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TMI Blog1979 (3) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 1st party in favour of defendant second party were not binding on the plaintiffs. It was therefore, prayed that the said alienations be set aside and the plaintiffs be put in possession of the properties mentioned in Schedule I to the plaint. The properties in the suit are situate in several villages. In all these villages according to the finding of the learned Additional Subordinate Judge, consolidation proceedings are going on. An application was filed on behalf of the defendants stating that consolidation operation had commenced in all the village where the lands involved in the suit are situate. It was, therefore, prayed that it should be held that the suit has abated under the provisions of Section 4 (c) of the Act. A rejoinder was filed to this application. After hearing the parties, the suit has abated. The order of the learned Subordinate Judge is contained in Annexure. 5. It is this Annexure, which the petitioners pray, be quashed. Statutory provisions :-- 3. The long title itself and the preamble of the Act clearly reflect the purpose of the Act. It is to provide for consolidation of holdings and to prevent fragmentation of land. Section 3 of the Act empowers the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such proceeding to such Officer for disposal, then the proceeding shall not abate or shall not be considered to have been abated :-- Provided also that no such order shall be passed without giving to the parties notice by post or in any other manner that may be convenient and after giving them an opportunity of being heard : provided further that 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 : Provided that the State Government may, by notification in the Official gazette, exempt any such proceeding, suit, appeal, reference or revision, or any class of them, if in its opinion their abatement is not in public interest, and is not necessary for the purpose of this Act :-- Provided further that nothing in this section shall apply to any proceedings under Chapters XI and XII of the Code of Criminal Procedure, 1898 (Act V of 1898), Section 48-E of the Bihar Tenancy Act (Act VIII of 1885) and the Bihar Land Reforms (Fixation of Ceiling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such rent as may be specified in the certificate (2) A similar certificate of transfer shall be granted to every under-raiyat, whether having a right of occupancy or not in any land allotted to him in pursuance of the scheme and the certificate shall be conclusive proof of the title of such under-raiyat to such land and he shall be liable to payment of such rent and to such person as may be specified in the certificate.' Section 16 states that the confirmed scheme is to be treated as finally published record of right. Section 26-A empowers the State Government to issue notification in the official gazette stating that the consolidation operations have been closed in a particular area. Section 37 creates bar for jurisdiction of Civil Courts. It is as follows :-- Bar of jurisdiction of Civil Courts :--No Civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act with respect to any other matter for which a proceeding could or ought to have been taken under this Act. Section 40 empowers the State Government to make rules for carrying out the purposes of the Act. Vires of Acts :-- 4. The main attac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be made to the Evacuee Property Act which entitled the authorities under the Act to decide questions of title. It is well settled now that in order to pass the tests of permissible classification it has to be seen whether (a) the classification is founded on an intelligible differentia which distinguishes those that are grouped together from others left out of the group, and (b) the differentia has a rational relation to the object sought to be achieved by the Statute in question. Are these tests fulfilled in the present Statute? So far as the first test is concerned, it is patently clear that those whose lands have to be consolidated constitute a class by themselves. There is an intelligible differentia between them and those who are out of that class. Where a law is applicable to well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it does not apply to other person, State of Bombay v. F. N. Balsara (1951 SCR 682 at pp. 708, 709 : (AIR 1951 SC 318 at p. 326)). 7. The second test also, in my view, is fulfilled in this case. But it is not without some hesitation that I have come to this conclusion. In order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted, consolidation proceedings might be held up for an indefinite period. It is therefore necessary that such cases be treated differently from cases where consolidation proceedings are not taking place. And finally what was said by Venkata-rama Aiyar, J in Lachhman Dass v. State of Punjab (AIR 1963 SC 222 at p. 233) :-- It is then contended that Section 11 of the Act bars the jurisdiction of the Civil Courts with reference to the disputes triable under the Act, and that is unreasonable. It is too late in the day to contend that provisions in statutes creating a special jurisdiction and taking away the jurisdiction of Civil courts in respect of matters falling within that jurisdiction are unreasonable or opposed to rules of natural justice. It has only to be remembered that provisions excluding the jurisdiction of Civil Courts in such case do not affect the jurisdiction of either the High Court under Article 226 or of this Court, under Article 32 or Article 136 to interfere when grounds therefore, are established . 10. Although, I am of the view that the strict standard required for getting the law declared as discriminatory and thus invalid has not been made out in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elling any person for production of any document and the like. This is clear from the provision of Section 37-B of the Act which is as follows :-- 37-B. Authorities under this Act to have powers and privileges as are vested in a civil court in certain matters -- (1) The Director of Consolidation, the Deputy Director of Consolidation, the Assistant Director of Consolidation, the Consolidation Officer and the Assistant Consolidation Officer shall have all such powers, rights and privileges while hearing any matter in dispute as are vested in a Civil Court in respect of the following matters, namely :-- (a) the enforcing of the attendance of witnesses and examining them on oath, affirmation or otherwise and the issuing a commission to examine witnesses; (b) compelling any person for the production of any document; (c) punishing the persons guilty of contempt. (d) A summons signed by such officer may be substitute for and shall be equivalent to any formal process capable of being issued in any action by a Civil Court for enforcing the attendance of witnesses and compelling the production of any document. Of course the provision for appeal as pointed out in Chhaggan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would revive. But the revival of those suits would not create any problems as suits will have to be decided in conformity with the decisions arrived at in the consolidation proceedings in so far as the rights or interest in any land covered by the consolidation proceedings is concerned. If this interpretation is accepted it would be seen that suggested harshness or injustice disappears. In the illustration already given, if a party succeeds in establishing its title, after the close of the consolidation proceedings, it would be open to it not only to have its title declared accordingly but also to have a decree for mesne profits. 15. It was contended by the learned counsel for the petitioners that there may be composite suits where two reliefs namely, one relating to title to land and some other independent relief may be prayed for. In those cases also the abatement of suit would lead to clear injustice. Such abatement would have neither any nexus with the object of the Act nor amount to a reasonable restriction on the right to property. It would thus be violative of the right to property as guaranteed under the Constitution. This argument is on the assumption that there is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government to initiate proceedings in villages of its choice. This power was drastic and arbitrary. It is not possible to accept this argument also. So far as the guidance is concerned it is available both from the preamble and general scheme of the Act. It is patently clear that a law of this nature cannot be applied throughout the State at the same time. There are various administrative and financial constraints. The mere fact that consolidation operations are not undertaken simultaneously throughout the district or State does not bring any infirmity in the law. (See Ram Chandra Palai v. State of Orissa, 1956 SCR 28 : (AIR 1956 SC 298)). This very aspect has been emphasised in the case of Shyam Sunder v. Siya Ram (1973 All LJ 53) : (AIR 1973 All 382). It has been held by this Court in relation to other statutes, that piecemeal application of law is not illegal or ultra vires. (See Nasibun Nisa v. State of Bihar C.W.J.C. No. 670 of 1978 decided on 27-6-1978 (Pat)). In view of the interpretation that I have put on Section 4 (c) of the Act, I am of the view that the challenge to the validity of the provisions of the Act on the grounds urged in the course of argument cannot be accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenged by way of writ. But the challenge, as is well known, is restricted challenge. There cannot be challenge to erroneous determination on questions of fact. This could have been, obviously, obviated, if in relation to question of title, at least an appellate forum was provided before a court, say, the District Judge. The apprehension that there would be delay could very well be eliminated by laying down a time limit in the law for disposal of such appeals. I have, no doubt, in my mind that the High Court would have made appropriate arrangements for the early disposal of such matters. Indeed, even in the High Court, cases relating to acquisition of surplus lands under the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act are taken up and decided with utmost speed. Rule in cases, which are admitted, is usually made returnable between five weeks to eight weeks and that too to enable the State to be adequately prepared at the time of hearing and file counter affidavits, if necessary. If this can be done in the High Court, I do not see any reason why adequate administrative arrangement could not be made in the District Courts for dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hasise that better and economic agricultural management depended largely upon bringing together fragmented land holdings of the farmer. This laudable object of the Act was not disputed and rightly so. The main thrust of the argument of Mr. Kailash Roy is against the procedural aspect of the legislation. 23. Procedural laws are of recent origin. Towards the close of the Seventeenth century vigorous new policy of imperial discipline paved the way to the adoption of common law practice of the Kings' Court from Biblicism and local customary English law. It resulted into carrying appeals from provincial Courts to King in Council. The growth of propertied class created a market for the service of lawyers specially in common law. The rise of the propertied class was of the great importance in the reception of the common law also in America since the class influence was exerted to maintain stability and conservation. Rapid growth of commercial enterprises necessitated the resort to more technical system of the English common law. Law can never remain static. It is nothing more than a superstructure the reflection of a certain economic structure. It is unscientific and contrary to al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be decided by the persons not fully trained in law cannot mean that it was intended to be exercised in an arbitrary manner without reference to the declared object of the Act Legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts (Kolmes J in Musouri v. May (1880) 101 US 22 Competent legislatures, therefore, are entitled to alter procedural law in such a way as it considers proper. Great weight must be attached to the fact that the elected representatives of the people who made the law did not think that the law was palpably discriminatory. Of course that is not conclu sive. It would be better to quote the observations of Willis, I quoted in paragraph No. 71 in the case of the State of West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75) (at p. 99) :-- The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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