B.S. Verma, J.@mdashHeard Learned Counsel for the parties and perused the entire material placed before the Court.
2. By means of writ petition No. 4964 of 2001 (M/S), the Petitioners have sought a writ in the nature of certiorari quashing the impugned orders dated 13th June 1990 and the order dated 25th October 1990 (Annexure No. Ill and IV to the writ petition). Further, prayer for issue of writ of mandamus commanding the opposite parties not to interfere in the possession of the Petitioner No. 1 to 3 has been made.
3. A perusal of the record shows that the Respondent Nos. 2 to 6 filed five suits under Sections 229-B and 209 of the U.P. Zamindari Abolition and Land Reforms Act (for short the Act) against the Petitioners and Respondent Nos. 7 to 11. It appears that the suits filed by the Respondent Nos. 2 to 6 were dismissed by a common judgment and order dated 9th September 1981 by the Assistant Collector, 1st Class, Kashipur passed in Suit No. 22/34 of 1978-79 Sri Ravi Prakash and two Ors. v. Pyara Singh and Six Ors. under Sections 209/229B of the Act.
4. Aggrieved by the said order, the Plaintiff-Respondent Nos. 2 to 6 filed separate appeals before the Commissioner Kumaun Division Nainital. The appeals were ultimately dismissed vide judgment and order dated 29-6-1985. Aggrieved by the judgment and order of the first appellate court, the Plaintiff-Respondent Nos. 2 to 6 preferred Second Appeals before the Board of Revenue U.P. Allahabad, which were allowed by order dated 13-6-1990 and the judgment and orders passed by the two courts below were set aside.
5. Aggrieved by the order dated 13-6-1990, the Petitioners have come up in the present writ petition before the Allahabad High Court, which was subsequently transferred to this Court.
6. By means of this application (No. 6787 of 2009) the Petitioners have contended that during the pendency of the present writ petition, the State of Uttar Pradesh has issued Notification u/s 4 of the U.P. Consolidation of Holdings Act and the village Kharmasi is under the consolidation proceedings. It is also asserted that both the parties participated in the proceedings before the Consolidation Officer pertaining to land in dispute and that after commencement of the consolidation proceedings, the present writ petition is liable to be abated u/s 5(2)(a) of the U.P. Consolidation of Holdings Act, 1953. The following prayers have been made in this application:
(a) To abate the present petition u/s 5(2)(a) of the Act giving liberty to consolidation Courts to decide lis between parties afresh in accordance with law without being prejudiced from the judgment passed by the Revenue Courts, failing which the Petitioner would face irreparable harm and injury.
(b) To pass such other orders, directions etc. which are necessary in the facts and circumstances of the case.
7. Learned Counsel appearing for the Petitioners has vehemently argued that the writ petition under Article 226 of the Constitution of India being a continuation of the suit stands abated under the provisions of UP. Consolidation of Holdings Act, 1953. In support of his contention, the Learned Counsel for the Petitioners have placed reliance in para 12 of the case of
(12) Having due regard to the nature of this litigation, and the provisions of the Act, we are satisfied that the amended Section 5 of the Act applies to-these proceedings. If that is so an order has to be passed that the suit, out of which these proceedings arise, stands abated.
8. it may be mentioned here that the Appellant Ram Adhar Singh had preferred Civil Appeal No. 691 of 1966 after grant of special leave by the Supreme Court, challenging the judgment and decree of the Allahabad High Court dated 20-4-1965 in Second Appeal. In Misc. Petition No. 2631 of 1967, the Appellant had prayed before the Apex Court to pass an order that Civil Appeal No. 691 of 1966 has abated in view of the amended Section 5 of the Uttar Pradesh Consolidation of Holdings Act 1953. In the case at hand, this Court is exercising jurisdiction under Article 226 of the Constitution. The ratio of the Apex Court in the aforesaid case cannot be disputed. Facts of the case at hand are quite distinct.
9. Learned Counsel for the applicant-Petitioners has also relied upon paragraph No. 9 of the case of
9. When a scheme of consolidation is undertaken, the Act provides for adjudication of various claims to land involved in consolidation by the authorities set up under the Act. In order to permit the authorities to pursue adjudication of rival claims to land unhampered by any proceedings in civil courts, a wholesome provision was made that the pending proceedings involving claims to land in the hierarchy of civil courts, may be in the trial court, appeal or revision, should abate. This provision was made with a view to ensuring unhampered adjudication of claims to land before the authorities under the Consolidation Act without being obstructed by proceedings in civil courts or without being hampered or impeded by decisions of the civil courts in the course of consolidation of holdings. In order to avoid conflict consequent upon rival jurisdictions the legislature provided that the proceedings involving the claims to land put in consolidation should be exclusively examined by the authorities under the Consolidation Act and all rival jurisdiction would be closed. Simultaneously it was necessary to deal with the pending proceedings and that is why the provision for abatement of such proceedings.
In paragraph No. 12, the Apex Court has observed as under:
12. Accordingly, both on principle and precedent it is crystal clear that where a notification is issued bringing the land involved in a dispute in the civil proceeding under a scheme of consolidation, the proceedings pending in the civil court either in the trial court, appeal or revision, shall abate as a consequence ensuing upon the issue of a notification and the effect of abatement would be that the civil proceeding as a whole would come to a naught. Therefore, the order of the High Court impugned in this appeal is legal and valid so far as if not only directed abatement of the appeal pending before the High Court but also abating the judgments and decrees of the trial court and the first appellate court because the entire civil proceeding came to naught.
10. In this case also, the Apex Court has relied upon the judgment in the case of Ram Adhar Singh (supra).
11. As against the arguments advanced by the Learned Counsel for the Petitioners, the Learned Counsel for the contesting Respondents No. 2 to 6 (Plaintiffs) has firstly contended that a writ petition under Article 226 of the Constitution of India cannot be termed as continuation of the suit, appeal or revision and it is also not a proceeding arising out of the suit, appeal or revision, rather it is distinct and independent proceeding. Learned Counsel, therefore, argued that the Apex Court in the two case-law relied upon by the Petitioners has pronounced that the suit, appeal or revision shall abate as a consequence of the amended provision of Section 5(2)(A) of the Consolidation of Holdings Act, 1953. But there is no question of abatement of writ petition as has been contended on behalf of the Petitioners, in support of his contention, Learned Counsel for the Respondents has placed reliance upon paragraph 9 of the case of
It is, therefore, clear from the nature of the power conferred under Article 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisionai jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extra-ordinary original jurisdiction. If that be so, it cannot be contended that a petition under Article 226 of the Constitution is a continuation of the proceedings under the Act.
12. Learned Counsel for the contesting Respondents has argued that the High Court under Article 226 of the Constitution does not hear an appeal or revision, therefore, a petition before the High Court is not a continuation of suit, appeal or revision and there is no question of abatement of writ petition, which is an independent proceeding. Learned Counsel has placed reliance upon tie judgment of the Apex Court in the case of
16. We are concerned here with the exercise of extraordinary original civil jurisdiction under Article 226. Under that jurisdiction, the High Court does not hear an appeal or revision. The High Court is moved to intervene and to bring before itself, the record of a case decided by or pending before a Court or tribunal or any authority with the High Court''s jurisdiction. A petition to the High Court invoking this jurisdiction is a proceeding quite independent of the original controversy. The controversy in the High Court, in proceedings arising under Article 226 ordinarily is whether a decision of or a proceeding before, a Court or tribunal or authority, should be allowed to stand or should be quashed, for want of jurisdiction or on account of errors of law apparent on the face of the record. A decision in the exercise of this jurisdiction, whether interfering with the proceeding impugned or declining to do so, is a final decision in so far as the High Court is concerned because it terminates finally the special proceeding before it But it is not to be taken that any order will be a final order. There are orders and orders. The question will always arise what has the High Court decided and what is the effect of the order. If, for example, the High Court declines to interfere because all the remedies open under the law are not exhausted, the order of the High Court may not posses that finality which the article contemplates. But the order would be final if the jurisdiction of a tribunal is questioned and the High Court either upholds it or does not In either case the controversy in the High Court is finally decided. To judge whether the order is final in that sense it is not always necessary to correlate the decision in every case with the facts in controversy especially where the question is one of jurisdiction of the Court or tribunal. The answer to the question whether the order is final or not will depend on whether the controversy is finally over but whether the controversy raised before the High Court is finally over or not. If it is, the order will be appealable provided the other conditions are satisfied, otherwise not.
13. For a just decision in the matter, a reference to the amended provisions of Section 5 of the Uttar Pradesh Consolidation of Holdings Act, 1953 is necessary. Section 5 deals with the effect of notification u/s 4(2) of the said Act. Provision of Sub-section (2) Clause (a) of Section 5 is relevant for the purposes of the controversy involved in the matter. Section 5(2) is reproduced hereunder:
(2) Upon the said publication of the notification under Sub-section (2) of Section 4, the following further consequences shall ensue in the area to which the notification relates, namely-(a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or 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 no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard:
Provided further that on the issue of a notification under Sub-section (1) of Section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part as the case may be, shall stand vacated;
(b) 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.
Explanation.- For the purposes of Sub-section (2), a proceeding under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 or an uncontested proceeding under Sections 134 to 137 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, shall not be deemed to be a proceeding in respect of declaration of rights or interest, in any land.
14. In the light of the aforesaid provision of Section 5(2)(a) of the U.P. Consolidation of Holdings Act, 1953, the arguments advanced by the Learned Counsel for the parties have to be considered. First of all it has to be examined whether the writ petition under Article 226 of the Constitution of India before the High Court is covered within the ambit of a proceeding pending before the court. I am of the considered view that a writ petition challenging the judgments, orders or decrees passed in suits or proceedings of the nature envisaged by Section 5(2)(a) of the said U.P. Consolidation of Holdings Act, 1953 cannot be held to be pending before the High Court.
15. I am fortified in my view by the Full Bench judgment of the Allahabad High Court in the case of Udai Bhan Singh alias Bah v. Board of Revenue U.P. at Allahabad and Ors. 1974 A.L.J. 295 wherein the Allahabad High Court had an occasion to examine whether the land covered by Notification under Sections 4 and 5(2)(a) of the U.P. Consolidation of Holdings Act, 1953 would have any impact on writ petitions. In this case, the Allahabad High Court has also considered the case of Ram Adhar Singh (supra). In paragraph 12, the Allahabad High Court has inter alia held that "I am further of the view that if Section 5(2)(a) of the 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 extent. The Act is a State legislation. It cannot have the effect of curtailing the constitutional powers of this Court under Article 226." in paragraph 15, the Allahabad High Court has held as under:
15. For the reasons given above, my answer to the question referred is that Section 5(2)(a) of the Act has no impact on writ petitions or special appeals arising out of them in which judgments or orders passed in suits or proceedings relating to declaration of rights in land covered by a notification u/s 4 of the Act are in challenge and they will remain unaffected by the provision.
16. Learned Counsel for the contesting Respondents has lastly contended that the term "proceeding" is to mean suit, appeal or application for revision and the writ petition under Article 226 of the Constitution cannot abate by an enactment made by the State legislature u/s 5(2)(a) of the U.P. Consolidation of Holdings Act, 1953. Learned Counsel has relied upon the Apex Court judgment in the case of
17. Moreover, it has been stated by the Petitioners in their application (No. 6787 of 2009) that during the pendency of Writ Petition No. 4964 of 2001 the State of Uttar Pradesh has issued Notification u/s 4 of the U.P. Consolidation of Holdings Act thereby village Kharmasi has been brought under consolidation operation, meaning thereby that the proceedings of second appeal before the Board of Revenue had already finally terminated before the commencement of the said Notification. It is also pertinent to mention that before the Apex Court in the case of Ram Adhar Singh (supra) prayer was made to pass an order that Civil Appeal No. 691 of 1966 has abated in view of the amended Section 5 of the Uttar Pradesh Consolidation of Holdings Act, 1953, whereas the Petitioners have prayed for passing the order that the writ petition has abated in view of the amended Section 5(2)(a) of the said Act. In both the case-law relied upon by the Learned Counsel for the Petitioners, namely, Ram Adhar Singh (supra) and Mst. Bibi Rahmani Khatoon (supra), the Apex Court has held that the appeal stood abated. For this reason also, these two case law do not apply to the case at hand.
18. Having considered the arguments of the Learned Counsel appearing for both the sides, I am of the opinion that the provision of Section 5(2)(a) of the Uttar Pradesh Consolidation of Holdings Act, 1953 does not have any impact upon the writ petition under Article 226 of the Constitution and the writ petition does not fall within the ambit of any proceeding arising out the suit, appeal or application for revision. I am not inclined to accept the prayer of the Petitioner to hold that the writ petition would abate in view of the provision of Section 2(2)(a) of that Act. Miscellaneous Application No. 6787 of 2009 moved by the Petitioners in Writ Petition No. 4964 of 2001 deserves to be dismissed.
19. Accordingly, Miscellaneous Application No. 6787 of 2009 moved by the Petitioners in Writ Petition No. 4964 of 2001 is dismissed.
20. List the petition for final hearing in the week commencing 14-12-2009 along with connected matter (Writ Petition No. 4965 (M/S) of 2001.
