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1978 (9) TMI 189

ull Bench is whether proceedings under the U. P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Ceiling Act) are maintainable and can continue during the pendency of proceedings under the U. P. Consolidation of Holdings Act (Hereinafter referred to as the Consolidation Act). 2. The notification under Section 4(2) of the Consolidation Act in respect of the plots in dispute was published on 17th August, 1975. Subsequently on 24th April, 1976, the Prescribed Authority issued a notice under Section 10(2) of the Ceiling Act. The petitioner filed an objection, that in view of the pendency of proceedings under the Consolidation Act the proceedings under the Ceiling Act could not validly be initiated. The Prescribed Authority rejected this contention, and passed an order declaring 8.20 acres in terms of irrigated area as the surplus land of the petitioner. 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 tha .....

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on the completion of consolidation operations by the issuance of a notification under Section 52 of the Consolidation Act. 9A. The State Legislature intervened, and by the U. P, Laws Amendment Act No. 34 of 1974, added the following explanation to Section 5(2) of the Consolidation Act: "Explanation -, For the purposes of Sub-section (2) a proceeding under the U. P. Imposition of Ceiling on Land Holdings Act, 1960, shall not be deemed to be a proceeding in respect of declaration of rights or interest in any land." 10. The effect of this Explanation was to remove the bar imposed by Section 5(2)(a). The proceedings under the Ceiling Act would not hence abate under Section 5(2)(a) of the Consolidation Act. 11. Mr. Yatindra Singh, learned counsel for the petitioner submitted before the Division Bench and reiterated the same submission before 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. .....

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Ceiling Act. 17. Mr. Yatindra Singh in his arguments respected this decision, but submitted that the first part of Section 49 was nonetheless available and applicable. The first part equally well operated ''notwithstanding anything contained in any other law for the time being in force." It provided that declaration and adjudication of rights in respect of land shall be done in accordance with the provisions of the Consolidation Act. 18. The Supreme Court has declared that proceedings under the Oiling Act are for declaration and adjudication of rights in respect of land and so Section 49 bars the ceiling proceedings. Learned counsel stressed that the Explanation appended to Section 5(2) of the Consolidation Act was expressly limited to that provision because it opened with the phrase "For the purposes of Subsection (2)". 19. 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 S .....

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on the publication of the notification under Sub-section (2) of Section 4, This change, however, does not materially affect the position that sections 5 and 49 are integral parts of the same scheme, namely, that declaration and adjudication of rights has to be done under the Consolidation Act and nowhere else. Section 5 covers pending while Section 49 forbids future proceedings to that end. 23. In this view when the legislature by adding the Explanation created a fiction that proceedings under the Ceiling Act shall not be deemed to be proceedings in respect of declaration or adjudication of rights or interest in any land it had obviously intended to exclude the ceiling proceedings from the purview of the Consolidation Act. The Explanation was made applicable for purposes of Sub-section (2) of Section 5. Since Section 49 is an extension of Sub-section (2) of 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 S .....

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such question arises. 30. Learned counsel stressed that in any event the ceiling proceedings ought to be stayed on the principle of comity of Courts. When the question of title is already engaging the attention of the (Gargi Din v. Debi Charan (ILR 51 All 1017) : (1930 All LJ 284); Hathi Ram v, Hazi Mohammad (AIR 1954 All 141): (1953 All LJ 578); Ram Narain v. Ram Swarup (AIR 1962 All 108); L. Nem Kumar Agarwal v. Nem Kumar (1957 All LJ 734) : (AIR 1958 All 207)) consolidation authorities, adjudication of same rights under the Ceiling Act is likely to lead to conflicting orders. To avoid it the later proceedings under the Ceiling Act ought to be stayed. This argument is fallacious. 31. The Consolidation Act seeks to adjudicate and declare rights of tenure-holders as they were on the date of the publication of the notification under Section 4 (2) 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 h .....

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24th Jan., 1971, is thus valueless, it was liable to be ignored, be it based on a genuine dispute or an admission etc. made in a deed or instrument, in such case also staying of ceiling proceedings would be of no avail. Whatever adjudication of rights as a co-tenure-holder or in relation to any other form of transfer is made by consolidation authorities it would be a waste paper. 36. Sub-section (7) of Section 5 directs that partition of land made after 24th Jan., 1971, shall be ignored in determining the ceiling area. The proviso to Sub-section (7) makes an exception in favour of a partition made in a suit or proceeding pending on 24th Jan., 1971. This is subject to another proviso : "Provided further that notwithstanding anything contained in the preceding proviso the Prescribed Authority, if it is of opinion that by collusion 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 s .....

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adjudicated. Till that is done, he cannot be evicted even though the land claimed by him has been declared as surplus land of some other tenure-holder. 41. The position, therefore, is that every person who claims rights in land as a tenure-holder must get his rights settled under the Ceiling Act. He is not to wait for adjudication of his rights either in the civil or revenue Courts or In consolidation proceedings. 42. The principle of comity of Courts applies where the1 decision of one is to operate as res judicata in the other Court. As shown above, in matters governed by the Ceiling Act decisions by other Courts or authorities have no binding efficacy. On the principle of comity of Courts, the proceedings under the Ceiling Act are not liable to be stayed. 43. Learned counsel for the petitioner highlighted many anomalies 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 compensat .....

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nder the Ceiling Act are not bound by the findings given by the consolidation authorities. 48. This illustration does not represent the correct position. In the first place, Section 38-B dissolves the binding effect of findings given before 10th Oct.. 1975. Such findings or decisions can be retried under the Ceiling Act. If in the given case the consolidation authorities have given their decision before- 10th Oct., 1975, those issues themselves are liable to be retried and for all we know the original tenure-holder may succeed in defeating the claims of those who allege to be in adverse possession. If the decision is given after 10th October, 1975, it will have a binding efficacy in ceiling proceedings, if it is not covered by any of the clauses of Section 5. A claim of maturing title by adverse possession is 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 o .....

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der where he has come to hold under a decree or order by any court or as a result of succession or transfer or by prescription in consequence of adverse possession land which together with the land already held by him exceeds the ceiling area applicable to him. 54. But the Ceiling Act makes no provision either in Section 29 or anywhere else where a tenure-holder may unfortunately happen to lose some land after his ceiling area has been determined under the Ceiling Act. 55. One such instance can be conceived; after the proceedings under .the Ceiling Act are over and the ceiling area and surplus land of a tenure holder has been determined and declared, consolidation proceedings commence. A person files an objection in consolidation proceedings that he was unaware of the ceiling proceedings, 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 co .....

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