Hon'ble Ashok Bhushan,J Hon'ble A.P. Sahi,J (Delivered By Hon'ble Ashok Bhushan,J) This Bench has been constituted by order of Hon'ble The Chief Justice dated 03/8/2009 to answer the following five questions as framed by referring order dated 21/7/2009, by the learned Single Judge hearing the writ petition:
(I)Whether the law laid down by the learned single Judge in the case of Jagdeo and others Vs. Deputy Director of Consolidation, Allahabad, and others, 2006 (101) RD 216, is in conflict with the other decisions of this Court referred to herein above and as noticed by the learned single Judge himself in paragraph no.32 of the said judgment?
(II) Whether the learned single Judge merely because of having arrived at a different conclusion as against the decisions cited to the contrary, on a consideration of additional aspects, could have rendered the decision himself, instead of referring the matter to a larger Bench in view of the law laid down in the case of Rana Pratap Singh and others Vs. State of U.P. and others, 1995 ACJ 200?
(III)Whether the learned single Judge in Jagdeo's case was justified in invoking the principles of the doctrine of estoppel and acquiescence for creating an implied bar merely because a co-tenant had failed to assert his rights under The U.P. Zamindari Abolition & Land Reforms Act and was, therefore, barred from raising an objection under the Uttar Pradesh Consolidation of Holdings Act, 1953 and the rules framed thereunder?
(IV)Whether the provisions of the U.P. Consolidation of Holdings Act have an over riding effect over all other Acts for the time being in force keeping in view the provisions of Section 49 and have the exclusive jurisdiction to decide right, title and interest of claimants relating to land tenures upon a notification under Section 4 or not?
(V)Whether long standing entries which are questioned in an objection filed under the Uttar Pradesh Consolidation of Holdings Act hold only a presumptory value or they can be taken to be an absolute proof in law on the principle of estoppel, acquiescence and waiver and thereby attract an automatic bar of Section 49 of the U.P.C.H. Act."
The facts giving rise to the writ petition necessary to be noted for answering the questions referred are; The Village Dinwapur, Mazare-Danda Amauli, Pargana-Tappajar, Tehsil-Bindki, District-Fatehpur was notified by the State Government for consolidation operation under the Uttar Padesh Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act,1953). The respondent no.3, and one Banshi filed an objection under Section 9(A) (2) of Act, 1953 with regard to Khata No. 264 and 266 claiming that the land of the aforesaid Khatas is an ancestral acquisition acquired by common ancestor Bhura in which they are co-tenants to the extent of half share. The Consolidation Officer rejected the objection of the respondent no.3, against which an appeal No. 4646 of 1998, was filed before the Settlement Officer Consolidation, by the respondent no.3. The appeal of the respondent no.3 was dismissed vide judgment and order dated 26/8/2002. Both the Consolidation Officer and the Settlement Officer Consolidation took the view that the claim of the respondent no.3 is barred by Section 49 of the Act, 1953, since the claim of co-tenancy was not raised during the earlier consolidation proceedings. The respondent no.3, filed a revision before the Deputy Director of Consolidation against the judgment and order dated 26/8/2002. The Deputy Director of Consolidation, vide judgment and order dated 16/2/2006, allowed the revision and declared the respondent no.3, co-tenant to the extent of half of the share. This writ petition has been filed by the petitioners challenging the order of the Deputy Director of Consolidation dated 16/2/2006.
Learned counsel for the petitioners in support of the contentions raised had relied on the judgment of the learned Single Judge reported in Jagdeo & Anr Vs. Deputy Director of Consolidation, Allahabad & Ors, 2006 (101) RD 216, to urge that the claim of the respondent no.3, was barred by Section 49 of the Act, 1953.
The learned Single Judge while hearing the writ petition expressed his disagreement with the view expressed in Jagdeo's case (supra) and has referred the above five questions for decision by this larger Bench.
Before we proceed to answer the above five questions, it is necessary to note the relevant observations in Jagdeo's case (supra). In Jagdeo's case (supra) the claim of co-tenancy was raised by filing an objection under the Act, 1953 by the descendants of one Sheoratan, the name of the descendants of only Sheobhik, brother of Sheoratan, were recorded in Khata No. 92. The claim of co-tenancy was raised on the ground that the tenancy was a joint tenancy of both Sheobhik and Sheoratan. The Consolidation Officer had accepted the objection and directed for recording the name of the objectors as co-tenants against which an appeal was filed and allowed in part. A revision was also filed which was dismissed. The Assistant Settlement Officer Consolidation held that right from 1320 Fasli the name of Sheobhik was recorded in revenue records and the name of Sheoratan was never recorded in the revenue records, hence the claim of the descendants of Sheoratan was barred on the principle of estoppel. For 50 years, neither the petitioner nor their ancestors took any steps for getting their names recorded in the revenue records. Even at the time of Zamindari Abolition they did not raise any objections. The learned Single Judge while deciding Jagdeo's case (supra) in the above context made the following observations in para 7 relying on his earlier decision:-
"The purpose of consolidation is taken to be resurrection of dead (buried) dispute or revival of dormant ones. In fact this is not the spirit of Consolidation Act. Under Section 9(2) of the U.P.C.H. Act only disputes of recent past may be raised. Consolidation Act provides a new Forum for adjudication of disputes, but not a new opportunity for the same.
However, independently of all these principles, such exercise is to be nipped in the bud on the doctrine of public policy. It is against public policy to permit a person to seek reversal of state of affairs continuing for scores of years. A certain but some what erroneous state of affairs is better than almost correct but uncertain state of affairs. To maintain state of affairs continuing since very long which may have some elements of inaccuracy is better than to thoroughly analyse the inaccuracy after expiry of long time since inception of the said affairs and reverse the same after thorough discussion of attending circumstances at the time of start of said state of affairs."
In the aforesaid case, while considering the scope and ambit of Section 49 of the Act, 1953 following observations were made in paragraphs 14 and 15 which are quoted below:
"14. As far as the first part of the bar created by section 49 of U.P.C.H. Act is concerned, it is more or less the doctrine of res-judicata as incorporated in section 11 of CPC. As far as the second bar (could or ought bar) is concerned, it is also not an altogether new doctrine for the first time introduced by U.P. Legislature. It is merely an express provision based upon several other doctrines particularly the doctrine of estoppel. What is expressed in the second type of bar provided under section 49 of U.P.C.H. Act is already implied in the principles of estoppel etc. the underlying principle of doctrine of estoppel is that if a person has got an opportunity to assert his right but he fails to do so then he is precluded in future from asserting the right.
15. If revenue entries are continuing since long and much before Zamindari Abolition then independently of section 49 of U.P.C.H., unrecorded tenure holder is estopped from asserting his right on the basis that the revenue entries are benami in nature and at the time of acquisition of the tenancy or Zamindari his ancestor was joint with the original tenant/Zamindar."
Another notable observation which was made by the learned Single Judge was that a person who remained silent at the time of Zamindari Abolition and did not seek correction of revenue entries is subsequently estopped from seeking declaration of his rights in consolidation proceedings. Following was laid down in paragraph 18.
"18. In view of this a person who remained silent at the time of Zamindari Abolition and did not seek correction of revenue entries on the basis of joint tenancy or did not initiate legal proceedings immediately after Zamindari Abolition for declaration of his right and correction of revenue entries is subsequently estopped from seeking declaration of his right in consolidation proceedings. In fact Zamindari Abolition was much more important phenomenon in respect of agricultural lands than survey conducted before Zamindari Abolition or consolidation proceedings after Zamindari Abolition."
Considering the doctrine of estoppel the following proposition was laid down in paragraph 20 which is quoted below:
"20.The doctrine of estoppel basically deals with relinquishment or extinction of rights. Acquisition of right through estoppel is an extension of or corollary to the classical doctrine of estoppel. Accordingly, if through estoppel co-tenancy can be acquired then all the more reason to hold that through estoppel co-tenancy can be relinquished. If the name of objector or his predcessor or ancestor was never recorded in the revenue records and that position continued for several decades then even if he or his ancestor had any right of co-tenancy, the same came to an end on the basis of doctrine of estoppel."
In paragraph 24 of the judgment the learned Single Judge held that the doctrine of waiver and estoppel precludes an unrecorded person from asserting before Consolidation Courts that long standing revenue entries be reversed. Following was laid down in paragraph 24.
"24.Accordingly, the doctrine of waiver and estoppel which is also the basis of second type of bar under section 49 U.P.C.H. Act precludes an unrecorded person from asserting before Consolidation Courts that long standing revenue entries which are continuing since much before Zamindari Abolition shall be reversed and he must be declared to be Joint Bhumidhar/Sirdar on the ground that the original tenant and ancestor of claimant were joint and the acquisition was by both of them even though the name of his ancestor was not recorded in the revenue records."
In paragraph 29, it was held that apart from the principle of estoppel, bar of such types of claim, after the enforcement of U.P.Z.A. and L.R. Act shall come into play.
In view of the aforesaid background, we now proceed to consider the questions referred to above.
We have heard Shri Ramesh Rai, learned counsel for the petitioners, Shri V.K. Singh, learned Additional Advocate General assisted by Shri V.K. Chandel for State respondents and Shri V.B. Srivastava appearing for the respondent no.3.
Questions 1 and 2 The learned Single Judge while deciding Jagdeo's case (supra) himself noted in paragraph 32, that some authorities have taken a view contrary to the view which has been taken by the learned Single Judge and no authority has considered the various aspects dealt with by the learned Single Judge. Thus, according to the learned Single Judge himself the view which has been taken in the aforesaid case was contrary to some authorities which presupposes that there were judgments taking a contrary view.
The Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr, 2005 (2) SCC 673, laid down that a bench of a lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. A co-ordinate Bench cannot hold a view contrary to a view already taken, and the course open is to make a reference. Following was laid down in paragraph 12.
"12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.
(2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co- equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co- equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh & Ors. and Hansoli Devi & Ors.(supra)."
A Full Bench of this Court in Rana Pratap Singh Vs. State of U.P. & Ors, 1995 All CJ, 200, has laid down following in paragraphs 16 and 17 which is quoted below:
"16. On this aspect another relevant judicial pronouncement comes in Ambika Prasad v. State of U.P., AIR 1980 SC 1762. there, in the context of the U.P. Imposition of Ceilings of Land Holdings Act, 1961, while dealing with the question as to when reconsideration of a judicial precedent is permissible, Krishna Iyer, J. So aptly put it "Every new discovery of argumentative novelty cannot under or compel reconsideration of a binding precedent."
17. Further, It is wise to remember that fatal flaws silenced by earlier rulings cannot serve after death because a decision does not lose its authority 'merely because it was badly argued, inadequately considered and fallaciously reasoned' (Salmond Jurisprudence, page 215,11th Edition)."
In view of the above pronouncements, it is clear that having noticed the conflicting views, the learned Single Judge ought to have made a reference having found himself not to be in agreement with some earlier judgment of this Court. The observations of the learned Single Judge in paragraph 32 of Jagdeo's case (supra) that the earlier cases have not considered the various aspects dealt with by the learned Single Judge therein, makes no difference, since the learned Single Judge has not held that the earlier decisions were not binding precedent being per incurium.
The Apex Court in Ambika Prasad Vs. State of U.P. & Ors, AIR 1980 SC 1762, has laid down that every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent.
In view of the foregoing discussions, it is held that the law laid down by the learned Single Judge in Jagdeo's case (supra) was in conflict with other earlier judgments as noticed by the learned Single Judge in paragraph 32, and merely because the learned Single Judge had arrived at a different conclusion was not sufficient for taking a divergent view. In such circumstances the learned Single Judge ought to have made a reference to be considered by a larger Bench as laid down by the Full Bench in Rana Pratap Singh's case (supra).
The above questions being inter related are being take up together.
The principle of estoppel and acquiescence which has been relied on by the learned Single Judge in Jagdeo's case (supra) for construing an implied bar in raising an objection of a co-tenancy right needs to be considered first.
Estoppel is defined in Section 115 of the Evidence Act, 1872 which is as follows:
"115.Estoppel.-When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
A party to a proceeding is said to be estopped where he is not allowed to say that a certain statement of fact is untrue, whether in reality it is true or not. Estoppel can also be defined as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. Estoppel is often described as a rule of evidence, but the whole concept is more correctly viewed as a substantive rule of law.
Mercantile Bank of India Vs. Central Bank of India Ltd, AIR 1938 Privy Council 52, had occasion to consider the principle of estoppel by conduct, neglect or representations. Following was laid down by the Privy Council at page 55:-
"The estoppel is relied on as giving to the appellants the substantive right of claiming a valid pledge of the goods, taking priority over the pledge to the respondents, since though estoppel has been described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. Of the many forms which estoppel may take, it is here only necessary to refer to that type of estoppel which enables a party as against another party to claim a right of property which in fact he does not possess. Such estoppel is described as estoppel by negligence or by conduct or by representation or by a holding out of ostensible authority."
Before the doctrine of estoppel can be invoked there must be:
1)Representation by a person to another,
2)The other should have acted upon the said representation,
3) Such action should have been detrimental to the interest of the person to whom the representation is made.
The above three conditions must co-exist for successfully pressing the plea of estoppel. The onus of establishing facts giving rise to estoppel is upon the person who pleads it.
The Apex Court in B.L. Sreedhar & Ors. Vs. K.M. Munireddy, (Dead) & Ors, AIR 2003, SC 578, had elaborately considered the doctrine of estoppel. The apex Court in the said judgment has laid down that though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped.
Following was laid down in paragraphs 22,25,26 and 27.
"22. "The essential factors giving rise to an estoppel are, I think-
"(a) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation was made.
"(b) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation was made.
"(c) Detriment to such person as a consequence of the act or omission where silence cannot amount to a representation, but, where there is a duty to disclose, deliberate silence may become significant and amount to a representation. The existence of a duty on the part of a customer of a bank to disclose to the bank his knowledge of such a forgery as the one in question was rightly admitted." (Per Lord Tomlin, Greenwood v. Martins Bank (1933) A.C.51.) See also Thompson v. Palmer, 49 C.L.R. 547; Grundt v. Great Boulder, 59 C.I.R.675; Central Newbury Car Auctions v. Unity Finance (1957)1 Q.B.371SD.MN
25.Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel, which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority.
26.Estoppel, then, may itself be the foundation of a right as against the person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. It would be useful to refer in this connection to the case of Depuru Veeraraghava Reddi v. Depuru Kamalamma, (AIR 1951 Madras 403) where Vishwanatha Sastri, J., observed:
"An estoppel though a branch of the law of evidence is also capable of being viewed as a substantive rule of law in so far as it helps to create or defeat rights which would not exist and be taken away but for that doctrine."
27.Of course, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it."
In the context of Agra Tenancy Act, 1926, and U.P. Tenancy Act, 1939, whether the principle of estoppel in co-tenancy can be created, there are several decisions of this Court.
The judgment in Dudh Nath Kori & Anr. Vs Smt. Dhamrajja & Anr, 1964 RD, 324, this Court had an occasion to consider whether a person can become co-tenant by estoppel. Following was laid down in the aforesaid judgment.
"The next question to be considered is whether a person can become a co-tenant by estoppel. It is sometime thought that an estoppel is only a rule of procedure precluding a party from asserting or denying the existence of certain state of facts and it cannot form the basis of any substantive right. This does not, however, represent the full scope of the principle of estoppel, as has been clearly laid down by their lordships of the Privy Council in Mercantile Bank of India Vs. Central Bank of India (1):-
"Though estoppel is described as a mere rule of evidence, it may hve the effect of creating substantive rights as against the person estopped. In estoppel, which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority."
Estoppel, then, may itself to be the foundation of a right as against person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. It appears to me that where rights are involved estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. I may refer in this connection to the case of Depuru Kamalamma and another v. Depuru Kamalamma and another (2) where Vishwanatha Sastri, J. observed:-
"An estoppel though a branch of the law of evidence is also capable of being viewed as a substantive rule of law in so far as it helps to create or defeat rights which would not exist and be taken away but for that doctrine."
Of course an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may, be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it. I may here mention that in the cases reported in 1949 R.D. 218 and 1942 A.W.R. (B.R.) 276 it was held by the Board of Revenue that co-tenancy could arise by estoppel. If, as I have held, Section 23 of Act III of 1926 and Section 33 of Act XVII of 1939 did not exhaustively lay down the modes in which a person could have become a co-tenant the acquisition of co-tenancy rights by estoppel was not opposed to the provisions of any statute. the requisite conditions for the operation of the doctrine of estoppel having been found to be present in the instant case by the courts below and it being not challenged that the facts and circumstances of the case did attract the doctrine of estoppel, it must be held that as against the plaintiffs Dubar acquired the rights of a co-tenant."
There are several other judgments in which this Court held that acquisition of co-tenancy rights is permissible by estoppel namely; Bhagan Ram & Ors. Vs. State of U.P. & Ors, 1967 RD 396; Kalawati Vs. Consolidation Officer, Agra & Ors, 1968,RD, 45; Gaya Singh Vs. Deputy Director of Consolidation of Etah & Ors, 1976 (2) RD 142; Mewa Ram & Ors Vs. Shankar & Ors,1970 ALJ 1019 and Babu Singh & Anr. Vs. Deputy Director of Consolidation, 1976 (2) ALR 203.
This Court in a Division Bench judgment reported in Budhlal & Anr. Vs. Deputy Director of Consolidation, 1982 RD 324, considered the issue of right acquired by way of estoppel under the Act, 1950. It was held that a person could not become co-tenant by co-option, acquiescence or estoppel under the Act, 1950 insofar as Sirdari rights are concerned.
In view of the foregoing discussion, it is thus clear that although estoppel is a rule of evidence, it may have the effect of creating substantive rights or defeating substantive rights. The applicability of the principle of estoppel may have difference where the rights claimed are right related to the period before abolition of zamindari and after abolition of zamindari and further with regard to the nature of tenure.
The question which is to be considered is as to whether or not estoppel and acquiescence can create an implied bar in filing an objection by a person claiming co-tenancy right under the Act, 1953 and as to whether the person who has failed to assert his rights under the Act, 1950 is barred from filing an objection.
The respective scheme of the Act, 1950 and the Act, 1953 needs to be noticed. The Act, 1950 was enacted to provide for the abolition of the Zamindari System which involves intermediaries between the tiller of the soil and the State in Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to land tenure.
The Act, 1953, was enacted with the object of ensuring compactness of holdings and also to provide a forum for settlement of disputes of all nature including rules in relation of land, mistakes in the revenue records and shares of tenure holders etc. Section 4 of the Act, 1953, empowers the State Government to issue declaration, notification notifying a district or part thereof for consolidation operations. Section 5 provides for effect of notification issued under Section 4(2) of the Act. Section 5(2) of the Act, 1953, provides as follows:
[5.Effect of [notification under Section 4(2)].-
[(2) Upon the said publication of the notification under sub-section (2) of Section 4, the following further consequences shall ensue in the area which the notification relates, namely-
(a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated:
Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard:
Provided further that on the issue of a notification under sub-section (1) of Section 6 in respect of the said area of part thereof, every such order in relation to the land lying in such area or part as the case may be, shall stand vacated;
(b) such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder.]"
Section 5(2) of the Act clearly contemplates all proceedings for the correction of records and every suit and all proceedings in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, shall stand abated. However, 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.
Section 9(2) and 9A(1) contemplates of filing an objection and disposal of cases relating to claim. Section 9(2), 9A(1) and 9A(3) are quoted below:
"9. Issue of extracts from records and statements and publication of records mentioned in Sections 8 and 8-A and the issue of notices for inviting objections.- (1)...............................
9(2) Any person to whom a notice under sub-section (1) has been sent, or any other person interested may, within 21 days of the receipt of notice, or of the publication under sub-section (1), as the case may be, file, before the Assistant Consolidation officer, objections in respect thereof disputing the correctness or nature of the entries in the records or in the extracts furnished therefrom, or in the Statement of Principles, or the need for partition.
9-A(1). Disposal of Cases relating to claims to land and partition of joint holdings.(1) The Assistant Consolidation Officer shall-
(i) where objections in respect of claims to land or partition of joint holdings are filed, after hearing the parties concerned, and
(ii) where no objections are filed after making such enquiry as he may deem necessary, settle the disputes, correct the mistakes and effect partition as far as may be by conciliation between the parties appearing before him and pass orders on the basis of such conciliation:
[Provided that where the Assistant Consolidation Officer, after making such enquiry as he may deem necessary, is satisfied that a case of succession is undisputed, he shall dispose of the case on the basis of such enquiry.] (3) The Assistant Consolidation Officer, while acting under sub-section (1) and the Consolidation Officer, while acting under sub-section (2), shall be deemed to be a Court of competent jurisdiction, anything to the contrary contained in any other law for the time being in force notwithstanding."
The Act, 1953 is a special Act. The scheme as delineated by Section 5 and 9 clearly contemplates all disputes pertaining to rights and interest in the land were to be adjudicated by consolidation authorities and pending dispute before other courts stands abated to the consolidation courts. The Act, 1953 thus provides a forum and opportunity for adjudication of claim relating to land. The scheme of the Act, 1953, does not indicate that it contemplate any express or implied bar with regard to filing of an objection of any kind. When the provision of the Act, 1953 specifically provides filing of objections by any interested person reading any implied bar on the principle of estoppel and acquiescence to an objection to be filed by a person whose name is not recorded cannot be accepted.
The Apex Court in the case of Sita Ram Vs. Chhota Bhondey, 1990 RD 439, by noticing Clause (b) of sub-section 2 of Section 5, laid down that such abatement shall be without prejudice to the rights of the persons affected to agitate the right of interest in dispute in the said suit or proceedings before the appropriate consolidation authorities.
This Court in Brij Bahadur Lal Vs. Deputy Director of Consolidation,U.P. & Ors, 1968 RD 187, held that the Act, 1950 does not prevail over the Act, 1953. In the said case following was laid down.
" The Consolidation of Holdings Act was passed in 1953, whereas the Zamindari Abolition was enacted in 1950. The former would prevail over the latter. Former would prevail over the latter. Further, the Consolidation of Holdings Act provides for adjudication of rights in respect of the land covered by the Notification under Section4, whereas the Zamindari Abolition Act provides for adjudication of rights in respect of the agricultural land in general. The Consolidation of Holdings Act is a special Act, comparatively speaking. It is settled that a general law, even though later, does not abrogate that earlier special one by mere implication. According to Maxwell (Interpretation of Statutes, Eleventh Edition, page 168), in such cases, the general provision would not apply to the particular cases dealt with by the special statute. It stands repealed pro tanto."
The view taken by the learned Single Judge in Jagdeo's case (supra) that a person who has not raised any objection after the enforcement of the Act, 1950 for correction of his revenue records is precluded from filing objection on the principle of estoppel under the Act, 1953 is clearly unsustainable when the Act, 1953 provides a forum for raising a claim. Thus, for filing an objection by any interested person under the Act, 1953, no kind of express or implied bar can be read against a person who had earlier not taken proceedings for correction of revenue records after enforcement of the Act, 1950.
In Jagdeo's case (supra) the learned Single Judge has relied on Section 49 of the Act, 1953 for barring objection by a person claiming co-tenancy right by principle of waiver and estoppel and has held that waiver and estoppel is the basis of second type of bar under Section 49 of the Act, 1953.
Section 49 of the Act, 1953 provides as under:
"[49. Bar to civil jurisdiction.- Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holder in respect of land lying in an area, for which a [notification] has been issued [under sub-section (2) of Section 4] or adjudication of any other right arising out of 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 122-B of the Uttar Pradesh 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 Goan Sabha under or in accordance with the provisions of this Act.]"
As noted above, Section 5(2) of the Act, 1953 provides for abatement of all proceedings for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land laying in the area, or for declaration or adjudication of any other right in regard to which proceeding can or ought to be taken under this Act, pending before before any Court or authority whether of the first instance or of appeal, reference of revision.
A plain reading of Section 49, indicates that after the issuance of notification under sub-section (2) of Section 4 for declaration and adjudication of right of tenure-holder or adjudication of any other right, the forum is the consolidation court and no Civil or Revenue Court shall entertain any suit or proceedings with respect to rights in such land.
Section 49 of the Act, contains two prohibitions, firstly for an area which has been notified under sub-section (2) of Section 4, no Civil or Revenue Court shall entertain any suit or proceedings during currency of notification under Section 4(2) and secondly, even after consolidation proceedings are over, no civil or revenue court shall entertain any suit or proceedings in respect of rights in such land for which a proceeding could or ought to have been taken under this Act.
Section 49 of the Act, 1953 came up for consideration before this Court and the Apex Court in several cases.
The judgment of the Apex Court in Sita Ram Vs. Chhota Bhonde, 1990 RD, 439 had elaborately considered Section 49 of the Act, 53. Following was laid down by the apex Court in the aforesaid judgement.
"From a perusal of Section 49 it is evident that declaration and adjudication of rights of tenure-holders in respect land lying in an area for which a notification has been issued under Section 4(2) and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, had to be done in accordance with the provisions of the Act only and the jurisdiction of the civil or revenue courts to entertain any suit or proceeding with respect to any other matter for which a proceeding could or ought to have been taken under the Act, has been taken away. The language used in Section 49 is wide and comprehensive. Declaration and adjudication of rights of tenure-holders in respect of land lying in the area covered by the notification under Section 4(2) of the Act and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, would cover adjudication of questions as to title in respect of the said lands. This view also finds support from the other provisions of the Act and the amendments that have been introduced therein."
The bar under Section 49, does not come into play in context of consolidation proceedings itself. Section 49, cannot be read as containing any bar with regard to raising an objection under Section 9 or Section 9A of the Act, 1953. For consolidation proceedings which are under way no facet of Section 49 of the Act is attracted.
In Jagdeo's case (supra) the learned Single Judge had relied on his earlier judgment in Mangroo Vs. Ram Sumer and has quoted in paragraph 7 as under:
"The purpose of consolidation is taken to be resurrection of dead (buried) dispute or revival of dormant ones. In fact this is not the spirit of Consolidation Act. Under Section 9(2) of the U.P.C.H. Act only disputes of recent past may be raised. Consolidation Act provides a new Forum for adjudication of disputes, but not a new opportunity for the same".
The aforesaid observations are not in conformity with the scheme of the Act of Section 9 and 9A of the Act,1953. In filing objection no kind of limitation can be read in filing objection under Sections 9 and 9A, nor there can be any classification on the ground of disputes of recent past or dispute of remote past. When an objection can by filed by any interested person, objection can be raised on any conceivable or valid ground and to read any prohibition in the provision that objection should relate to only recent disputes is doing violence to the express provision of the Act.
The learned Single Judge in Jagdeo's case (supra) in paragraphs 15,18 and 19 further has observed that a person who remained silent at the time of Zamindari Abolitioin and did not seek correction of revenue entries on the basis of joint tenancy or did not initiate legal proceedings immediately after Zamindari Abolition for declaration of his right and correction of revenue entries is subsequently estopped from seeking declaration of his rights in consolidation proceedings. The scheme of the Act, 1953 cannot be read in the manner as held by the learned Single Judge in the aforesaid paragraphs. Although, it is true that any Bhumidhar, Sirdhar or Asami can bring a suit for declaration under Section 229B of Act, 1950, but no consequence of not filing a suit has been provided under the Act, 1950. No disability accrues to a person by not initiating proceedings under the Act, 1950. More so, when the Act, 1953, does not contain any such exclusion barring objections on the aforesaid ground, reading any such implied bar is untenable. It is useful to note the provisions of the U.P. Land Revenue Act, 1901, (hereinafter called the "Act, 1901"). Chapter 4 contains a provision for "Revision of maps and records". A record operation is contemplated under the Act, 1901, in which a dispute regarding entries are checked and corrected. The scheme of Section 54 of the Act, 1901, contemplates revision of maps and records. It further contemplates filing an objection by any interested persons and also suo motu correction of the records. There is no provision in the Act, 1950 akin to Section 54 of the Act, 1901. As observed above, the Act, 1953 being a Special Act, the provisions of the Act, 1953 had to be given a special status and the right to file an objection under the Act, 1953 cannot be inhibited or prohibited by any provisions of the Act, 1950.
The legislative History as extracted above, would also indicate that even though such rights by estoppel and acquiescence had been acknowledged under the U.P. Tenancy Act, the legislature did not include any such provision under the U.P. Zamindari Abolition & Land Reforms Act, 1950 or any other subsequent Act relating to land tenure. The omission can also be considered to a conscious departure and, therefore, for this reason also it will not be appropriate to construe that the bar under Section 49 of the 1953 Act would also include barring claims by estoppel and acquiescence that too merely on account of absence of entries.
In paragraph 7 of the judgment the learned Single Judge has placed reliance on the observations made in Mangaroo's case (supra) which is to the following effect.
"However, independently of all these principles, such exercise is to be nipped in the bud on the doctrine of public policy. It is against public policy to permit a person to seek reversal of state of affairs continuing for scores of years. A certain but some what erroneous state of affairs is better than almost correct but uncertain state of affairs. To maintain state of affairs continuing since very long which may have some elements of inaccuracy is better than to thoroughly analyse the inaccuracy after expiry of long time since inception of the said affairs and reverse the same after thorough discussion of attending circumstances at the time of start of said state of affairs."
We are unable to subscribe to the above view. No public policy can be found out which does not permit a person to seek reversal of the state of affairs continuing for scores of years, if he has a right to do so. The view of the learned Single Judge "that a certain but some what erroneous state of affairs is better than almost correct but uncertain state of affairs" can also not be approved. A person who has a right to a property which right he has neither abandoned nor relinquished can be claimed even after a lapse of considerable period, provided the claim is not barred by any law of limitation.
Law pertaining to land tenure is principally for determining rights of peasants of this country who earn their livelihood from agriculture. Most of them are not literate enough to know their rights and vigilantly assert their rights. Unless the claim of such person is barred by any law, barring their objection on the principle of estoppel and acquiescence is not in accordance with the purpose and object of that Act.
The interpretation put by the learned Single Judge in Jagdeo's case (supra) is also not supportable from the scheme as delineated by Sections 8,9 and 9A of the Act, 1953. Under Section 8 of the Act, 1953, a share of an individual tenure-holders in joint holding for the purpose of effecting partition can be ascertained.
The Assistant Consolidation Officer, under Section 9A of the Act, 1953, is entitled to settle the disputes even in cases where any objection is not filed on the basis of conciliation for eg. with regard to a plot, name of one branch of a family is recorded and the name of two other branches are not recorded. A dispute is raised at the time of partal (survey) which is noticed by the consolidation officials and if no objection is filed by the person claiming co-tenancy right, the Assistant Consolidation Officer is fully empowered under Section 9A, of the Act, 1953 to decide the dispute on the basis of conciliation between the parties in accordance with the rules.
Taking a case, where the parties agree for conciliation and by conciliation, shares are allotted and the dispute is decided according to rules, the same shall be perfectly in accordance with the scheme of the Act.
Taking a converse case, i.e. if objections are filed claiming co-tenancy rights by a branch of a family whose name is not recorded for the last say 50 years, if the interpretation put by the learned Single Judge is accepted, such objections are to be treated as barred.
Thus for the same dispute although by conciliation it can be decided, but on objection it cannot be decided would lead to anomalous results, which cannot be the intention of the legislature. Thus no such implied bar for filing objections can be read into the provisions of Section 49.
The entries in the revenue records raise only a presumption which is a rebuttable presumption. There is one more principle i.e. presumption of correctness of entries can apply to only genuine not forged or fraudulent entries. If the bar is read in filing objections against such entries it would lead to injustice.
The Apex Court in Vishwa Vijai Bharti Vs. Fakhrul Hasan & Ors, (1976) Supp SCR 519, laid down following.
"It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title."
It is relevant to note that even the records prepared in consolidation proceedings raise only a rebutabble presumption. Sections 27(1) and 27(2) of the Act, 1953 are quoted below:
"27.(1) As soon as may be, after the final Consolidation Scheme has come into force, the district Deputy Director of Consolidation shall cause to be prepared for each village, a new map, field-book and record of rights in respect of the consolidation area, on the basis of the entries in the map, as corrected under Section 7, the Khasra chakbandi, the annual register prepared under Section 10 and the allotment orders as finally made and issued in accordance with the provisions of this Act. The provisions of the Uttar Pradesh Land Revenue Act, 1901, shall, subject to such modifications and alterations as may be prescribed, be followed in the preparation of the said map and records.
(2). All entries in the record of rights prepared in accordance with the provisions of sub-section (1) shall be presumed to be true until the contrary is proved."
Thus, when the revenue entries raise only a rebuttable presumption a party objecting to the said entry can always by sufficient evidence rebut the presumption. Shutting out such objections at the very threshold cannot be said to be in accordance with the provisions of the Act, 1953.
However, it is observed that the plea of estoppel, acquiescence if applicable in any particular case can be taken and proved in accordance with law during consolidation proceedings, but no kind of bar in filing objection or raising a dispute can be read in Act, 1953, nor Section 49 can be said to have any application with regard to such pleas raised by any person who is not recorded in the revenue records.
In view of the foregoing discussions, we answer the Question Nos.3,4 and 5 as follows:
3)The learned Single Judge in Jagdeo's case (supra) was not justified in invoking the principles of doctrine of estoppel and acquiescence for creating an implied bar merely because a co-tenant had failed to assert his rights under the Act, 1950, and a co-tenant is not barred in raising objections under the Act, 1953.
4)The provisions of the Act, 1953, being a special Act has an overriding effect over other Acts for the time being in force relating to adjudication of rights by tenure holders contemplated under the Uttar Pradesh Consolidation of Holdings Act, 1953 and it is the consolidation courts that have exclusive jurisdiction to decide the right, title and interest of claims relating to land tenure upon a notification under Section 4 of the Act.
5)Long standing entries which are questioned in an objection filed under the Uttar Pradesh Consolidation of Holdings Act, 1953 hold only a presumptory value and they cannot be taken to be an absolute proof for pressing the principle of estoppel, acquiescence and waiver and no automatic bar of Section 49 of the Uttar Pradesh Consolidation of Holdings Act, 1953 is attracted.
The reference dated 21/7/2009 is answered accordingly.
Let the answers be placed before the learned Single Judge for hearing the writ petition.
10/3/2011 SB