Dwivedi, J.
1. M/s. Upper Ganges Sugar Mills Ltd. (hereinafter called the Company) has filed this writ petition. It appears that the Company did not file a statement in respect of its holdings as required by Section 9 of the Imposition of Ceiling on Landholdings Act (hereinafter called the Act). The Prescribed Authority accordingly prepared a statement of its holdings, mentioning the plots proposed to be declared as surplus land. This statement was served upon it in accordance with Section 10 (2). It was required to show cause why the statement should not be taken to be correct. The Company filed an objection. While the objection was pending, the Dhampur Sugar Mills Ltd., the fourth respondent, filed an application before the Prescribed Authority. The respondent claimed to be the exclusive tenure-holder of certain plots mentioned in the statement and wanted to be impleaded as a party in the proceedings. The Prescribed Authority rejected the application. On appeal, the Civil Judge has set aside the order and directed the Prescribed Authority to implead the respondent as a party and to decide its claim in accordance with law. The writ petition is directed against his order.
2. When the petition came up for hearing before Sri Justice Satish Chandra, theCompany argued before him that the Actdoes not envisage the filing of a claim tothe plots shown in the statement preparedunder Section 10 (1) by a stranger to theproceedings started under Section 10 (2).The company relied on a decision of thelearned Judge himself. (Kesar SugarWorks v. State, 1967 All LJ 551). Therespondent opposed this argument andcounterposed the decision of anotherlearned Judge (Bageshwari Devi v. S. B.Pandey, 1965 All LJ 756), There is anobvious conflict between these two decisions. So the learned Judge referred aspecific question to a larger bench foropinion. That question, after some verbalalterations made by us, is:
'Is a person who claims to be the tenure-holder but is not so recorded in the revenue papers entitled to file an objection to the statement which is prepared under Section 10 (1) of the Act and Issued to another person under Section 10 (2) of the Act?'
3. The scheme of the Act is to provide for the acquisition by the State of the surplus land of a tenure-holder and for its redistribution among the landless. With this end in view it imposes a ceiling on landholding, and acquires the area in excess of the ceiling. Chapter II of the Act contains provisions for the imposition of ceiling on landholdings and acquisition of the surplus land by the State. It comprises Sections 5 to 16. Section 4 Imposes a ceiling of 40 acres on the existing land-holdings. Section 5 provides that no tenure-holder shall hold an area in excess of the ceiling area. Under Section 9 the Prescribed Authority publishes in the Gazette a general notice calling upon every tenure-holder holding land in excess of the ceiling area to submit to him within 30 days of the publication of the notice a statement in respect of all his holdings in the prescribed form. He has also to specify the plots which he would retain as part of his ceiling area. Section 10 deals with the contingency of the tenure-holder's failure to submit a statement. It consists of two sub-sections. Under subsection (1) the Prescribed Authority shall cause to be prepared a statement containing such particulars as may be prescribed, The statement shall also indicate the plots proposed to be declared as surplus land. Under Sub-section (2) the Prescribed Authority serves 'upon every such tenure-holder' a notice together with a copy of the statement prepared under sub-section (1) and calls upon him 'to show cause within a period specified in the notice why the statement be not taken as correct'. As some controversy raged round the meaning of Section 11 (1) and (2), it is necessary to reproduce these sub-sections in extenso. Section 11 (1) provides:
'Where the statement submitted by a tenure-holder in pursuance of the notice published under Section 9, is accepted by the Prescribed Authority or where the statement prepared by the Prescribed Authority under Section 10, is not disputed within the specified period, the Prescribed authority shall accordingly determine the surplus land of the tenure-holder',
Section 11 (2) provides:
'The Prescribed Authority shall, on application made within thirty days from the date of the order under Sub-section (1) by a tenure-holder aggrieved by such order passed in his absence and on sufficient cause being shown for his absence set aside the order and allow such tenure-holder to file objection against the statement prepared under Section 10 and proceed to decide the same in accordance with the provisions of Section 12'.
4. Section 12 provides that where an objection has been filed under Section 10 (2) or Section 11 (2), the Prescribed Authority shall, after hearing the Parties decide the objections and determine the surplus land. Section 14 comprises eight sub-sections. Sub-section (1) requires the Prescribed Authority to notify in the Gazette the surplus land determined by him or in appeal. Sub-section (2) states that all such surplus land shall stand transferred and vest in the State free from all encumbrances and all rights, title and interests of all persons in such land shall stand extinguished from the date of the notification. Sub-section (3) reads:
'On the publication of the notification under Sub-section (1), any person claiming interest as a tenure-holder or a lessee in possession from the tenure-holder, in the surplus land in respect of which the notification has been published, may within thirty days thereof, file an objection before the Prescribed Authority indicating the extent of his interest in such land.'
Sub-section (4) provides for a hearing to the objector, the tenure-holder concerned and the State and for decision. Other subsections are not relevant for our purposes and so are not touched upon.
5. It is obvious from these provisions that the object of the Act is to acquire the surplus land of a person and vest it in the State free from all encumbrances and titles. This object is achieved in two stages. In the first stage, the Prescribed Authority determines the surplus land of a person; in the second stage, the Prescribed Authority enquires into the claims of a third person to the surplus land. It is only when his claim is rejected that the surplus land vests in the State, otherwise not. The Prescribed Authority is given power to decide claims to the surplus land with the object of vesting a perfectly certain title in the State. The Act contains no express provision enabling him to decide in the first stage third party claims to the land mentioned by the tenure-holder in his statement under Section 9 or in the statement sent to him under Section 10 (2), The reason is plain. It is not the purpose of the Act to constitute the prescribed Authority a new forum for decision of disputes regarding rights to agricultural land which has not been declared surplus land. Such disputes are to be decided by the ordinary revenue Courts. It is said that Section 11 will enable the Prescribed Authority to decide a third party claim in the first stage. I do not think so. Section 11 should be read in the background of Section 10. It will follow from a conjoint reading of these sections that the only person who can dispute the statement prepared under Section 10 (1) is the tenure-holder to whom that statement is furnished under Section 10 (2). Section 11 (2) also does not provide for a third party claim in the first stage. The expression 'a tenure-holder aggrieved by such order in Section 11 (2) will not include any person other than the tenure-holder to whom, the statement prepared under Section 10 (1) is furnished.
This inference is supported by two expressions which follow the foregoing expression in Section 11 (2): (1) 'In his absence' and (2) 'On sufficient cause being shown for his absence'. These are strong expressions. And they imply three things: (1) a prior obligation to appear at a certain place and at a certain time; (2) consequential blame on account of non-appearance; (3) explanation for the blameworthy non-appearance. If a person not required to be present is not present, one does not speak of his being absent. So a third party to whom notice has not gone under Section 10 (2) will not be included in the expression 'a tenure-holder aggrieved by such order'. The words 'aggrieved by such order' have been added for the purpose of precluding the making of an application under Section 11
(2) by the tenure-holder to whom a notice was sent under Section 10 (2) where the order, though passed in his absence, does not cause any prejudice to him. These words do not enlarge the meaning of the word 'tenure-holder' so as to comprehend a third party. Nor will the use of the indefinite article 'a' before 'tenure-holder to expand its arms as to embrace a third party. Read in its proper setting. Section 11 (2) does not envisage a third-party claim.
6. Section 11 (2) resembles Rule 13, Order 9, Code of Civil Procedure. So a person, who is not a party to the proceeding upto the stage of Section 11 (1), could not have been intended to be given a chance to get the ex parte order regarding surplus land set aside; all the more so when he is given a chance under Section 14 (3). The interpretation suggested by the respondent should not be accepted as it makes Section 14 (3) a superfluity. The absence of a provision for notice to a third party before Section 11 (2) of the proceedings also weighs against this interpretation.
7. The Prescribed Authority is a statutory creation. He can enjoy only such powers as are conceded to him by the Act expressly or by necessary implication. It is said that Section 10 (1) impliedly allows him to entertain a third-party claim in the first stage. I am unable to read any such implication in that provision. Of course the Prescribed Authority is given the power not to accept an incomplete or incorrect statement submitted by a tenure-holder under Section 9. But the power of not accepting an incomplete or incorrect statement does not imply power of a different nature, namely, the power of entertaining a third-party claim in the first stage.
8. It is pointed out that the interpretation suggested by me will work hardship on a person whose exclusive claim to holding is lost in the second stage on the acceptance of the objection of a third person that he is a co-tenure-holder. Suppose A is recorded as the sole-tenureholder of an 80 acre holding. He bona fide believes that he is the sole tenure-holder. He can retain 40 acres with him; the remaining 40 acres will be declared as his surplus area. In the second stage B files an objection that he is a co-tenure-holder and has a half share in the entire holding. If his objection is upheld, he will get back 20 acres out of the 40 acres declared as surplus land. He will also have 20 acres from the 40 acres retained by A. So in the end A is a loser; he retains only 20 acres although he was also entitled to 40 acres.
9. I do not think that A will in the end be a loser. When the objection of B is decided in his favour in the second stage, A can be relieved under Section 151, Code of Civil Procedure, by restoration of 20 acres of land to him. Section 151 will apply to such a case by virtue of Section 37 of the Act. Sections 11 (3) and 12 (2) will not debar the Prescribed Authority from, acting under Section 151.
10. In Raia Yuvaraj Datt Singh v. Prescribed Authority Ta'hsil, Lakhimpur, 1968 All LJ 292 = (AIR 1968 All 305) (FB) a Full Bench has said:
'From the scheme of the Act it is clear that there are only two parties before the Prescribed Authority that is, the tenure-holder and the State. The transferees (third party) are not parties before it and the Prescribed Authority has no jurisdiction to take into consideration their rights or to determine them'.
(Words in brackets mine).
I respectfully agree with this interpretation.
11. If the question referred to us is answered in the affirmative, a third person, who claims as a tenure-holder the surplus land or any portion thereof determined under Section 11 (1), will have a right to file an objection to such determination. The word 'tenure-holder' is defined in Section 3 (1) as the holder of a holding. 'Holding' is defined in Section 3 (d) as the land held by a person 'as a bhumidhar, sirdar, asami of Gaon Samaj or an asami mentioned in Section 11' of the Zamindari Abolition and Land Reforms Act or 'as a tenant under the U. P. Tenancy Act, 1939, other than as a subtenant.' So the asami of a person belonging to any of the classes mentioned in Section 157, Zamindari Abolition and Land Reforms Act is not a tenure-holder; nor a sub-tenant under the Tenancy Act. Neither of them can file an objection under Section 11 (2) to the determination of surplus land under Section 11 (1). But they can file an objection to it under Section 14 (3). One may legitimately ask as to why the Legislature denied them an opportunity under Section 11 (2). There appears to be no proper reason for their being treated differently from the tenure-holder as defined in the Act. In my view. an interpretation which results in invidious discrimination of a class of persons should not commend itself to the Court. If the legislature had intended a third party objection under Section 11 (2), it would not have denied his right to them.
12. For the reasons already discussed I would answer the question in the negative.
Gangeshwar Prasad, J.
13. I have had the benefit of reading the judgment of my learned brother Dwivedi; but I regret I am not able to concur in his opinion.
14. The question to be decided by this Bench relates to the interpretation of certain provisions of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act (hereinafter called the Act) and is in following terms:
'Is a person who claims to be the tenure-holder but is not so recorded in the revenue papers entitled to file an objection to the statement which is prepared under Section 10 (1) of the Act and issued to another person under Section 10 (2) of the Act?
15. In the form in which the question has been formulated it is a composite question, and for a proper appreciation of its scope and implications it is necessary to split it up. What has first to be determined is whether the fact that a person claiming to be a tenure-holder is not recorded as such in the revenue records itself disentitles him to file an objection to the statement prepared under Section 10 (1) of the Act and issued to another person under Section 10 (2) of the Act. The next thing to be determined is whether a tenure-holder, even if he is so recorded, is entitled to file an objection to such statement issued to another person under Section 10 (2) of the Act. Determination of the above questions necessarily involves examination of some other matters too which are not, strictly speaking, within the ambit of the question which this Bench has to answer but which have vital bearing on that question and must materially affect the answer to it. Those matters, therefore, have also to be dealt with,
16. The expression 'tenure-holder' has been defined in the Act. Unless, therefore, the meaning given to it by the definition is repugnant in the context and the subject-matter of the provisions dealing with the procedure for determination and acquisition of surplus land, it would not be permissible to ignore the definition or to introduce into it any limitation not; imposed by the Act. As will presently be seen there is not only a complete absence of any repugnancy but the provisions in regard to the above matters can be fully carried into effect only when the expression 'tenure-holder' used therein is understood in the plain terms of its definition. And it would, indeed, be strange if the definition provided by the Act for the expression 'tenure-holder' became repugnant or inappropriate in the provisions relating to the very first and the most essential step towards the acquisition of surplus land. Section 3 (1) defines. Tenure-holder' as 'an individual or a person who is the holder of a holding'; and it is, therefore, obvious that for being a tenure-holder under the Act a person has to fulfil no other qualification except that of being the holder of a holding. The definition, therefore, leaves entries in the revenue records altogether out of account.
17. Section 4, which lays down what the ceiling area of a tenure-holder shall be, provides in Sub-section (1) that 'subject to the provision of this Act, the ceiling area applicable to a tenure-holder shall be calculated after taking into account all the land in any holding in the State held by him in his own right, whether in his own name or ostensibly in the name of any other person.' Thus, the fact that a land is not recorded in the name of a person is not a matter of any consequence in the determination of the ceiling area, and all the land that a person really holds has to be treated as his, irrespective of the fact that somebody else is the ostensible holder of any such land. Section 4 (1) emphasises the generality of the words used in the definition of 'Tenure-holder' and furnishes a key, if one is at all needed, to the interpretation of that expression in the provisions that follow.
18. Section 9 provides for general notice and not for notice addressed to particular individuals. The notice issued under the above section calls upon every tenure-holder to submit a statement of all his holdings, and in the light of the definition of the term 'Tenure-holder' and Section 4 (1), it is manifest that no real tenure-holder can claim exemption from the operation of the notice under Section 9 or from the consequent obligation to submit a statement merely by reason of his name not being recorded as such in the revenue records.
19. When the Prescribed Authority proceeds to act under Section 10 the field of his enquiry is not limited to the statements filed in response to the notice issued under Section 9 or to the persons actually filing the statements. He has to conduct an enquiry whether a tenure-holder liable to submit a statement has failed to do so and also whether the statement submitted by a tenure-holder is correct. In the investigation of neither of these questions is the Prescribed Authority required or expected to treat as conclusive the entries respecting a land in the revenue records and he has to ascertain whether any tenure-holder in fact holds land in excess of the ceiling area applicable to him on the date of the enforcement of the Act. In doing so he has, by the very terms of Section 4 (1), to ignore entries which though ostensibly showing another person as the holder of a holding, do not represent the real state of things. Entries incorrect from their inception, continuance of entries after a change has become necessary as a result of subsequent events or transactions, entries incomplete by reason of omission to mention the names of all such persons as have an interest in a land, and entries in favour of mere Benamidars--all these are familiar features of the revenue records; and it is not conceivable that the Act could have intended that the Prescribed Authority should accept the revenue records as final in the course of his enquiry. Having regard to the language as also the object of the Act, it is plain that the Prescribed Authority can, after the enquiry under Section 10 (1), issue a notice under Section 10 (2) to a tenure-holder who is not recorded as such in the revenue records and has not submitted a statement after notice under Section 9. The Prescribed Authority is to be guided not by the ostensible but by the real title to a land.
20. The words 'such tenure-holder' in Section 10 (2) refer to the tenure-holder mentioned in Section 10 (1) and, therefore, comprehend both a tenure-holder who has failed to submit a statement and a tenure-holder who has submitted an incomplete or incorrect statement. Now if the Prescribed Authority is bound, as he clearly is, to issue a notice together with a copy of the statement prepared by him under Section 10 (1) to a tenure-holder who holds land in excess of the ceiling area applicable to him, although he is not recorded as such in the revenue records, it should follow as a necessary consequence that such tenure-holder is entitled to show cause against the statement prepared by the Prescribed Authority. In fact, the notice issued to him would itself require him to show cause. If a notice under Section 10 (2) may be issued to a tenure-holder who is not recorded as such in the revenue records he has to be treated as a tenure-holder for other purposes as well. The position, therefore, is that under the definition of the term 'Tenure-holder' and the scheme of the Act the holder of a holding has to be considered to be a tenure-holder, whether or not he is recorded as such in the revenue records and there is nothing in the provisions of the Act that precludes him from the right of filing an objection to the statement issued by the Prescribed Authority to another person. The disability, if any, must arise from a reason other than that he is not recorded as a tenure-holder in the revenue records.
21. The question then is whether a tenure-holder, even if he is so recorded in the revenue records, can file an objection under Section 10 (2) if the Prescribed Authority has not served upon him the notice and the statement referred to in that provision and has not called upon him to show cause why the statement be not taken as correct. As distinguished from the general notice issued under Section 9, the notice issued under Section 10 (2) is one directed to a certain specified individual and it calls upon him and nobody else to show cause against the acceptance of the statement accompanying the notice. There is consequently nothing in Section 10 (2) that may entitle a tenure-holder who has not been served with notice under the provision to file an objection to the statement mentioned therein. Further, the right to file an objection, if it is to have some meaning and juridical efficacy, must carry with itself the right to have the objection adjudicated and, therefore, there has to be a corresponding power in the Prescribed Authority to adjudicate. If the power to decide the objection is found to be clearly lacking in the Prescribed Authority, the inference would naturally be that the right to file the objection has also not been given. The power of adjudication conferred upon the Prescribed Authority has, therefore, to be examined, bearing in mind the fact that he has been constituted under the Act, derives his authority solely from the provision of the Act, and can exercise only such powers as have been conferred upon him by the Act.
22. Section 10 (2) does not provide for any determination or enquiry. The procedure governing the proceedings subsequent to the expiry of the period specified in the notice issued under Section 10 (2) is contained in Sections 11 and 12 which are reproduced below:
'11. Determination of surplus land where no objection is filed-- (1) Where the statement submitted by a tenure-holder in pursuance of the notice published under Section 9, is accepted by the Prescribed Authority or where the statement prepared by the Prescribed Authority under Section 10, is not disputed within the specified period, the Prescribed Authority shall accordingly, determine the surplus land of the tenure-holder.
(2) The Prescribed Authority shall, on application made within thirty days from the date of the order under Sub-section (1) by a tenure-holder aggrieved by such order passed in his absence and on sufficient cause being shown for his absence set aside the order and allow such tenure-holder to file objection against the statement prepared under Section 10 and proceed to decide the same in accordance with the provisions of Section 12.
(3) Subject to the provisions of subsection (2) and Section 13, the order of the Prescribed Authority shall be final and conclusive and be not questioned in any Court of law.
12. Determination of the surplus land by the Prescribed Authority where an objection is filed. (1) Where an objection has been filed under Sub-section (2) of Section 10 or under Sub-section (2) of Section 11, or because of any appellate order under Section 13, the Prescribed Authority shall, after affording the parties reasonable opportunity of being heard and of producing evidence, decide the objections after recording his reasons, and determine the surplus land.
(2) Subject to any appellate order under Section 13, the order of the Prescribed Authority under Sub-section (1) shall be final and conclusive and be not questioned in any Court of law'.
It is apparent that Section 11 (1) deals with situations in which there is no dispute at all i.e., when either the statement submitted by a tenure-holder in response to the general notice issued under Section 9 is accepted by the Prescribed Authority or no objection is taken to the statement prepared by the Prescribed Authority within the period specified in the notice served under Section 10 (2). Certainly, the word 'disputed' used in Section 11 (1) is not qualified by any such words as 'the tenure-holder upon whom a notice has been served under Sub-section (2) of Section 10'; but the provision aforesaid indicates that the dispute spoken of in It is a dispute raised by a tenure-holder upon whom a notice has been served under Section 10 (2). Firstly, the words 'within the specified period' refer to the period mentioned in the notice served under Section 10 (2) and the words 'is not disputed within the specified period' should, therefore, be regarded as having reference to a person who has been called upon to dispute the correctness of the statement prepared by the Prescribed Authority if he so desires within the specified period. Secondly, Section 11 (1) is not a provision enabling the raising of a dispute and it only lays down what the Prescribed Authority has to do when either the statement filed by a tenure-holder is accepted or the statement prepared by the Prescribed Authority 'is not disputed'. In other words, it does not empower anybody to raise a dispute but directs the Prescribed Authority to proceed to determine the surplus land of the tenure-holder in the absence of any dispute raised under the preceding provision, i.e. Section 10 (2). Thirdly, it would be seen that Section 11 (1) does not itself authorise the Prescribed Authority to decide any dispute nor does it indicate what he has to do in the event of a dispute.
Surely, the power to raise a dispute must have as its counter-part the power of the Prescribed Authority to decide it; and if the scope of the power to decide conferred upon the Prescribed Authority is confined to a dispute raised by a certain kind of person, the power of raising a dispute must likewise be regarded as confined to such person alone. The provision which gives the Prescribed Authority the power to decide the dispute raised before him is Section 12 (1) and there is no other provision which invests him with that power. Section 12 (1) expressly lays down in what situations the Prescribed Authority can act thereunder and they are: (1) Where an objection has been filed under Section 10 (2), and (2) where an objection has been filed under Section 11 (2). The words 'or because of any appellate order under Section 13'--which, one must say, are not very happy and appropriate--occurring in Section 12 (1) do not really provide for any third situation, and all that they mean is that the power conferred by the provision is exercisable by the Prescribed Authority not only when he himself treats an objection as having been properly filed under Section 10 (2) or under Section 11 (2) but also when he is directed to treat an ob-3'ection as such by an appellate order made under Section 13. It will be noticed that Section 13 provides for an appeal only by a person who is aggrieved by an order under Section 11 (2) or Section 12 and, therefore, one has ultimately to go back to the two situations specified in Section 12 (1).
Patently, Section 12 (1) does not speak of any objection filed under Section 11 (1) and the two types of objections in relation to which it confers a judicial power upon the Prescribed Authority are an objection under Section 10 (2) and an objection under Section 11 (2). The result is that an objection not covered by the two categories mentioned in Section 12 (1) cannot form the subject-matter of a decision by the Prescribed Authority. It seems, therefore, clear that the Act does not contemplate an objection under Section 11 (1) and it provides neither for an adjudication of any such objection nor for an appeal against any order passed thereon. The only objections contemplated by the Act are those mentioned in Section 10 (2) land Section 11 (2). I have already stated that in my view the language of Section 10 (2) does not admit of the construction that even a person upon whom a notice has not been served thereunder and who has not been called upon to show cause why the statement prepared by the Prescribed Authority be not accepted as correct is entitled to file an objection under Section 10 (2). The result, therefore, is that such person can neither file an objection under Section 10 (2) nor under Section 11 (1).
23. If Section 12 had also provided for the decision of an objection filed under Section 11 (1), there could certainly have been no doubt then about the entertain-ability of an objection under Section 11 (1), and it might, in that case, have been possible to hold that the correctness of the statement prepared by the Prescribed Authority can be disputed by any person, whether or not notice has been served upon him under Section 10 (2). As Section 12 stands, however, it restricts the jurisdiction of the Prescribed Authority to deciding only such objections as may be made under Section 10 (2) and Section 11 (2) and it thus rules out the making of any objection under Section 11 (1) by any person.
24. But even though a tenure-holder upon whom no notice under Section 10 (2) has been served is not entitled to file an objection under that provision, a situation may arise when his claim to a land covered by the statement prepared by the Prescribed Authority may have to be considered and decided. Suppose A, a tenure-holder has received a notice and a statement under Section 10 (2) showing him to be the holder of a land which is not recorded in his name in the revenue records and he files an objection under Section 10 (2) saying that the land is not held by him but by B and that he does not hold land in excess of the ceiling area applicable to him. This objection has to be decided by the Prescribed Authority under Section 12 and the matter for decision would naturally be whether the land in question is held by A or by B. Obviously, for an effective and complete decision of that matter it is essential that B too should be heard and if he claims to be the holder of the land in question his claim should be considered. If the Prescribed Authority is not competent to make B a party to the enquiry under the provisions of the Act, B cannot of course have his claim considered, howsoever desirable that may be; but if the Prescribed Authority has the power to do so there seems to be no reason why the claim of B should not be considered if he has been made a party-Section 37 of the Act invests the Prescribed Authority with all the powers and privileges of the Civil Court, in so far as they may be applicable, in holding an enquiry or hearing an objection under the Act, and it also requires him to follow the procedure laid down in the Code of Civil Procedure for the trial and disposal of suits relating to immovable property. The prescribed authority may, therefore, under Order 1, Rule 10 (2) of the Code of Civil Procedure add the name of any person as a party to the proceeding before him, if his presence is necessary to enable him effectually and completely to decide and settle the question involved in the proceeding. In doing so and hearing in support of the claim made by him, the Prescribed Authority would not at all be enlarging the scope of the powers vested in him under the provisions of the Act. He would still be acting under Section 12, because an objection under Section 10 (2) has been filed by A, the tenure-holder upon whom notice has been served, and he would still be deciding the objection of A and determining his surplus land, with only this difference that he will be deciding the objection in the presence of B as well. The position, as I see it, is that if A accepts the statement prepared by the Prescribed Authority and does not dispute its correctness by filing any objection no other person has a right to intervene in the proceeding under Section 10 (2) and interrupt its course, and the Prescribed Authority must in that case proceed to determine his surplus land under Section 11 (1). It is only when A himself objects to the statement prepared by the Prescribed Authority that the Prescribed Authority may exercise the power given by Order 1, Rule 10 (2) of the Code of Civil Procedure at the stage of Section 10 (2) of the Act.
The disowning of a land by A materially affects the statement prepared by the Prescribed Authority and necessarily also the determination of A's surplus land. The object of making B a party in such a case would not be an adjudication of any dispute between A and B (because A has disowned the land) but an effective and complete adjudication of the objection of A to the statement prepared by the Prescribed Authority. If B is not made a party by the Prescribed Authority B's rights remain unaffected, but if the Prescribed Authority chooses to make him a party under Order 1, Rule 10 of the Civil P. C. the objection of A and the claim of B are both effectively and completely decided. And this is as it should be. If A has clearly said in his objection that he does not hold a land shown as his in the statement prepared by the Prescribed Authority and there is nothing to show that the objection is manifestly false, it is but proper that the objection be disposed of in the presence of B also who, according to A, is the holder of the land in question, because otherwise the land may be treated as A's by the Prescribed Authority for determining his surplus land and yet be retained or claimed by B whose title to it has been admitted by A. It is true that considerations of supposed or real hardship are not to affect the interpretation of a statute where the language used by it is plain and unambiguous; but it is also well recognised that where the language of a statute is fairly capable of a meaning which will prevent unjust consequences and avoid anomalies, that meaning has to be preferred to one which may lead to opposite results. The construction which permits the deciding of the objection of A in the presence of B, not only does no violence to the language used in the Act but appears to be in perfect harmony with it and obviates results which the legislature could not, in my opinion, have intended.
If A, the tenure-holder who has received notice under Section 10 (2) has not himself filed an objection, the aforesaid provision does not permit B to prefer any claim, but if A has filed an objection and B is thereafter made a party by the Prescribed Authority the question whether the land to which the objection relates belongs to A or to B has to be finally adjudicated. The very object of the power conferred by Order 1, Rule 10 (2) of the Code of Civil Procedure is to effectively and completely adjudicate and settle questions involved in a proceeding, and it cannot therefore, in my opinion, be doubted that once the Prescribed Authority exercises the aforesaid power and decides the objection of A in the presence of B, the decision is final subject of course to the appeal provided by Section 13. I have dwelt at some length on this matter only to show that the determination of the right of a person upon whom no notice under Section 10 (2) has been served is not outside the scope of the Act.
25. It may be asked why a tenure-holder who has not received notice under Section 10 (2) of the Act should not also be able to file an objection under that provision if- on his being added as a party by the Prescribed Authority his claim may be decided under Section 10 (2) by the Prescribed Authority. The reasons, to my mind, are clear. Firstly, the words of Section 10 (2) do not contemplate such an objection and Section 12 empowers the Prescribed Authority to decide only two kinds of objections viz. objection under Section 10 (2) and objection under Section 11 (2). Secondly, the Act is in the main concerned with the person whose surplus land is intended to be acquired and if he does not dispute the statement prepared by the Prescribed Authority the proceedings are not to wait for the decision of disputes between him and other persons, and the Prescribed Authority has to proceed under Section 11 (1) to determine the surplus land of the tenure-holder upon whom a notice under Section 10 (2) has been served. And thirdly, it is quite likely that upon a consideration of the objection of the tenure-holder upon whom a notice under Section 10 (2) has been served the Prescribed Authority comes to the conclusion that the tenure-holder has no surplus land at all, and in that case the question of any further proceedings under the Act would not arise and a determination of any objection on behalf of a tenure-holder upon whom no notice under Section 10 (2) has been served would be unnecessary and futile.
26. It may be that subsequent to the acquisition of what is determined to be the surplus land of a tenure-holder somebody puts forward a claim to a land included in his ceiling area and succeeds in the claim, but this situation cannot be altogether avoided. Even if a person upon whom no notice has been served under Section 10 (2) is held entitled to file an objection under Section 10 (2), it is not obligatory for him to do so, and nothing in the Act can preclude him from subsequently claiming any portion of the area shown as ceiling area of a tenure-holder.
27. What has next to be seen is whether a person who has not been served with a notice under Section 10 (2) may have the order passed under Section 11 (1) set aside and file an objection under Section 11 (2). The objection contemplated by Section 11 (2) is obviously an objection subsequent to the determination of the surplus land of a tenure-holder under Section 11 (1) and it entitles a tenure-holder aggrieved by the order under Section 11 (1) to file such objection. Determination of a land as surplus does not in itself amount to its acquisition but it cannot be doubted that it gives the tenure-holder, who claims to hold the land but was not served with a notice under Section 10 (2), a cause to be aggrieved; and if that is so there appears to be no valid reason why the benefit of Section 11 (2) may not be available to him and why Section 11 (2) should be regarded as limited to those tenure-holders only who have been served with a notice under Section 10 (2).
It is true that the words 'passed in his absence and on sufficient cause being shown for his absence' occurring in Section 11 (2) will normally be of relevance only in the case of a tenure-holder who has received notice under Section 10 (2), but cases are easily conceivable in which they will materially affect even a tenure-holder who has not received such a notice. Supposing that the Prescribed Authority, acting under Order 1, Rule 10 (2) of the Code of Civil Procedure, has made a person upon whom no notice has been served under Section 10 (2), a party but such person has not put in appearance at the stage of the enquiry under Section 10 (2). If such a person feels aggrieved by a determination made under Section 11 (1) he has to show sufficient cause for his absence before the order passed under Section 11 (1) can be set aside and he can be allowed to file an objection. Again, if a person, upon whom no notice under Section 10 (2) has been served but who has been made a party under Order 1, Rule 10 (2) of the Civil P. C., has actually been heard in the enquiry on the objection under Section 10 (2) of the tenure-holder upon whom notice has been served, it would not be open to him to make any further objection and have the order under Section 11 (1) set aside, because the order has not been passed 'in his absence'. The words 'passed in his absence and on sufficient cause being shown for his absence' will, therefore, have meaning and effect in relation also to a tenure-holder who has not been served with a notice under Section 10 (2) and they will prevent even such a tenure-holder from claiming the benefit of Section 11 (2) if he was made a party upon an objection under Section 10 (2) by a tenure-holder who has been served with a notice.
In my opinion, the words 'a tenure-holder aggrieved by such order' embrace even those tenure-holders who have not been served with a notice under Section 10 (2) and their scope is in no manner curtailed by the words 'passed in his absence and on sufficient cause being shown for his absence'. A tenure-holder who has not been served with a notice and has also not been made a party would be treated as having been absent and the fact that he was not a party would itself sufficiently account for his absence. Section 11 (2) should not, to my mind, be interpreted as withholding its benefit from a person who has committed no default at all while extending it to a person who has committed a default but furnishes sufficient cause for it.
28. A question may be raised whether the Act intends to provide two opportunities of filing an objection of the same kind to a tenure-holder upon whom no notice under Section 10 (2) has been served, one under Section 11 (2) against the determination made under Section 11 (1) and the other under Section 14 (3). The two opportunities are, however, not identical in their scope and their legal incidents. It will be seen that although only a person aggrieved by the determination of the surplus land made under Section 11 (1) can file an objection under Section 11 (2) the scope of the objection that he may file upon the order of determination being set aside is not limited by Section 11 (2) to the land determined as surplus land. The determination having already been set aside, only the statement prepared by the Prescribed Authority under Section 10 (2) is then intact and it is against that statement that the objection has necessarily to be directed as the words of Section 11 (2) clearly show. The objection under Section 11 (2) may, therefore, be in respect of any land mentioned in the statement prepared by the Prescribed Authority under Section 10 (1). But, unlike the objection under Section 11 (2), the objection under Section 14 (3) has to be confined to the surplus land in respect of which notification under Section 14 (1) has taken place.
The scope of the objection under Section 14 (3) is, therefore, narrow. Moreover, the failure to make an objection under Section 14 (3) results in extinction of title, but no such consequence is attached to the failure on the part of a person, upon whom no notice has been served under Section 10 (2), to have the order under Section 11 (1) set aside and to make an objection under Section 11 (2). If a tenure-holder upon whom no notice under Section 10 (2) has been served files an objection after getting the order under Section 11 (1) set aside and that objection is decided under Section 12, the decision should certainly be final subject to the appeal provided by Section 13. But, if no such objection is filed and decided, such title as he may have to any land remains wholly unaffected, subject of course to what may follow as a result of Section 14. For an analogy I may refer to Section 11 of the U. P. Encumbered Estates Act, 1934, which provided for the determination of a claim to the property mentioned in Sub-section (1) of that section. If the claim was made within the time allowed for it and determined, the determination was to operate as a decree of the Civil Court but where no claim was filed and there was, consequently, no determination, the title of the claimant in respect of the said property was not affected. An objection under Section 11 (2) of the Act filed by a tenure-holder, upon whom no notice under Section 10 (2) has been served, therefore, differs from, an objection under Section 14 (3) in some important respects.
29. On the interpretation which I give to Section 11 (2), it serves two important purposes. It enables a tenure-holder upon whom no notice under Section 10 (2) has been served to have his claim to any land shown in the statement prepared by the Prescribed Authority decided in a cheap and expeditious manner without recourse to a suit; and, what is more important for the purpose of the Act, it also lessens, to some extent, the possibility of the danger that a certain land may be treated as the ceiling area of a landholder for determining his surplus land and the ceiling area may later be lost or reduced on account of the claim of another person. It is true that such a claim under Section 11 (2) may not at all be made and, therefore, the danger referred to above is not altogether removed but, as I have said it is certainly lessened.
30. The period of time provided for having the order under Section 11 (1) set aside and for filing an objection under Section 11 (2) also does not indicate that Section 11 (2) deals only with a person who is bound to file an objection if he wishes to safeguard his right or interest in any land. It will be noticed that Section 11 (2) of the Encumbered Estates Act also required a claim to be made within three months of the publication of the notice under Section 11 (1) of that Act. A period of time for having the order passed under Section 11 (1) of the Act set aside and for filing an objection under Section 11 (2) had, in any case, to be fixed if the scheme of the Act was to be carried out and the fixation of that period does not at all lead to the inference that in Section 11 (2) the expression as tenure-holder' signifies only a tenure-holder upon whom notice has been served under Section 10 (2).
31. I must here again refer to the power of the Prescribed Authority under Order 1. Rule 10 (2) of the Civil P. C. The Prescribed Authority may make a person upon whom no such notice has been served a party also in a proceeding started upon an objection under Section 11 (2) by a person upon whom such notice has been, served, and if such a person is made a party he has evidently to be heard in support of any claim that he may put forward in respect of the land shown in the statement prepared by the Prescribed Authority. A determination of the question whether a person other than the tenure-holder upon whom notice under Section 10 (2) has been served is the holder of any land shown in the aforesaid statement has, therefore, in a certain situation to be made under Section 11 (2) as well in the presence of such other person. In these circumstances there seems to be no justification for qualifying the words 'a tenure-holder' by words which do not find a place in the statute.
32. What the Prescribed Authority Es required to do under Section 12 (1) has also to be seen. The section says that the Prescribed Authority has to decide the objection and to determine the surplus land. An objection under Section 10 (2) or Section 11 (2) by the tenure-holder upon whom notice under Section 10 (2) has been served may relate to any land shown in the statement prepared by the Prescribed Authority and that objection has to be decided under Section 12. Similarly, therefore, the objection of a tenure-holder upon whom no notice has been served under Section 10 (2) has, in my opinion, to be decided if he is made a party by the Prescribed Authority or files an objection in circumstances which entitled him to do so.
Section 12 does not empower and require the Prescribed Authority merely to determine the surplus land but also to decide the objections. Determination of the surplus land is certainly the ultimate thing to be done, but that determination is inseparably connected with and entirely dependent on the fixation of the ceiling area. The entire land held by a tenure-holder is naturally involved in the process of determination of his surplus land. Objection to any land being treated as his in the statement prepared by the Prescribed Authority under Section 10 has, therefore, to be decided if surplus land is to be determined. Plainly, Section 12 (1) requires both decision of objections and determination of the surplus land. Thus, the power conferred upon the Prescribed Authority under Section 12 (1) is wide enough to cover the power to decide an objection of a tenure-holder, upon whom no notice under Section 10 (2) has been served, with respect to any land shown in the statement prepared by the Prescribed Authority under Section 10 (1).
33. I must say that on no interpretation of the provisions of the Act can some anomalies and difficulties be avoided. A tenure-holder may, as a result of a subsequent litigation, lose part or whole of his ceiling area after the rest of his land has been finally acquired under the Act as surplus land what remedy, if any, is open to such a tenure-holder? Can he, in spite of Section 14 (2) of the Act, have the determination of his surplus land reopened under Section 151 of the Civil P. C. and claim back what has been acquired by the State or has he then to content himself with the compensation that he has received? I do not find the questions easy to answer.
But the answer to the aforesaid questions cannot, to my mind, have a bearing on the answer to the question before this Bench. On no view of the relevant provisions of the Act is a person, upon whom a notice under Section 10 (2) has not been served and who has not been made a party under Order 1. Rule 10 (2) of the Civil P. C., bound to make an objection to the statement prepared by the Prescribed Authority under Section 10 (1) and nothing that happens prior to the stage of Section 14 can have any effect on his right in any land shown in the aforesaid statement. If he files no objection under Section 14 (3) his rights in the land determined as surplus land are certainly extinguished, but his claim to any land shown as the ceiling land of the tenure-holder whose surplus land has been acquired remains unaffected by the proceedings under the Act. Consequently, the title of a person to the area shown as his ceiling area cannot under the provisions of the Act, become secure against the claim of such a person in all circumstances. The answer to the question before this Bench is, therefore, not dependent upon or necessarily connected with the answer to the question as to what remedy a tenure-holder deprived of part or whole of his ceiling area subsequent to the acquisition of the rest of his land as surplus land has. I, therefore, express no opinion on the latter question.
34. It would be seen from the above discussion that my conclusions differ in some respects both from the observations made in 1965 All LJ 756 and in Kesar Sugar Works v. State, 1967 All LJ 551 cases in which divergent views have been expressed. These two are the only reported decisions of this Court in which the question before this Bench came up for consideration. In the Full Bench case of 1968 All LJ 292 = (AIR 1968 All 305) (FB) also there are doubtless some observations which may appear to have a bearing on the question before us, but a close examination of that case would show that it involved a totally different question, and the observations have to be read in the context of that question. The facts of the case were that a tenure-holder was possessed of 2510.96 acres of land. He had made certain transfers in respect of some land after the 20th of August, 1959. Upon receipt of a notice in CLH form 4 the tenure-holder filed an objection stating that he wanted to retain plots situate in a particular village in his ceiling area. The choice of the tenure-holder was, however, not accepted by the Prescribed Authority and he was allotted in his ceiling area the land which he had transferred after the 20th of August, 1959. The order of the Prescribed Authority was confirmed by the District Judge in appeal. The tenure-holder thereupon filed a writ petition, which was dismissed by a learned single Judge. That led to a Special Appeal which ultimately came up for decision before that Full Bench.
The Bench was, therefore, considering the question whether the Prescribed Authority could refuse to accept the choice of the tenure-holder, and it held that he could not. The Bench found that 'What the Prescribed Authority had done was to accept the transfers, to recognise their existence, and to protect the interests of the transferees', though he had to treat the transfers 'as a nullity'. While dealing with the question whether the Prescribed Authority could disregard the choice of the tenure-holder in the interest of the transferees, the Bench observed:
'From the scheme of the Act it is clear that there are only two parties before the Prescribed Authority, i.e. the tenure-holder and the State. The transferees are not parties before it and the Prescribed Authority has no jurisdiction to take into consideration their rights or to determine them.'
What the Bench decided was that a determination of rights or an adjustment of equities between the tenure-holder and the transferees was beyond the power of the Prescribed Authority when the tenure-holder had indicated his choice with regard to the ceiling area. The observations made in that case have, therefore, no application to the questions before this Bench.
35. The fact that while Section 14 (3) enables even a lessee from a tenure-holder to indicate his interest in the land mentioned therein Section 11 (2) enables only a tenure-holder to make an objection does not in any manner suggest that the expression 'tenure-holder' should be given a restricted meaning in Section 11 (2). The reason for the distinction made in the aforesaid two provisions is not far to seek. The person who is really affected by the acquisition of surplus land is the tenure-holder thereof and the Act has not, therefore, provided for an objection under Section 11 (2) by anybody else except the tenure-holder. A lessee from the tenure-holder is, however, entitled under Section 17 (2) to a portion of the compensation payable in respect of the land acquired as surplus land and Section 14 (3), therefore, enables him to indicate the extent of the interest claimed by him so that the same may be determined for the purpose of apportioning compensation under Section 17 (2).
36. Determination of the claim of a tenure-holder upon whom no notice has been served under Section 10 (2) is not foreign to the scheme of the Act. Section 14 specifically provides for such a determination in respect of the area mentioned in that provision and excludes the possibility of its determination outside the Act. In proceedings under Sections 10 (2) and 11 (2) the Prescribed Authority has power under Order 1, Rule 10 (2) of the Code of Civil Procedure read with Section 37 of the Act, in the situation mentioned earlier, to add as a party a tenure-holder upon whom no notice has been served under Section 10 (2), and if the Prescribed Authority does exercise the power the tenure-holder added as a party has obviously to be heard and his claim or objection has to be determined. This is to be borne in mind in the interpretation of the provisions of Sections 10, 11 and 12 and in finding out their scope. Effect has to be given to the words used in the said provisions both as to what they include and what they exclude and no pre-supposition or consideration of result can prevail over the plain meaning of the language employed in the provisions; and if the words are capable of alternative constructions, a construction which will remove or reduce chances of hardship, inconvenience or anomaly and may avoid multiplicity of litigation has to be accepted in preference to the alternative which may have a contrary tendency.
As a result of an examination of the relevant provisions of the Act in the light of the above principles my answer to the question before this Bench is as follows:--
'The fact that a tenure-holder is not recorded as such in the revenue records is not relevant for determining whether he is entitled to file an objection to the statement prepared under Section 10 (1) of the Act and issued to another person under Section 10 (2) of the Act, and the, above fact does not disentitle him to file an objection if he is otherwise entitled to do so. A tenure-holder to whom a statement has not been issued under Section 10 (2) of the Act is not entitled to file an objection, under that provision i.e. Section 10 (2) of the Act, to the statement prepared under Section 10 (1) of the Act and issued to another person under Section 10 (2) of the Act. Section 11 (1) of the Act does not provide for the filing of any objection and no objection can, therefore, be filed under that provision. Under Section 11 (2) of the Act, however, a tenure-holder to whom a statement under Section 10 (2) of the Act has not been issued is entitled to file an objection to the statement prepared under Section 10 (1) of the Act and issued to another person under Section 10 (2) of the Act, subject to the restrictions imposed by that provision, i.e. Section 11 (2) of the Act. If, upon an objection made by a tenure-holder to whom a statement under Section 10 (2) of the Act has been issued, a tenure-holder to whom no such statement has been issued is added as a party by the Prescribed Authority under Order 1, Rule 10 (2) of the Civil P. C., read with Section 37 of the Act the latter tenure-holder can prefer a claim or objection. Similarly if, in a proceeding under Section 11 (2) of the Act, a tenure-holder to whom a statement has not been issued under Section 10 (2) of the Act is added as a party by the Prescribed Authority such tenure-holder can prefer a claim or objection under that provision, i.e. under Section 11 (2) of the Act'.
Yashodanandan, J.
37. I respectfully agree with my learned brother Gangesnwar Prasad, J. and have nothing to add.
BY THE COURT
38. In accordance with the majority opinion our answer to the question referred to us is as follows:--
'The fact that a tenure-holder is not recorded as such in the revenue records is not relevant for determining whether he is entitled to file an objection to the statement prepared under Section 10 (1) of the Act and issued to another person under Section 10 (2) of the Act, and the above fact does not disentitle him to file an objection if he is otherwise entitled to do so. A tenure-holder to whom a statement has not been issued under Section 10 (2) of the Act is not entitled to file an objection, under that provision i.e. Section 10 (2) of the Act, to the statement prepared under Section 10 (1) of the Act and issued to another person under Section 10 (2) of the Act. Section 11 (1) of the Act does not provide for the filing of any objection and no objection can, therefore, be filed under that provision. Under Section 11 (2) of the Act, however, a tenure-holder to whom a statement under Section 10 (2) of the Act has not been issued is entitled to file an objection to the statement prepared under Section 10 (1) of the Act and issued to another person under Section 10 (2) of the Act, subject to the restrictions imposed by that provision, i.e. Section 11 (2) of the Act. If, upon an objection made by a tenure-holder to whom a statement under Section 10 (2) of the Act has been issued, a tenure-holder to whom no such statement has been issued is added as a party by the Prescribed Authority under Order 1, Rule 10 (2) of the Civil P. C., read with Section 37 of the Act, the latter tenure-holder can prefer a claim or objection. Similarly if, in a proceeding under Section 11 (2) of the Act, a tenure-holder to whom statement has not been issued under Section 10 (2) of the Act is added as a party by the Prescribed Authority such tenure-holder can prefer a claim or objection under that provision, i.e. under Section 11 (2) of the Act'.
39. The case will now go back to the learned single Judge who referred the question to a larger Bench.