TMI Blog1974 (2) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... abates by virtue of Section 5 (2) (a) of the U. P. Consolidation of Holdings Act hereinafter referred to as the Act -- on a notification under Section 4 thereof being Issued, N. D. Ojha, J., was of a contrary opinion. 2. Before embarking on a consideration of the impact of Section 5 (2) (a) of the Act, it is necessary to appreciate the true nature and character of proceedings under Article 226 of the Constitution and special appeals against orders passed in such proceedings. 3. An order passed by the High Court under Article 226 of the Constitution, as held by the Supreme Court in State of Uttar Pradesh v. Dr. Vijay Anand Maharaj is one in exercise of its extra-ordinary original civil jurisdiction. When a writ petition is filed challenging a decision in a suit or proceeding declaring or adjudicating rights or interest in any land, this Court calls for the record of the suit or proceeding and if it is found to be without jurisdiction or if there is an error of law apparent on the face of the record, the judgment or order is quashed. This Court after quashing the order cannot substitute its own order or decree for the order or decree impugned but must send back to the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision arising therefore do not merge in the orders passed in such petition. Since a special appeal, directed against an order passed in a writ petition is merely a rehearing of the petition itself, it has all the abovementioned characteristics of a petition under Article 226 of the Constitution. The above described features of writ petitions must be borne in mind while considering the question referred to us. 4. I shall now proceed to consider the scope of Section 5 (2) (a) of the Act disembarrassed by the case-law dealing with the question referred to us. 5. Section 5 (2) (a), to the extent relevant for our purposes, runs as follows: 5. Effect of notification under Section 4 (2) (1): Upon the publication of the notification under Sub-section (2) of Section 4 in the Official Gazette, the consequences as hereinafter set forth, shall subject to the provisions of this Act, from the date specified thereunder till the publication of notification under Section 52 or Sub-section (1) of Section 6, as the case may be, ensue in the area to which the notification under Sub-section (2) of Section 4 relates; namely- (a) the district or part thereof, as the case may be, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h proceedings can or ought to be taken under the Act cannot be considered to be a suit or proceeding for declaration or adjudication of any such right. The question surviving for consideration is as to whether a petition under Article 226 of the Constitution can be characterized as a proceeding in respect of declaration of rights or interest in any land , and thus falls within the second category of cases enumerated above. The meanings of the phrase in respect of according to Webster's New Twentieth Century Dictionary are 'with respect to' or 'as regard'. While the third category deals with every suit or proceeding for declaration , the second category is concerned with suit or proceeding in respect of declaration of rights or interest in land . The scope of the second category is wider than that of the third. It appears to me that while the third category is concerned with cases in which rights of parties are directly declared, in the second category are covered cases in which declaration of rights in land is only indirectly though necessarily involved. To my mind, only suits and proceedings which involve indirectly though necessarily declaration of rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective. ............ The test applied by the Supreme Court in the abovementioned decisions was as to whether in the suit or proceeding a declaration of rights or interests in any land lying in the area in regard to which a notification under Section 4 (2) of the Act had been issued was necessarily involved. As already held, in a writ petition arising out of a suit or proceeding in respect of a declaration of rights or interests in any land, the High Court itself does not decide the rights of the parties which formed subject-matter of the suit or proceeding. On the language of Section 5 (2) (a) of the Act consequently petitions under Article 226 of the Constitution cannot be considered to be either suits or proceedings of the nature contemplated by that provision. 8. Moreover, if a writ petition challenging judgments, orders or decrees passed in suits or proceedings of the nature envisaged by Section 5 (2) (a) of the Act is filed, those suits or proceedings cannot be held to be pendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it the suit or proceeding cannot be considered to be pending till the decision of the writ. In this view of the matter, the requirement of Section 5 (2) (a) of the Act that the suit or proceeding should be pending on the date of the notification under Section 4 (2) of the Act is also not satisfied. 9. Assuming that a suit or proceeding is pending in this Court till orders are passed in the writ petition challenging orders passed therein, to attract Section 5 (2) (a) it is essential that the suit or proceeding should be pending either in a court of first instance or of appeal, reference or revision. Whether this condition is satisfied or not can best be considered in the light of the prevailing law dealing with land tenures in the State. Suits for declaration or adjudication of rights of tenure-holders are required by U. P. Act I of 1951 to be filed before an Assistant Collector of the first class. A first appeal against the judgments and decrees lies to the Commissioner of the Division and a second appeal to the Board of Revenue. If a writ petition is filed challenging a judgment of the Board of Revenue in a second appeal in such a suit it cannot be reasonably contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act is construed so as to be applicable to proceedings under Article 226 of the Constitution the provision would have to be declared ultra vires of the powers of the State Legislature to that ex-tent. The Act is a State Legislation. It cannot have the effect of curtailing the constitutional powers of this Court under Article 226. I find support in the view taken by me from a decision of a Full Bench of this Court in Adarsh Bhandar, Aligarh v. Sales Tax Officer, Aligarh. The material facts of that decision were that on the 31st March, 1956, the Governor of the State in purported exercise of his powers under Section 3-A of the U. P. Sales Tax Act, 1948, issued a Notification by which he was pleased to declare that the turn-over in respect of certain specified classes of goods imported from outside Uttar Pradesh would, with effect from the 1st April, 1956, be taxed at the rate specified in that notification. M/s. Adarsh Bhandar was on the 14th September, 1956, assessed to a certain amount of sales tax. A demand notice in respect of the amount was issued on the 15th September, 1956. M/s. Adarsh Bhandar filed a petition in this court under Article 226 of the Constitution challenging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch held that: The Legislature derives its power to legislate from Article 245 of the Constitution and that Article specifically makes the power subject to the provisions of the Constitution which include Article 226. Learned Counsel for the State therefore concedes that it is not open to the legislature to enact any law which either directly or indirectly affects the powers conferred by Article 226 of the Constitution on the High Court. As Section 4 of the Validation Act leaves no discretion with the High Court in the matter of agreeing or refusing to review its previous order and, after a review is granted, makes it obligatory on the High Court to pass a particular order, it is obvious that it seriously affects those powers. In enacting this provision the legislature, in our opinion, clearly exceeded its authority and contravened Article 245 of the Constitution. The learned Counsel for the State however, urged that even under Article 226 the Court was bound to follow the law and the law which it had to follow was the law laid down by the legislature. Within the range of its competency therefore the legislature could lay down any law which it considered proper and the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the said assessment No appeal was preferred by the State of Uttar Pradesh. On the 9th February, 1956, the State of Uttar Pradesh promulgated an Ordinance, being Ordinance No. II of 1956, which was subsequently replaced by U. P. Act No. XIV of 1956. Under the provisions of the Ordinance, the assessments made by the Additional Collector were retrospectively validated and, under Section 6, therefore, a right was conferred upon any party to the proceedings under the U. P. Agricultural Income Tax Act, 1948, wherein any assessment made by an Additional Collector or Additional Assistant Collector was set aside merely on the ground that the assessing authority had no jurisdiction to make the assessment, to apply within 90 days from the date of the commencement of the said Ordinance for a review of the said proceedings in the light of the provisions of the Ordinance, and a statutory injunction was imposed upon courts to review their orders accordingly. Pursuant to the provisions of Section 6 of the said Ordinance, the State of Uttar Pradesh filed an application in the High Court of Allahabad for review of its order dated 22nd November, 1956. The application was heard by Mehrotra, J., who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avoided. There is nothing in Section 5 (2) (a) of the Act which would compel me to take the view that it applies to writ petitions and is consequently ultra vires of the legislative powers of the State Legislature on that account. Brother Satish Chandra took the View that if Section 5 (2) (a) of the Act is held to apply to the writ petitions and to special appeals arising therefore, its constitutional validity would not be affected. He relied for that view primarily on a decision of this Court in Special Appeal No. 455 of 1972 (All), Raja Ram v. Jodha Ram and Ram Adhar Singh v. Ramroop Singh (supra) decided by the Supreme Court. Both these decisions, in my opinion, are distinguishable. The decision in Special Appeal No. 455 of 1972 (All) was with regard to the validity of a State Legislation abolishing special appeals against decisions under Article 226 of the Constitution in a specified class of cases. The enactment was held to be valid. The Constitution does not provide for special appeals against orders passed in writ petitions. Therefore, this Court was not concerned with the question of the curtailment of its powers under Article 226 of the Constitution by a State enactment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of this Court would directly be curtailed. 14. The decision by M. H. Beg, J, in Vijai Shankar Rai v. Viswanath Rai, 1967 All WR 704 fortifies me in the view expressed above. The material facts in that case were that a writ petition was pending in this Court directed against a judgment of the Board of Revenue given in a second appeal arising out of a suit for declaration of the opposite parties' rights as Bhumidhar and in the alternative for possession against the defendant-petitioner. On behalf of the petitioner on the basis of Section 4 (2) of the Act as it stood after its amendment by Section 2 of the Uttar Pradesh Jot Chakbandi (Sansodhan) Adhiniyam, 1966 it was contended that the writ petition itself be declared to have abated. Section 4 (2) (a) of the Act which came up for consideration was in terms identical with Section 5 (2) (a) as it stands. The learned Judge held as follows: All that this provision does is to cause proceedings for correction of records and suits and other proceedings in respect of declaration of rights and other interests in land, for which proceedings could be taken under the U. P. Consolidation of Holdings Act, 1954, to abate. This w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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