TMI Blog1978 (9) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner. 3. The petitioner filed an appeal, which was however, dismissed as barred by time. 4. The petitioner came up to this court under Article 226 of the Constitution. This Court allowed the petitioner to add a relief that the notice under Section 10(2) being without jurisdiction be quashed. Being of the opinion that the question raised in this case was of general importance, the matter was referred to a Full Bench: 5. Under the Consolidation Act title of interested persons is determined in respect of the area for which a notification has been issued under Section 4(2) of that Act. Thereafter the holding of each tenure-holder is consolidated into one or more compact areas called chaks. When these proceedings are over, a notification under Section 52 is issued closing the consolidation operations. 6. Section 5 (2) (a) of the Consolidation Act provides for abatement of proceedings pending on the date when the notification under Section 4(2) is published. Such proceedings are for correction of records and every suit and proceeding in respect of declaration of rights or interest. In addition, proceedings for declaration or adjudication of any other right in regard to whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e this Full Bench, that in point of fact Section 5(2)(a) was not on its own terms applicable to the present case. Section 5(2)(a) covers proceedings pending on the commencement of consolidation proceedings. In the present case no proceedings under the Ceiling Act were pending when the consolidation proceedings commenced on 17th August, 1975. The notice, under Section 10 (2) of the Ceiling Act, which initiated ceiling proceedings, was issued much later on 24th April, 1976. Section 5 (2) (a) not being applicable, the Explanation was of no avail to save the ceiling proceedings. 12. Learned counsel urged that Section 49 of the Consolidation Act was applicable. The Supreme Court decision holding that proceedings under the Ceiling Act were proceedings for declaration or adjudication of rights in land, though given with reference to Section 5(2) was equally applicable to Section 49. Section 49 expressly governs adjudication of rights of tenure-holders in respect of land, hence in view of Section 49 the ceiling proceedings could not continue. 13. Section 49 of the Consolidation Act reads :-- Notwithstanding anything contained in any other law for the time being in force, declarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I accept that the phrase declaration of rights or interest in any land occurring in Section 5(2) has the same meaning and significance as the phrase declaration and adjudication of rights of a tenure-holder in respect of land occurring in Section 49. But I am unable to accept that the Explanation is con fined to Section 5 and will not govern Section 49 as well. 19A. I am reminded of what I observed in Smt Shakuntala Devi v. Deputy Director of Consolidation 1968 All WR (HC) 271 : 1969 All LJ 57 (Summary of Cases): ...... both Sections 5 and 49 were intended to achieve the professed aspiration of the (U. P. Consolidation of Holdings) Act. namely to make the consolidation authorities the sole and exclusive tribunals for adjudication of inter alia, all disputes relating to rights and interests in the land covered by the notification under Section 4, so as to facilitate their consolidation in compact holdings. The two provisions are complementary. They supplement each other. The kinds of the disputes in respect of which Section 5 froze pending litigation are the same for which Section 49 forbade the institution of fresh litigation. Both relate to the rights or interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 5 in relation to future litigation of the same kind, the fiction created by the Explanation would equally apply to the bar created by Section 49. A proceeding under the Ceiling Act shall not be deemed to be a proceeding which is barred under Section 49 as well. 24. The Supreme Court C. I. T. v. S. Teja Singh (AIR 1959 SC 352) has had occasion to lay down the effect of a legal fiction. It has approved what Lord Asquith said in East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952 AC 109 at p. 132): If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. 25. The legal fiction is that ceiling proceedings are not proceedings for declaration of rights or interest in land. This imaginary state of affairs must e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to liability of some portion of the land held to belong to a tenure-holder being taken for public purposes on payment of compensation. After declaration of title, land held by a tenure holder is subjected to allotment of chaks. The adjudication of rights is confined to the area under consolidation operations only. A tenure-holder having land at several places may not be subjected to consolidation operations in respect of land lying outside the consolidation area. 32. Proceedings under the Ceiling Act are for an entirely different purpose. Section 5 of the Ceiling Act declares that no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh any land in excess of the ceiling area applicable to him. This Act, therefore covers lands held by a tenure-holder throughout the State. 33. The second Explanation to Section 5 (1) presumes that the tenure-holder in possession on or before Jan. 24, 1971, continues to hold the land even though the name of any other person is entered in the revenue papers after that date, whether on the basis of a deed of transfer or licence or on the basis of a decree. This presumption obtains unless the contrary is proved to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the tenure-holders and any other party to the partition, such other party has been given a share which he was not entitled to, or a larger share than he was entitled to may ignore such partition. Explanation 1: If a suit is instituted after the said date for declaration that a partition of land has taken place on or before the said date, then such declaration shall be ignored and not be taken into account and it shall be deemed that no partition has taken place on or before the said date. 37. It is evident that even a partition made in consolidation proceedings pending on 24th January, 1971, is also liabla to be ignored. 38. Sub-section (8) of Section 5 prohibits transfer of any land held by the tenure-holder during the continuance of proceedings for determination of surplus land, and it makes every such transfer void. Under the Consolidation Act transfers are permitted with the permission of the Settlement Officer : vide Clause (c) of Section 5 (1). 39. These are overriding provisions which nullify declaration or adjudication of the rights in relation to the matters mentioned above, made in any other proceedings including consolidation proceedings. There seems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that are likely to arise if ceiling proceedings continue along with or precede the consolidation operations. It was submitted that a tenure-holder whose ceiling area has been determined under the Ceiling Aot is liable to lose some further land if in subsequent consolidation operations it is taken away for public purposes. According to learned counsel the compensation payable under the Consolidation Act which provided for acquisition of land for public purpose will violate the second proviso to Article 31A(1) of the Constitution. If they so violate the second proviso, then the action of the consolidation authorities in not paying market value as compensation would be rendered void. The tenure-holder would not suffer. 44. Another anomaly which learned counsel listed was of a person for whom the ceiling limit is 7.3 hectares in terms of irrigated land. He is given notice by the Ceiling authorities in which he is shown to own 14.6 hectares in terms of irrigated land. He files an objection and says that 7.3 hectares alone belonged to him. The remaining area is owned by one X. The ceiling authorities find that the entire 14.6 hectares belongs to the objector and not to X. 45. If in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in one of the categories of decisions which can, in certain conditions, be ignored by the ceiling authorities. If a decision is given after 10th Oct., 1975, Explanation 2 of Section 5 (1) of the Ceiling Act amongst other provisions of Section 5 becomes applicable in a case where the original tenure-holder held land on or before 24th Jan., 1971, and thereafter the name of any other person is entered in the revenue papers as a result of orders passed by consolidation authorities. In such a case also the finding is not binding and the issue is liable to be retried. The persons who allege to be in adverse possession will have to satisfy the prescribed authority that they did not hold the land ostensibly in the name of the original tenure-holder, or that he has lost rights by their adverse possession for the requisite period. In such a case the original tenure-holder will implead those who claim rights by virtue of adverse possession, to his objection in the ceiling proceedings and the prescribed authority will have to decide the point and his decision alone will be the final adjudication of rights of all of them inter se. 49. It is true that this will lead to duplication of procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that he really held the land on or before January 24, 1971, and was in its possession. The name of the recorded tenure-holder was wrongly recorded. If such an objection succeeds the recorded tenure-holder would lose such land even though it was within his ceiling area. In such a case the decision of the ceiling authorities will not be binding on the objector because he was not a party to it The consolidation authorities cannot force such an objector to go and get his rights settled in ceiling proceedings. They would be obliged to deal with the objections on its merits. Even though the objector could have filed an objection in ceiling proceedings along with an application under Section 5 of the Limitation Act to condone the delay on the ground that he was not aware; but the recorded tenure-holder cannot force such an objector to have his rights determined in the ceiling proceedings, so that after adjudication of rights of such a claimant his ceiling area and the surplus land may be re-determined. 56. This undoubtedly appears to be an anomalous position, which, in our opinion, requires legislative intervention. We would commend such a situation for consideration of the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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