1974 (2) TMI 98 - HC - Indian Laws

Section 5(2)(a) UP Consolidation Act doesn't apply to writ petitions challenging land rights orders

Udai Bhan Singh and Ors. Versus The Board of Revenue, U.P., Allahabad and Ors.

The Allahabad HC held that Section 5(2)(a) of the U.P. Consolidation of Holdings Act, 1953 has no impact on writ petitions or special appeals arising from ... Impact of Section 5 (2) (a) of the U. P. Consolidation of Holdings Act, 1953 on writ petitions or special appeals arising out of them in which judgment or orders passed in suits or proceedings relating to declaration of rights in land covered by a notification under Section 4 of the Consolidation of Holdings Act - Meaning of word 'pending' - HELD THAT:- If a writ petition is not a continuation of the original suit or proceeding unlike an appeal or revision the inference is not only reasonable but inevitable that orders passed in the original suit or proceeding or in an appeal or 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. A suit for cancellation of a decree in another suit on allegation of its having been obtained by fraud does jeopardise the decree but it would be idle to contend that during the pendency of such a suit the suit in which the decree, the cancellation of which is sought, was passed also becomes pending. This is so, for the simple reason that in the subsequent suit the matters that were in issue in the earlier suit cannot be adjudicated upon. Similarly though a writ petition puts in jeopardy the orders or decrees impugned, since the High Court is not in a position in the writ to decide the matters in issue in the suit or proceeding giving rise to 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. An analysis of the language employed in Section 5 (2) (a) of the Act consequently leaves no room for doubt that it has no impact on a writ petition filed challenging orders passed in suits or proceedings provided for by that provision. It is significant that Sub-section (2) of Section 52 is not confined to orders passed in writ petitions challenging decisions in proceedings under the Act. If the legislature had intended that writ petitions pending on the date of a notification issued under Section 4 (2) of the Act should be affected it would have been expected to employ language confining the operation of Sub-section (2) of Section 52 to orders passed under Article 226 of the Constitution in which the proceedings under the Act were in challenge. Section 52 (2), in my opinion, is a clear indication of the intention of the legislature that petitions under Article 226 of the Constitution will remain unaffected by Section 5 (2) of the Act. It is an elementary rule of construction that an interpretation which would lead to the invalidity of a provision of law must be 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. In while a special appeal under Article 136 of the Constitution was pending arising out of a suit under Section 209 of U. P. Act I of 1951, a notification was issued under Section 4 of the Act. On the basis of Section 5 of the Act, the appellant filed before the Supreme Court a miscellaneous petition praying for an order that the suit pending in appeal stood abated. The application was opposed by the respondent and one of the contentions raised was that if Section 5 (2) (a) as it stands is held to apply to an appeal before the Supreme Court, it would be ultra vires inasmuch as it took away the jurisdiction of the Court to deal with the appeal. The observations made above have no application to proceedings under Article 226 of the Constitution and were made with reference to an appeal, though under a constitutional provision. An appeal is a continuation of a suit and it was the suit that was pending before the Supreme Court. By Section 5 (2) (a) of the Act as it stands, the State Legislature had provided for the abatement of the suit. This the State Legislature was evidently competent to do. It did not directly or indirectly affect Article 136 of the Constitution. On the other hand, as already held in a petition under Article 226 the suit or proceeding giving rise to it is not pending. Writ petitions are original proceedings in this Court distinct from and independent of the suit or proceeding out of which it emanates. If Section 5 (2) (a) is construed as directing abatement of writ petitions the effect would be that the constitutional jurisdiction of this Court would directly be curtailed. Thus, my answer to the question referred is that Section 5 (2) (a) of the Act has no impact on writ petitions or special appeals. The answer to the question referred is that Section 5 (2) (a) of the U. P. Consolidation of Holdings Act has no impact on writ petitions or special appeals arising put of them in which judgments or orders passed in suits or proceedings relating to declaration of rights in land covered by a Notification under Section 4 of the said Act are in challenge. Issues Involved:1. Impact of Section 5(2)(a) of the U.P. Consolidation of Holdings Act, 1953 on writ petitions or special appeals arising from judgments or orders in suits or proceedings related to declaration of rights in land covered by a notification under Section 4 of the Act.Issue-wise Detailed Analysis:Nature and Character of Proceedings under Article 226:The Court first examined the nature of proceedings under Article 226 of the Constitution. It was emphasized that an order passed by the High Court under Article 226 is an exercise of its extraordinary original civil jurisdiction. The Supreme Court in State of Uttar Pradesh v. Dr. Vijay Anand Maharaj held that a writ petition is independent of the original controversy and not a continuation of the original suit or proceeding. Consequently, orders passed in the original suit or proceeding do not merge with the orders passed in the writ petition. This distinction is crucial in understanding that writ petitions are not affected by Section 5(2)(a) of the Act.Scope of Section 5(2)(a) of the Act:Section 5(2)(a) of the U.P. Consolidation of Holdings Act states that upon the publication of a notification under Section 4, every proceeding for the correction of records and every suit or proceeding in respect of declaration of rights or interest in any land shall stand abated. The Court clarified that this section applies only to suits and proceedings directly related to the declaration of rights or interests in land and not to writ petitions under Article 226, which are independent proceedings.Interpretation of 'Pending' Proceedings:The term 'pending' was examined using Stroud's Judicial Dictionary and the Supreme Court's interpretation in Asgarali Nazarali Singaporewalla v. State of Bombay. A proceeding is considered pending if the court has the power to make an order on the matters in issue. Since writ petitions do not decide the merits of the original suit or proceeding, the original suit or proceeding cannot be considered pending in the High Court during the writ petition.Legislative Competence and Constitutional Validity:The Court observed that if Section 5(2)(a) were construed to apply to writ petitions, it would be ultra vires of the State Legislature's powers, as it would curtail the High Court's constitutional powers under Article 226. The Full Bench in Adarsh Bhandar, Aligarh v. Sales Tax Officer, Aligarh, and the Supreme Court in AIR 1963 SC 946, held that State legislation cannot override or contravene the High Court's powers under Article 226.Section 52(2) of the Act:Section 52(2) of the Act provides that any order passed by a court of competent jurisdiction in writ petitions shall be given effect to by the prescribed authorities. This indicates the legislature's intent that writ petitions remain unaffected by Section 5(2)(a).Distinguishing Case Laws:The Court distinguished the present case from Special Appeal No. 455 of 1972 and Ram Adhar Singh v. Ramroop Singh, noting that these cases did not involve the curtailment of the High Court's powers under Article 226.Conclusion:The Court concluded that Section 5(2)(a) of the U.P. Consolidation of Holdings Act has no impact on writ petitions or special appeals arising from them, where judgments or orders passed in suits or proceedings related to the declaration of rights in land covered by a notification under Section 4 of the Act are in challenge. The constitutional jurisdiction of the High Court under Article 226 remains unaffected.Judgment:The Full Bench answered the referred question by stating that Section 5(2)(a) of the Act does not affect writ petitions or special appeals arising from judgments or orders in suits or proceedings related to the declaration of rights in land covered by a notification under Section 4 of the Act.Summary:The High Court of Allahabad, in a detailed judgment, concluded that Section 5(2)(a) of the U.P. Consolidation of Holdings Act, 1953, does not impact writ petitions or special appeals arising from judgments or orders in suits or proceedings related to the declaration of rights in land covered by a notification under Section 4 of the Act. The Court emphasized that writ petitions under Article 226 are independent proceedings and not a continuation of the original suit or proceeding, thus remaining unaffected by the abatement provisions of Section 5(2)(a). The Court also highlighted the constitutional limitations on the State Legislature's power to curtail the High Court's jurisdiction under Article 226.