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Judgment
S. R. Singh, J.—Present petition has its genesis in consolidation proceeding, which commenced in the village in question in 1956, consequent upon notification issued under Section 4 of the U.P. consolidation of Holdings Act, as it stood before its amendment by U.P. Act 33 of 1958.
A brief resume of necessary facts is that Raghubir, father of respondent No. 3, Sharda Prasad, had alienated plots Nos. 879 ( 88), 880 (090), 881/1(0910) and 910 (2170), that is to say, four plots in all, admeasuring 5 bighas, 3 biswas and 18 biswansis by means of a saledeed having been executed in favour of Kashi Prasad, father of the petitioners on 11.10.1954 A deed of reconvenyece of the plots aforestated was also executed by Kashi Prasad in favour of Raghubir.
Upon commencement of consolidation proceedings in the village, Raghubir claimed right under the deed of reconveyance and issues regarding title were referred to the Civil Judge, who remitted the matter to the Arbitrator under section 12 of the Act as it stood then. The Arbitrator gave a verdict by means of the award dated 25.2.1965 in favour of Kashi Prasad, thereby lending validity to the deed of reconveyance. The Civil Judge approbated the award and remitted the case to the Consolidation Officer, vide order dated 17.7.1965. The appeal preferred against the said order, climaxed into its dismissal by the District Judge, vide order dated 21.4.1969, which order came to be impugned i n a revision before this Court being Civil Revision No. 1326 of 1969. However, the said revision ended up in being dismissed and the orders aforesaid were maintained by this Court, vide order dated 24.3.1976. After an interregnum of three years, Sharda Prasad, son of Raghubir, respondent No.3, resurfaced with an application under Section 52 (2) of the U.P. Consolidation of Holdings Act, read with 109A of the Rules made under the Act, seeking implementation of the award dated 2521965, as countenanced in affirmance by the Civil Judge, the District Judge and the High Court vide orders dated 1771965,2141969 and 2431976 respectively as stated supra. Thereafter, the matter sank into lingering limbo and in the meantime, the village was notified for consolidation operation vide notification under Section 4A (2) dated 10.7.1982. However, the Consolidation Officer allowed the objection dated 5.2.1979 and directed by means of the order dated 26.6.1984, that l/3rd share out of Sirdari portion of Khata No. 80 corresponding to new plot No. 351 be given to respondent no. 3. The petitioner went up to appeal before the Settlement Officer, Consolidation, who allowed the appeal vide order dated 12.12.84 and dismissed the application as barred by time prescribed by Section 26A of the Act as it stood before its deletion vide U.P. Act No. 33 of 1958. On the matter being taken to Dy. Director of Consolidation, he set aside the order aforesaid and remitted the case to the Consolidation officer, vide order dated 3.4.1986 with a direction that the application moved under Section 52 (2) of the Act, read with Rule 109A of the Rules, be treated as objection under Section 9 and action for Amaldaramad of the orders aforestated be taken accordingly. It is this order dated 3.4.1986 of the Deputy Director of Consolidation, which is the subject matter of impugnment in this writ petition.
The only question that falls for determination in the instant case is, whether the proceeding for implementation of the award, having its origin in the application dated 521979, was barred by Section 26A (2) of the U.P. Consolidation of Holding Act as it stood before its deletion by U. P. Act 33 of 1958. Sri Yatindra Singh vehemently and dextrously canvassed that Section 26A (2) would operate to govern the proceeding notwithstanding its deletion by U.P. Act 33 of 1958, whereas Sri U.R. Misra, learned Counsel appearing for the respondent No.3 countered the contention by submitting that the Dy. Director of Consolidation rightly held that the proceedings for implementation of the award would be governed by Section 52 (2) as inserted by U.P. Act VIII of 1963 much before the date the application dated 5.2.1979 was moved, read with Rule 109A of the Rules made under the Act.
Section 26A as inserted in the Principal Act by U.P. Consolidation of Holdings (Amendment) Act, 1957 being germane to the controversy involved in the case, is extracted below for ready reference,
�26A. Provisional possession (I) Notwithstanding anything contained in Sections 27 and 30, the maps and records and the tenure holder''s right to land in respect of which the statement of proposals has not become final under subsection (2) of Section 23 shall remain provisional.
(2) Within 30 days of the decision by the Arbitrator of a reference pending on the date of confirmation, any party concerned may apply to the Consolidation Officer or, if the notification under Section 52 has been issued to the Tahsildar, to set aside the provisional entries in the statement of proposals and to pass such orders as may be necessary because of the decision of arbitration under subsection (2) of Section 22 for finalising what had remained provisional.
(3) Any person aggrieved by the order of the Consolidation Officer or the Tahsildar may, within 15 days of the order, file an appeal before the Settlement Officer (Consolidation) or the Assistant Collector hi charge of the SubDivision, as the case may be. The order made under this subsection shall be final.
(4) The Consolidation Officer or the Tahsildar as the case may be shall cause delivery of actual possession of reallocated chaks to be made to such party as the final order under subsection (2) or (3) may require and for so doing shall have all the powers including powers as regards contempt, resistance and the like as are exercisable by a Civil Court in execution of a decree for delivering possession of immovable property.
The aforesaid provision was deleted by U.P. Act 33 of 1958 which came into force on 27.11.1958. Section 49 whereof as substituted and deemed always to have been substituted by U.P. Act 13 of 1965, reads as below :
�49. Transit provisionWhere consolidation operations are pending in any unit at the commencement of this Act.
(i) if the operations are at the stage of examination of the land records under section 7 of the Principal Act, then the Asstt. Consolidation Officer shall complete the preparation of the statement mentioned in that section as if this Act had not come into force and such revision and preparation of statement shall thereupon be deemed to be the revision and preparation of statement mentioned in Sections 7 and 8 of the amended Act, and thereafter all further proceedings shall be conducted and concluded in accordance with the provisions of the amended Act, beginning with the proceedings under Section 9 thereof.
(ii) if the operations are at the stage of proceedings under Section 8 of the Principal Act or at any later stage then all further proceedings shall be continued and concluded in accordance with the Principal Act as if this Act had not come into force.
Explanation. In this section �amended Act� means the Principal Act as amended by this Act.�
The Act was further amended by U.P. Act 8 of 1963 and it was by Section 43 (2) of the Amending Act of 1963 that subsection (2) was subjoined to Section 52 of the Act after numbering the existing section as subsection (1) and adding a proviso thereto. Sub Section (2) reads as under ;
�(2) Notwithstanding anything contained in subsection (2), any order passed by a court of competent jurisdiction in cases of writs filed under the provisions of the Constitution of India, or in cases or proceedings pending under this Act, on the date of issue of the notification under subsection, (1), shall be given effect to by such authorities as may be prescribed and the consolidation operations shall, for that purpose, be deemed to have not been closed.�
Section 47 of the U.P. Act 8 of 1963 as amended by U.P. Act 13 of 1965 reads as under :
�47. Transitory provisions. (1) In units notified under subsection (2) of Section 4 of the Principal Act, prior to the date on which this Act conies into force, hereinafter referred to as the said date, all work in regard to or connected with consolidation operations
(1) beyond the state of publication of the Statement of Proposals under Section 20 of the Principal Act, where, on or before the said date, that statement had already been published; arid
(ii) upto and inclusive of the stage of confirmation of the Statement of Principles under Section 18 of the Principal Act, where, on or before the said date, notices under Section 9 of the Principal Act had already been issued;
shall be conducted and concluded in accordance with the provisions of the Principal Act, as if the provisions of this Act excepting Section 43 had not come into force :
Provided that, as respects second appeals and revisions which lay under the provisions of the Principal Act,, as it stood prior to its amendment by this Act but had not been instituted before the said date, the Principal Act, as amended by this Act, shall apply and be deemed always to have applied as if the provisions of this Act excepting section 43 had not come into force on all material dates.
(2) All other work, to which the provisions of subsection (1) do not apply, shall be conducted and concluded in accordance with the provisions of the Principal Act as amended by this Act.
Explanation. In units where notices under section 9 of the Principal Act had not issued on or before the said date, any work done shall, for the purposes of this subsection, be deemed always to have been done under the provisions of the Principal Act as amended by the Act.
(3) Notwithstanding anything contained in subsection (1) or (2) the provisions of clause (1) of Section 49 of the Uttar Pradesh Consolidation of Holdings (Amendment) Act, 1958 (U.P. Act XXXVIII of 1958), shall continue to apply to proceedings covered by that clause.
(4) For the removal of doubts, it is hereby clarified that where any work is to be conducted or concluded under the provisions of the Principal Act, in accordance with the provisions of subsection (1) or subsection (3) it shall be, and shall always be deemed to have been lawful for the State Government to exercise all or any of the powers conferred on it under the provisions of the Principal Act as it stood prior to the amendment by this Act, or prior to its amendment by the Uttar Pradesh Consolidation of Holdings (Amendment) Act, 1958 (U.P. Act XXXVIII of 1958), as the case may be.�
Section 23 provides for confirmation of the Statement of Proposals. The section as amended by U.P. Act 16 of 1957 was as under :
�23. Confirmation of the statement of proposals. (1) The Settlement Officer (Consolidation), shall confirm the statement of proposals if no objections are filed within the tune specified in Section 20 or, where such objections are filed, after such modification or alterations as may be necessary in view of the orders passed under Section 21.
(2) The statement as confirmed shall be published and shall be final except in so far as it relates to land which is the subject matter of reference made to the Civil Judge and which have not been disposed of till then.�
Subsection (2) as amended by U.P. Act 38 of 1958 was as below :
* * *
(2) The Statement of proposals so confirmed shall be published in the unit and shall, except as otherwise provided by, or under, this Act, be final.�
The section was again amended by U.P. Act 8 of 1963 but it made no quotable material difference
Section 26A of the Act would neonlight the fact that its subsection (2) on which credence has been placed by the learned Counsel for the petitioner visualised a remedy for setting aside �the provisional entries in the statement of proposals� and prescribed a thirtyday period of limitation within which the remedy would be availed of by a tenure holder. As contemplated by subsection (1) of Section 26A, the maps and records and the tenures holder''s right to land in respect of which the statement proposal had not become final under Section 23
(2) was to "remain provisional" notwithstanding anything contained in Sections 27 and 30 of the Act. A conjoint reading of Section 23 (2) and subsections (1) and (2) of Section 26A would indicate that if a reference, either under Section 12 or under Section 22 of the Act, in respect of any land was pending decision by Arbitrator on the date of confirmation of the statement of proposals, then the statement of proposals in respect of such land were liable to be set aside on the basis of the Arbitrator''s decision in the manner indicated in subsection (2) of Section 26A by the Consolidation Officer or the Tahsildar, as the case may be, who were also empowered to pass necessary orders for "finalising what had remained provisional." Delivery of possession was required to be effected thereafter under section 26A (4). Adminittedly, Section 26A was not in the statute book on the date of award i. e. 2521965 in that, it was deleted by means of U.P. Act 33 of 1958. Sri Yatindra Singh, however, urged that irrespective of deletion 6f Section 26A, proceedings under Section 8 and the subsequent sections of the Principal Act commenced prior to and pending on the date on which U.P. Act 38 of 1958 came into force shall "be continued and concluded in accordance with the provisions of the Principal Act" as if the Amending Act of 1958 had not come into force. The learned Counsel urged that the term'' proceedings'' used in Section 49 of the said Amending Act of 1958 includes "execution proceeding" coming within the comprehension of subsection (2) of Section 26A of the Act. The learned Counsel also urged that the subsequent amendments made in the Act by U.P Act 8 of 1963, would not alter the aforesaid position inasmuch as, proceeds the submission, consolidation proceedings beyond the stage of publication of statement of proposals and upto and inclusive of the stage of confirmation of the statement of principles, would be concluded in accordance with the provisions of the Principal Act as if the provisions of U.P. Act 8 of 1963 had not come into force.
Section 26A was, in fact, a blend of substantive as well as procedural laws. The right to get provisional entries in the statement of proposals, set aside and the right to get possession on reallocation of chaks in the light of the decisions by the Arbitrator, of a reference pending on the date of confirmation of statement of proposals, including the right of appeal were substantive rights conferred by Section 26A but in so far as it prescribes period of limitation for setting aside the provisional entries in the statement of proposals, it would have all the characteristics of a procedural law. The section was deleted by U.P. Act 38 of 1958 but Section 49 of the said Amending Act clearly postulates that if the consolidation operations were at the stage of proceeding under Section 8 or at any later stage, then all further proceedings were required to be continued and concluded in accordance with the Act as it stood before its amendment by Act 38 of 1958. If, on the other hand, the consolidation operations were at the stage of examination of the land records under Section 7, on the date of enforcement of U.P. Act 38 of 1958, then "all further proceedings" could be conducted and concluded in accordance with the provisions of the Amended Act inasmuch as preparation of records under Section 7 as it then stood, would, by virtue of Section 49A, be deemed to have been in accordance with the Amended Act. It is not clear from the materials on record as to whether the consolidation operation was at the stage of Section 7 or it was at the stage of section 8 or at any later stage on the date or commencement of U.P,. Act 38 of 1958. The word ''proceeding'' used in subsection (ii) of Section 49 is no doubt a term of wide connotation, including within its ambit, proceedings in the nature of the one comprehended by Section 26A of the Act. In Babulal vs. M/s. Hazari Lal Kishori Lal, AIR 1982 SC 818, the word ''proceeding'' in section
22 of Specific Relief Act, 1963, was construed as a term ''including execution proceeding.'' According to the Black''s Dictionary, the term ''proceeding'' may refer, not only to complete remedy, but also to a mere procedural step i.e. part of a larger action or special proceeding. Accordingly having regard to the nature, ambit and scope of Section 26A I am of the view that the words �all further proceedings� occurring in Section 49 (i) of U.P. Act 38 as substituted and deemed always to have been substituted by Act 13 of 1965 includes proceedings under Section 26A. But the effect of section 49 of U.P. Act 38 of 1958 stood nullified except to the extent it is saved, by subsequent Amending Act 8 of 1963. Section 47 (ii) of the said Act makes it abundantly clear that all work in regard to or connected with consolidation operations (i) beyond the stage of publication of the Statement of Proposal under Section 20 of the Principal Act where, on or before the date of commencement of Act 8 of 1963, the statement had already been published, and (ii) upto inclusive of the stage of conformation of the statement of principles under section 18, where notices under Section 9 and had already been issued had to be conducted and concluded as if the provisions of Act 8 of 1963 excepting Section 43� had not come into force. Applicability of Section 43 of U.P. Act 8 of 1963 that is to say Section 52 (2) is excluded by virtue of Section 47 (3) only in respect of proceedings for examination of land records under Section 7 of the Act, as visualised by clause (i) of Section 49 of U.P. Act 38 of 1958 and not in respect of proceedings covered by clause (ii) thereof ''Principal Act'' within the meaning of Section 47 of U.P. Act 8 of 1963. Subsequent amendment in the Act by U.P. Act 8 of 1963. Subsequent amendment in the Act by U.P. Act 8 of 1963 would not make any difference in that Section 47 (3) of the said Act provides that ''notwithstanding anything contained in subsection (1) or (2), the provisions of clause (i) of Section 49 of the U.P. Consolidation of Holdings (Amendment) Act, 1958 the U.P. Act 38 of 1958 shall continue to apply to proceedings covered by that clause. It is thus evident that subsection (2) of Section 52 would be applicable for the purposes of enforcement of the decision rendered in arbitration proceeding as it does not stand excluded by the provisions of subsection (3) of Section 47 of U.P. Act 8 of 1963 in respect of pending proceedings covered by clause (ii) of Section 49 of the U.P. Act 38 of 1958. Section 52 (2) being procedural in nature is retrospective in the sense that it applies to future as well as past causes of action in that it is not intended to create any right but to prescribe procedure for enforcement of right.
In the conspectus of the reasons assigned aforesaid, I am loathe to interfere with the order of remand passed by the Dy. Director of Consolidation remitting the matter back to the Consolidation Officer for registering the case as one under Section 9 of the U.P. Consolidation of Holdings Act and deciding it on the basis of decision rendered in reference proceeding under the old Act.
In the result, the petition fails and is dismissed with costs on parties.