Judgment:
Shitla Prasad Srivastava, J.
1. This petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the order dated 27.5.1999 passed by the Deputy Director of Consolidation. Ballia.
2. The brief facts, as stated in the petition, which are relevant for the purpose of the present petition are that notification under Section 4 of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) was made in respect of village Chchitauni Ander, Pargana Lakhneshwar, district Ballia in the year 1960. A compromise was filed between the parties on 26.4.1968 before the Assistant Consolidation Officer in proceeding under Section 9 of the Act with regard to khata Nos. 34 and 84 in which it was stated that the plots recorded under the above khatas are ancestral property and the petitioner had 1/4 share. The compromise was given effect to by order of the Assistant ConsolidationOfficer dated 6.7.1968 and petitioner was recorded as co-tenant in the khata in question. The petitioner remained in possession of his share. It is stated that the order of the Assistant Consolidation Officer dated 6,7.1968 was never challenged before any consolidation authorities. Thereafter notification under Section 6 (2) of the Act was issued regarding the village in question.
3. It is stated that respondent No. 2, Sadhu Saran Singh has filed a time-barred appeal against the order dated 6.7.1968 passed by the Assistant Consolidation Officer. The appeal was dismissed on 11.6.1997 by the Assistant Settlement Officer, Consolidation. The aforesaid appeal was filed along with application under Section 5 of the Limitation Act after 28 years. The cause shown by the appellant for condonation of delay was that the appellant was in service of R. P. F. and after retirement, he had gone on pilgrimage for mental peace and remained in Haridwar attending satsang. The agricultural work was being done by his wife. But when he came to know that the area has been reduced, then he filed an appeal. The objection was filed by the petitioner that on 23.9.1982 respondent No. 2 executed a sale deed, therefore, he had knowledge of the order 14 years earlier and the delay of 14 years has not been explained. The appellate court dismissed the appeal on the ground that when there has been notification under Section 6 of the Act, the consolidation authorities have no jurisdiction to entertain any application, appeal in respect of the land for which notification under Section 6 of the Act has been made. It is further stated that the respondent No. 5, Sadhu Saran Singh preferred revision before the Deputy Director of Consolidation. The revision has been decided by the Deputy Director of Consolidation on 27.5.1999.
4. Before the provisional court, it was urged that no compromise was arrived at between the parties and the compromise is forged and fictitious one. It was further urged that the landis situated under the notified area, therefore, no notification under Section 4 of the Act should have been made and the notification ; under Section 6 of the Act, if made, was also without any authority of law. Therefore, the order passed by the Assistant Consolidation Officer in respect of the land in question which was situated within the notified area was without jurisdiction. The Deputy Director of Consolidation held that as the land is situated in village Chchitauni Ander, which is situated in the town area Rasra, therefore, notification under Section 4 of the Act could not have been made and if it was made under Section 6 (2) of the Act it was without any authority and the consolidation authorities have no jurisdiction to decide the controversy. As such he set aside the order dated 6.7.1968 by the Assistant Consolidation Officer on compromise and order dated 11.6.1997 passed by the Assistant Settlement Officer Consolidation. The petitioner has challenged the order passed by the Deputy Director of Consolidation, Ballia.
5. Sri Abhishek Kumar, learned counsel appearing for the petitioner and Sri Janardan Sahai, learned counsel appearing for the respondent No. 2 agreed that this petition may be disposed of at the admission stage itself without counter and rejoinder-affidavits as the only question bf jurisdiction of the consolidation authorities to decide the case is involved. The matter was heard finally at the admission stage.
6. Learned counsel for the petitioner urged that as notification under Section 4 of the Act was made and the parties have compromised before the Assistant Consolidation Officer in proceeding under Section 9 of the Act, which was not challenged, the matter became final and when notification under Section 6 of the Act was made appeal was not maintainable and there will be bar of Section 49 of the Act to entertain appeal and decide the same. His further submissions are that the appeal itself was not maintainable and the order dated 6.7.1968 waspassed after notification under Section 4 of the Act and before notification under Section 6 (2) of the Act, therefore, the order cannot be said to be without jurisdiction and it was neither forged nor fictitious. His last submission was that the consolidation authorities have no jurisdiction to entertain the appeal after the notification under Section 6 of the Act.
7. Sri Janardan Sahai, learned counsel for the respondent has opposed the petition on the ground that Act is only applicable to the area where Section 3A of the Act is applicable and it is not applicable to the notified area. Therefore, notification under Section 4 of the Act was without any authority of law. He has further urged that the appeal was maintainable even after notification under Section 6 of the Act. In view of Section 6 of U. P. General Clauses Act his submission is that Section 6 of the General Clauses Act deals with the effect of repeal. Therefore, the appeal was rightly filed with application under Section 5 of Limitation Act and when it was dismissed revision was filed and the Deputy Director of Consolidation has full jurisdiction to entertain the revision and quash the order. His further submission is that it is settled law that if the order was without jurisdiction and illegal it should not have been given effect to. His submission is that as there could not have been any notification under Section 6 of the Act and as the land was situated within the limit of town area, therefore, the compromise and order passed thereon was without jurisdiction. Therefore, if the order of the Deputy Director of Consolidation la set aside then it will amount giving effect to of an illegal order. His further argument was that the right of appeal is a vested right and it cannot be taken away except by process of law. It is substantive right.
8. After hearing learned counsel for the parties and before proceeding to discuss the matter further, it is necessary to quote the relevant provisions of the law. The consolidation of holding in respect ofany land starts with notification in the village after notification under Section 4 of the Act. Relevant Section 4 of the Act is quoted herein below :
'4. Declaration and notification regarding consolidation-
(1) (a) The State Government may, where it is of opinion that a district or part thereof may be brought under consolidation operation, make a declaration to that effect in the Gazette, whereupon it shall become lawful for any officer or authority who may be empowered in this behalf by the District Deputy Director of Consolidation-
(i) to enter upon and survey, in connection with rectangulation or otherwise and to take levels of any land in such area ;
(ii) (to fix pillars in connection with rectangulation, and) ;
(iii) to do all acts necessary to ascertain the suitability of the area for consolidation operations.
(b) The District Deputy Director of Consolidation shall cause public notice of the declaration issued under clause (a) to be given at convenient places in the said district or part thereof.
(2) (a) When the State Government decides to start consolidation operations, either in an area covered by a declaration issued under subsection (1) or in any other area, it may issue a notification to this effect.
(b) Every such notification shall be published in the Gazette and in a daily newspaper having circulation in the said area and shall also be published in each unit in the said area in such manner as may be considered appropriate'.
9. After notification under Sections 4 and 4A of the Act, the State Government under Section 6 of the Act has power to cancel and withdraw the notification issued either under Section 4 or 4A of the Act. The State Government has power to withdraw or cancel the aforesaid notification under Section 6 of the Act. The relevant Section 6 of the Act is quoted herein below :
'6. Cancellation of notification under Section 4.--(1) it shall be lawful for the State Government at any time to cancel then (notification) made under Section 4 in respect of the whole or any part of the area specified therein.
(2) Where a (notification) has been cancelled in respect of any unit under sub-section (1), such area shall, subject to the final orders relating to the correction of land records, if any, passed on or before the date of such cancellation, ceased to be under consolidation operations with effect from the date of the cancellation'.
10. Then Section 49 of the Act Comes into picture, which lays down the provisions regarding the finality of the order passed under the Act. Then there is provision of de-notification of the village under Section 5 of the Act. Both Sections 49 and 5 of the Act are quoted herein below :
'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 thedate 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 Section 4 (2) relates namely-
(a) the district or part thereof, as the case may be, shall be deemed to be under consolidation operations and the duty of maintaining the record-of-rights and preparing the village map, the field book and the annual register of each shall be performed by the District Deputy Director of Consolidation, who shall maintain or prepare them, as the case may be, in manner prescribed :
(b) (****)
(c) notwithstanding anything contained in the U. P. Zamindari Abolition and Land Reforms Act, 1950, no tenure holder, except with the permission in writing of the Settlement Officer Consolidation, previously obtained shall-
(i) use his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming : or
(ii) (****)
Provided that a tenure-holder may continue to use his holding, or any part thereof, for any purpose for which it was in use prior to the date specified in the notification issued (under subsection (2) of Section 4).
(2) Upon the said publication of the notification under subsection (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 record and every suit and proceedings in respect of declaration of right or interest in any land lying in the area, or for declaration and adjudication or 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 appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceedings 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 subsection (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 person 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 bedeemed to be a proceeding in respect of declaration of rights or interest, in any land.'
'49. Bar to civil jurisdiction.--Notwithstanding anything contained in any other law for the time being in force, the -declaration and adjudication of rights of tenure-holders in respect of land lying in an area, for which a (notification) has been issued (under Section (2) of Section 4) or adjudication of any other right arising out consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act.
(Provided that nothing in this Section shall preclude the Assistant Collector from initiating proceedings under Section 122B of the U. P. Zamindari Abolition and Land Reforms Act, 1950 in respect of any land possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act.'
11. As learned counsel for the parties have tried to interpret Section 6 of the General Clauses Act on the point of effect of Section 6 of the Act, it is necessary to quote herewith Section 6 of the General Clauses Act :
'6. Effect of repeal.--Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto make or hereafter to be made, then, unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeal takes effect ; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, (and any such investigation, legal proceeding or remedy may be instituted continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed'.
12. The point to be decided is as to whether the notification under Section 4 of the Act can be issued in respect of the land which is situated in the town area and if it cannot be issued and subsequently the State Government has cancelled the notification under Section of the Act and orders have been passed in between the days of notification under Section 4 and under Section 6 of the Act. The second point is that if under Section 6 of the Act notification has been made whether Section 6 of the General Clauses Act will amount repealment of the Act and right of appeal still survive under Section 11 of the Act. Learned counsel for the petitioner has submitted that Section 6 of U. P. General Clauses Act speaks --effect of repeal--were any Uttar Pradesh Act repeals any enactment hitherto made or hereafter to be made then unless a different intentionappears the repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered. He has placed reliance in a case in : AIR1996SC1963 , specially paragraphs 30 and 31 for the purpose that previous operation of the Act would not affect nor will repeal affect anything duly done. His submission is that the order of the Assistant Consolidation Officer, after notification under Section 4 of the Act and before notification under Section 6 of the Act, was final and thereafter the right which was given to him on the basis of the compromise cannot be nullified by the Deputy Director of Consolidation when he has no jurisdiction after Section 6 notification. For that purpose he has placed reliance in a case in : AIR1996SC1963 and has stated that the order passed by the Assistant Consolidation Officer is not without jurisdiction placing reliance on Section 6 (c) of the U. P. General Clauses Act he has submitted that the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment, the order of a competent authority cannot be said to be without jurisdiction. For that purpose he has placed reliance in a case in : AIR1950Pat505 at 506. He has further placed reliance in a case in : AIR1964AP380 , for the purpose that right once acquired cannot be taken away even if the Act was repealed. His submission is that in this case it has been held that right to Transfer of Property Act was preserved even after repeal of Section 31 of 1937 Act by the Hindu Succession Act, 1956. Learned counsel for the petitioner has placed reliance in a case in AIR 1953, Avadh, 156, and has urged that the Court has held that repeal of Sections 92 and 93 of the Transfer of Property Act, 1882, by the C.P.C. 1908, had not taken away the right under the decree of redemption which has been acquired by the aforesaid sections. While interpreting Section 6 (c) of the U. P. General Clauses Act learned counsel for the petitioner has urged that had there been any appeal pending before notification under Section 6 of the Actthen the respondent had right to continue that appeal but as notification was made and subsequently appeal was filed the appeal was filed under the provisions of a dead statute, therefore, the Court has no jurisdiction, For that purpose he has distinguished : [1967]65ITR656(SC) , on which reliance was placed by learned counsel for the petitioner in the beginning of his argument.
13. Sri Janardan Sahai, learned counsel for the respondent has urged that an appeal can be filed even after notification under Section 52 of the Act. His further submission is that Section 52 of the Act provides that after the consolidation operation have been closed, the unit and the village or villagers forming part of the unit shall then ceased to be under consolidation operation. He has placed reliance in a case in Ram Rati v. Deputy Director of Consolidation, Banda and others, 1993 RD 204, for the purpose that appeal which was not pending on the date of de-notification under Section 52 of the Act could be filed after the de-notification and Section 53B of the Act which provides for application of Section 5 of the Limitation Act. His submission is that the alleged compromise was on the basis of notification made under Section 4 of the Act which was without any authority of law and the land was situated in town area, therefore, the order was not passed by the competent authority and it cannot have the effect of any finality under Section 49 of the Act. For that purpose he has placed reliance on a case in Harivansh Bahadur v. State of U. P., 1980 RD 149, in which notification under Section 4 (2) of the Act was quashed which was issued in respect of the land situated in municipal area. Further reliance was placed in a case in Maharaj Singh v. Deputy Director of Consolidation, Bareilly and others, 1990 ALJ 174 and Ram Lal and others v. Deputy Director of Consolidation, Hamirpur, 1988 RD 309. His further submission is that if the order of the Assistant Consolidation Officer is restored it will become of restoring an order without jurisdiction. For that purposehe has placed reliance in a case in : [1988]1SCR840 , Mohammad Swalleh and others v. III Additional District Judge, Meerut : 1998(1)AWC776 . Raghunath v. Deputy Director of Consolidation, Jaunpur and others. : AIR1978All27 , Smt. Depika Elizabeth Couto v. Gabrial Anthony Couto and others, 1976 ALR 326.
14. He has further submitted that the affect of repeal is given under Section 6 of the General Clauses Act which says that the repeal shall not affect any right, privilege, obligation, liability acquired, accrued or incurred under any enactment so repealed, or affect any remedy, or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. His submission is that according to Section 6 of U. P. General Clauses Act any such remedy may be enforced any such investigation or legal proceeding may be continued and concluded, and any such, penalty, forfeiture or punishment imposed as if the repealing Act had not been passed. For that purpose he has placed reliance in a case in Garikapti Veerays v. N. Subbia Chaudhary and others : [1957]1SCR488 . He has further submitted that according to the decisions aforesaid the legal pursuit of a remedy, suit, appeal or second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. He has further submitted that right of appeal is not a mere matter of procedure but is a substantive right. It is vested right which cannot be taken away except by subsequent enactment. For that purpose he has placed reliance in a case in Ramesh Singh and another v. Chinta Devi and others : [1996]2SCR1036 , G. Ekambarappa and others v. Excess Profit Tax Officer, Bellary, : [1967]65ITR656(SC) .
15. After hearing learned counsel for the parties and going through various provisions of the Act and of U. P. General Clauses Act and readingthe decisions placed by the learned counsel for the parties, I am of the view that question of jurisdiction and legal interpretation of the provisions of statute are involved in this case. It is true that the State Government has power to issue notification under Section 4 of the Act in respect of the area, which comes according to the notification under the Consolidation of Holdings Scheme. But similarly the State Government has also power to cancel the notification under Section 6 of the Act. Admittedly, notification issued was cancelled and thereafter the appeal was filed. Therefore, the question is as to whether the appeal can be filed after notification under Section 6 of the Act. Section 11 of the Act deals with the filing of the appeal against the order under Section 9 of the Act. Relevant Section 11 of the Act is quoted below :
'Appeals.--(1) Any party to the proceedings under Section 9A aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer under that Section, may within 21 days of the date of the order, file an appeal before the Settlement Officer. Consolidation who shall after affording opportunity of being heard to the parties concerned give his decision thereon, which except as otherwise provided by or under this Act, shall be final and not be questioned in any Court of law.
(2) The Settlement Officer, Consolidation hearing an appeal under sub-section (1) shall be deemed to be a Court of competent jurisdiction, anything to the contrary contained in any law for the time being in force notwithstanding'.
16. A bare perusal of this Section would show that the appeal was maintainable. Only in respect of the land situate in the area which was covered under the Act and when there was no Act, Section 11 of the Act does not apply. Therefore, to my mind, when notification under Section 6 of the Act has been issued under the Act, no appeal was maintainable. Now the question arose as to whethera notification could have been issued under Section 4 of the Act in respect of the area which was situated within the limit of town area and if it could not have been issued, then what is the effect of the orders passed by the consolidation authorities during the continuance of the proceeding on the basis of such notification (may be without authority of law).
17. Since there is no dispute that an order was passed on the basis of the compromise during the continuation of the proceeding under the Act. Therefore, unless the notification under Section 4 of the Act is quashed, the Act done by the consolidation authorities shall be deemed to be valid in accordance with law and within their competence and jurisdiction. Admittedly, the State Government itself has cancelled the notification. Notification under Section 6 of the Act is not on record, therefore, it is not possible to show as to what was the ground of cancellation of the notification issued under Section 4 of the Act. Therefore, the finding recorded by the Deputy Director of Consolidation that the order passed by the Assistant Consolidation Officer is without jurisdiction is to be seen after seeing the reasons mentioned in the notification under Section 6 of the Act. As counter-affidavit has not been filed and the Deputy Director of Consolidation by exercising power under Section 48 of the Act has also not summoned the notification, the-order cannot be said to be an order, based on sound reasoning. Notification under Section 6 of the Act, is also not here to appreciate the argument of learned counsel for the petitioner. Therefore, I think it is a fit case, which should be sent back to the Deputy Director of Consolidation after quashing his order dated 27.5.1999. The provisions of Section 6 of the U. P. General Clauses Act can only be interpreted and applied if the notification under Section 6 of the Act and its effect is seen.
18. I, therefore, allow the writ petition and set aside the judgment passed by the Deputy Director of Consolidation dated 27.5.1999 andremand the case to the DeputyDirector of Consolidation with adirection to restore the revision to itsoriginal number and decide it afreshin accordance with the observationsmade above. However, there will beno order as to costs.