TILA DEVI Vs. CONSOLIDATION OFFICER FAIZABAD AND ORS.

JUDGEMENT

(1.) This is a petition for certiorari to quash an order passed by a Civil Judge in an objection preferred under Sec. 12 of the U.P. Consolidation of Holdings Act. Sec. 12, as originally enacted, provided that an objection against a statement published under Sec. 11 must be filed within thirty days of the publication before an Assistant Consolidation Officer, that the Assistant Consolidation Officer, should submit it with his report to the Consolidation Officer that when it involved a question of title which had not already been determined by a competent court the Consolidation Officer should refer the question for determination to the Civil Judge who should thereupon refer it to an arbitrator, that the decision of the arbitrator was to be final and that a question of title which might or ought to have been raised under Sec. 12 but had not been raised could not be raised in an objection filed under Sec. 20(2). Sec. 12 was drastically amended by U.P. Act No. XXXVIII of 1958 which came into force on 27.11.1958. Under the amended provision all matters relating to changes and transfers affecting rights or interests recorded in the revised records published under Sec. 10(1) are to be raised before the Assistant Consolidation Officer and are to be decided by him or by the Consolidation Officer and are to be decided by him or by the Consolidation Officer. The statement under Sec. 11 was published on 25.5.1958. It contained an entry that opposite party no. 3, the contesting opposite party, was an adhivasi of certain land. The petitioner filed an objection under Sec. 12(old) denying that the opposite party was adhivasi and claiming that he himself was bhumidhar. The objection undoubtedly involved a question of title. The date on which the objection was filed is not known but since it was required to be filed within thirty days it must have been filed before 27.6.1958, i.e. before Sec. 12 was amended. It was in accordance with the provisions of the unamended Sec. 12 that the question of title was referred by the Consolidation Officer to the Civil Judge, who in turn referred it to the arbitrator. The arbitrator gave an award which was in the petitioner's favour. By the time the reference went back to the Civil Judge not only had Sec. 12 been amended but also the statement under Sec. 19 had been published as required by Sec. 20(1). But it is important to note that no objection under Sec. 20(3) was filed by the petitioner or the opposite party. The Civil Judge passed the impugned order staying further proceedings under Sec. 22(2) and returning the record to the Consolidation Officer. Sub-Section (1) of Sec. 22 as it stood before its amendment by Act No. XXXVIII of 1958, provided that where an objection filed under Sec. 20 against a statement of proposals involved a question of title and such question had not already been finally determined by a competent court the Consolidation Officer should refer it to the arbitrator and sub-Section (2) provided that upon the making of such reference all suits or proceedings in the court of first instance, appeal, reference, or revision in which the question of title in relation to the same land had been raised should be stayed. It was this latter provision that was applied by the learned Civil Judge.

(2.) The first question that arises is whether the procedure for disposing of the objection was governed by the unamended Sec. 12 and the answer is furnished by Sec. 12 or by the amended Sec. 12 and the answer is furnished by Sec. 49 of the amending Act No. XXXVIII of 1958 which lays down that a proceeding commenced prior to, and pending on 27.11.1958 under Sec. 8 or under any subsequent Sec. should be conducted and concluded in accordance with the Provisions of the unamended Act vide para (ii). What was pending on 27.11.1958 was an objection under Sec. 12 and, therefore, it had to be conducted, and concluded, in accordance with the provisions of the unamended Sec. 12. The amended Act was to govern the case only if what was pending on 27.11.1958 was a proceeding for correction of records under Sec. 7. The present case had gone beyond that stage and proceeded upto the stage of objection under Sec. 12. It was argued by Sri Akhtar Hussain that what was pending on 27.11.1958 was a reference to the arbitrator and not the objection but Sec. 49 does not make any such distinction. Even if the reference was pending on 27.11.1958 it was still a proceeding under Sec. 12 and it was to be governed by the unamended Sec. 12. If on 27.11.1958 any proceedings under Sec. 9 or any subsequent Sec. was pending the unamended Act was to apply. The Civil Judge was, therefore, bound to accept the arbitrator's award and to return the record with it to the Consolidation Officer.

(3.) The learned Civil Judge misapplied the provisions of Sec. 22(2) in the instant case. Sec. 22(2) applies only when an objection is filed under Sec. 20 and not prior to the filing of such objection. Here no objection had been filed under Sec. 20 by either party and, therefore, Sec. 22(2) could not be applied at all. The Learned Civil Judge relied upon Ganga Singh Vs. The Deputy Director of Consolidation, U.P. Lucknow 1962 R.D. (H.C.) 107 , in which P. Srivastava, J. held that a proceeding under Sec. 12 also is to be stayed under Sec. 22(2). With great respect I think that this view requires reconsideration. What is to be stayed under Sec. 22(2) is a suit or proceeding in the court of first instance, appeal, reference or revision and not a proceedings under the Consolidation of Holdings Act which cannot be said to be a proceedings in a court. The consolidation authorities are not courts. The provision is similar to that contained in Sec. 12(5)(old). It is obvious that suits or proceedings in the court of first instance, appeal, reference or revision mentioned in Sec. 12(5) could not possibly refer to proceedings under the consolidation authorities and similarly the reference to such suits and proceedings in Sec. 22(2) also cannot refer to Proceedings under the Consolidation of Holdings Act before the consolidation authorities. Further, there are other provisions in the Consolidation of Holdings Act itself according which aleviate the necessity for a provisions for stay of further proceedings under the Act during the pendency of a reference. So long as the reference is not decided further proceedings under the Act cannot be conducted at all and this proves that Sec. 22(2)was not intended to stay further proceedings under the Act during the pendency of a reference. I, however, do not see any necessity of referring the case to a larger Bench because, as I said earlier, Sec. 22(2) does not apply before a reference is made under Sec. 22(1) and no reference under Sec. 22(1) was made in this case.