consolidation Officer shall grant to every raiyat to whom a holding has been allotted in pursuance of a scheme of con-slidation certificate in the prescribed form containing the prescribed particulars. Such certificate shall be conclusive proof r,f the title of such raiyat to such holding and he shall be liable for payment of such rent as may be specified in the certificate (2) A similar certificate of transfer shall be granted to every under-raiyat, whether having a right of occupancy or not in any land allotted to him in pursuance of the scheme and the certificate shall be conclusive proof of the title of such under-raiyat to such land and he shall be liable to payment of such rent and to such person as may be specified in the certificate."
Section 16 states that the confirmed scheme is to be treared as finally published record of right. Section 26-A empowers the State Government to issue notification in the official gazette stating that the consolidation operations have been closed in a particular area. Section 37 creates bar for jurisdiction of Civil Courts. It is as follows :--
"Bar of jurisdiction of Civil Courts :--No Civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act with respect to any other matter for which a proceeding could or ought to have been taken under this Act."
Section 40 empowers the State Government to make rules for carrying out the purposes of the Act. Vires of Acts :--