2019 Supreme(Pat) 882

IN THE HIGH COURT OF JUDICATURE AT PATNA
AMRESHWAR PRATAP SAHI, CHAKRADHARI SHARAN SINGH, ASHUTOSH KUMAR, SANJAY PRIYA, RAJEEV RANJAN PRASAD, JJ.
Most. Prabhawati Kumari, wife of Late Baccha Singh - Petitioner
Versus
The State of Bihar & Ors. - Respondents
Civil Writ Jurisdiction Case No.2502 of 1988, 1361 of 1977
Decided On : 02-09-2019

Headnote:

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956—Section 3, 4(c) and 37—Bar of jurisdiction of the civil court—Consolidation authorities have got Status of 'Deemed Courts' and they have powers akin to the civil courts to summon witnesses, taking of evidence etc. (Para 3)

2000(2) PLJR 338(FB)—Minority view

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956—Sections 26-A, 37 and 3/A—Question as to whether a suit based on title is maintainable after close of the Consolidation operation—The decision of consolidation authorities cannot be re opened/challenged in a civil court by the parties even after closure notification u/s 26-A of the Act. (Para 4)

Per Chakradhari Sharan Singh, J.

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956—Validity—Constitution of India-Article 31-B—The Act and subsequent amendments of the Act have been included in Ninth Schedule of the Constitution since 30.08.1995 i.e. after the Full Bench decision of High Court in cases of "Ramkrit Singh" and "Kalka Kuer and as such none of the Acts and Regulation specified in the Ninth Schedule of the Constitution nor any of the provision shall be deemed to be void or ever to have become Void, on the ground that such Act, Regulation or Provision is inconsistent with, or takes away or abridges any of the right conferred by any provisions of Part III of the Constitution—It further declares that notwithstanding any judgment, decree or order, of any court or tribunal to the contrary, each of the said Acts and Regulation shall continue to remain in force- the scope of any challenge to Constitutional validity of the provisions almost diminishes and is available only on the ground that it destroys basic structure of the Constitution—On inclusion of the Act in Ninth Schedule, the validity of the provisions of the Act cannot be tested on the touchstone of Arts 13 and 14—The Full Bench decision in case of Kalika Kuer case" holding Section 15(1) ana Section 15(2) of the Act ultra vires Articles 13 and 14 of the Constitution has lost its significance. (Paras 6, 8, 10, 12 and 61)

AIR 1972 SC 425; (2007) 2 SCC 1—Relied upon.

Per Amreshwar Pratap Sahi, CJ (Assenting with Chakradhari Sharan Singh, Ashutosh Kumar, Sanjay Priya and Rajeev Ranjan Prasad, JJ.)

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956—Section 4(C)—Is intra-vires—Already upheld by the Supreme Court in the case of "Satyanarayan Prasad Sah"—This issue is no longer a res-integra. (Para 1)

AIR 1980 SC 2051—Relied upon.

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 Sections 15 and 16—Sections 15 and 76 of the Act have no conflict with each other-both operate in mutually exclusive fields and supplement each other. (Para 2)

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956—Sections 3 and 4(c)—Once a notification has been published u/s 3 of the Act every suit and proceeding in respect of declaration of rights or interest in any land lying in areas or for declaration or adjudication of any other rights in regard to which proceeding can or ought to be taken under the Act pending before any court or authority whether of the first instance or of appeal, reference or revision, Shall, on order being passed in that behalf by the court or authority before whom such suit or proceeding is pending shall stand abated. (Paras 92 and 93)

AIR 1968 SC 714; (1975)4 SCC 457; AIR 1980 SC 2051:1981 PLJR (SC) 220; (1973)2 SCC 535; 1991 Supp. (1) SCU 556—Relied upon.

1969 ALJ 768—Referred to.

AIR 1982 Pat. 37: 1982 PLJR 1; 1982 PLJR 392—Overruled in AIR 2013 SC 1010:2013(1) PLJR (SC) 1.

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 Section 37—Consolidation authorities have power to decide the question of title and the decision rendered by them on the question of title is final and same cannot be challenged in a civil court however, judgment/orders of the consolidation authorities or the entries made by them in the records in respect of the matters cognizable by it, passed or recorded without Complying with the provisions of the Act or against the fundamental principle of judicial procedure or obtained by fraud is amenable to jurisdiction of the Civil Court. (Para 93)

AIR 1980 SC 2051: 1981 PLJR (SC) 220; AIR 2013 SC 1010: 2013(1) PLJR (SC)1—Relied upon

2000(2) PLJR 338(FB)—Minority view approved.

Bihar Consolidation of Holdings are Prevention of Fragmentation Act, 1956—Sections 15, 16 and 17—Validity—Provision confers upon the Consolidation Officer power to grant a certificate to every raiyat/under-raiyat to whom holding/land has been allotted in pursuance of the consolidation scheme and certificate shall be conclusive proof of title after the exercise undertaken in accordance with various other provisions of the act—Challenge on the ground that it takes away the power of Civil Courts manned by judicial officers properly trained to adjudicate complex question of disputes relating to title and possession and allows the executive officials to adjudicate, even complex issue of title of rival parties-plea also that this the doctrine of separation of powers—Constitutional Amendments, whereby the Act has included in the Ninth Schedule of the Constitution was never challenged, the provisions cannot be challenged on the ground that it hits separation of powers under Constitution which is Basic Structure doctrine—High Court cannot travel beyond the Basic Structure doctrine while considering the validity of statutory provisions of the Act—Constitution does not command adjudication of civil dispute exclusively by the civil court—Code of Civil Procedure itself contemplates a situation where jurisdiction of civil courts in adjudication of such matters can be barred—Barring jurisdiction, is not against the doctrine of separation of power—The review of any action of the Consolidation authorities under the Act—Plea that Consolidation officers are not adequately trained to decide disputes and therefore, the provision is invalid and against the basic structure of the Constitution, rejected the court pointing out various enactments leading to constitution and establishment of tribunals for adjudication or trial to the exclusion of civil courts. (Paras 73 to 85 and 93)

(1997)3 SCC 261: 1997 (1) PLJR; AIR 1979 Pat. 250; AIR 1973 SC 1461; (1994)3 SCC 1 1989 PLJR 1203(FB)—Overruled.

(SC)84; AIR 2013 SC 1010: 2013(1) PLJR (SC) 1—Relied upon.

161: 1979 BBCJ 259(FB)—Approved.

AIR 1973 SC 1461; (1994)3 SCC 1—Referred to.

1989 PLJR 1203(FB)—Overruled

Per Ashutosh Kumar, J.—

Constitution of India—Article 31-B—Ninth Schedule—There are three stages at which the Parliament could pick up a legislation in the Ninth Schedule—Any fresh enactment can be put in such Schedule so as to guard it against any adverse judicial decision in future—A law which has been struck down could be revived by placing it in Ninth Schedule since the basic structure of Constitution included some of the fundamental rights, any law which was granted Ninth Schedule protection deserved to be tested against these principles if the law infringes the essence of any of the fundamental rights or any other aspect of basic structure, then it will be struck down, the extent of abrogation and limit of abridgment shall but have to be examined in each case. (Paras 33 and 43)

AIR 2007 SC 861: (2010) 10 SCC 96; (1952) SCR 89; (1965)1 SCR 938, (1967)2 SCR 762; (1973)4 SCC 225 1975) Supp. (1) SCC 1: (1981)2 SCC 362: (1972)2 SCC 133; AIR 1972 SC 2097: (1981)1 SCC 166: (2010)10 SCC 96—Relied upon.

AIR 1951 Pat. 91(FB); AIR 1971 Ker 98—Referred to.

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1966—Sections 3, 4(0), 12-A, 16(1), 15(2) and 37—Purpose of notification under the Act is to prepare a scheme for Consolidation of holdings for better cultivation of land by preparing of up-to-date record of rights—In order to avoid any unnecessary delay in such process, Section 37 bars jurisdiction of civil courts to entertain any suit or application to vary or set aside any decision or order given or passed under the Act any provision for making consolidation officers to be the deemed courts of competent jurisdiction for deciding even issues of title during the pendency of the consolidation operations, is constitutionally valid—No basic structure or the Constitution is damaged or abrogated if for a temporary period lis is decided by an authority away from the courts especially when the power of the High Court and Supreme Court or Judicial review of any action of the consolidation authorities under the Act have not been attempted tobe clouded. (Paras 50 to 52, 56 and 58)

(1951) SCR 682; AIR 1960 SC 457; 1956 SCR 28; AIR 1980 SC 2051: 1981; PLJR (SC)220; AIR 1981 SC 1450: 1982 PLJR (SC) 59; (1997) 3 SCC 261: 1997 (1) PLJR (SC) 84; AIR 1968 SC 714; (1975)4 SCC 457—Relied upon.

(2000(2) PLJR 338(FB); AIR 1979 Pat. 250: 1979 PLJR 161: 1979 BBCJ 259(FB)—Approved.

1989 PLJR 1203 (FB)—Overruled.

(1973) ALJ 53; (2003) 5 SCC 448: 2003(3) PLJR (SC) 76—Referred to.

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956—Sections 4(C), 15, 16, 17, 37-A and 37-B—Any proceeding in a civil court covered by Section 4(C) would be within the exclusive jurisdiction of Consolidation authorities and any order passed by a civil court regarding land pending before the civil court would stand abated, is a reasonable restriction on the court—Section 4(C) not violative of Article 14 of the Constitution—Mere fact that consolidation courts are not being manned by Judicially trained officers could not mitigate against the Vires of the consolidation Act—Sections 4(C), 15, 16 and 17 of the Act do not Violate any or the principles of natural justice or fair play and are not ultra vires to Article 13 and 14 of the Constitution of India—The jurisdiction of the civil court has been barred only with aim and object of speedy consolidation of the agricultural holding consolidation authorities shall be deemed to be courts of competent jurisdiction while hearing objection or appeals or deciding appears under the Act in terms of provision of sections 37-A and 37-B of the act. (Pars 54 to 57)

AIR 2013 SC 1010: 2013(1) PLJR SC 1; AIR 1974 SC 2009; AIR 1959 SC 5 AIR 1955 SC 191; AIR 1985 SC 39; ALA 1991 SC 249; AIR 1980 SC 2051—Relied upon.

Per Rajeev Ranjan Prasad, J.—

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 Section 4(c)—Once a suit, appeal, revision or proceeding abates, the decree under challenge in any appeal, revision or proceeding shall not be relied upon by the consolidation authorities converse to this, if on the date or notification u/s 3, a decree had attained in any as no appeal or revision was filed within the limitation provided under the statute and was not pending, such decree in a suit or order passed in a proceeding shall be binding between the parties in consolidation proceeding. (Para 98)

AIR 1980 SC 2051: 1981 PLJR (SC) 220; AIR 1981 SC 1450; AIR 2013 SC 1010:2013 (1) PLJR (SC) 1—Relied upon.

AIR 1979 Pat. 250: 1979 PLJR 161: 1979 BBCJ 259(FB)—Referred to.

1989 PLJR 1203(FB)—Overruled.

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956—Sections 15 and 16—Section 15 clearly provides the intention of the legislatures that once the scheme of consolidation is finalized in terms of Section 13 of the Act, the Consolidation Officer shall issue a certificate in the prescribed form and in prescribed particulars which will be a conclusive proof of title of such raiyats to such holding—Sections 15 and 16 of act operate in mutually exclusive field and they supplement each other, hence there is no conflict between the two provisions. (Paras 99 and 100)

2000(2) PLJR 338(FB)—Minority view approved.

AIR 1979 Pat. 250: 1979 PLJR 161: 1979 BBCJ 259(FB)—Approved.

Bihar Consolidation of Holdings and the Prevention or Fragmentation Act, 1956—Sections 26—A, 37 and 37A—Act contains a detailed provision for determination of the question of right and interest, including the question of title and it aslo provides an adequate remedy in terms of Sections 37 and 37-B ofthe Act—Section 37—A contains a non-obstante Clause and it clearly records that the authorities under the Act shall be deemed to be a court of competent jurisdiction while deciding disputes, hearing objection, appeals etc. and Section 37-B vests power or civil Court in the authorities under the Act with regard to certain matters—It would not be just and proper to say that the consolidation authorities are courts of limited Jurisdiction—The consolidation authorities are tully competent to deal with the issue of title with only exception which has been carved out by Apex Court in the case of "Gorakn Nath Dubey"—However, the consolidation authorities are court of competent Jurisdiction to decide the question of titlein respectof a land which is subject matter of a consolidation proceeding the decision of the consolidation authorities cannot be reopened/challenged in a civil court by the parties even after closure notification u/s26-A ofthe Act—The revisional order passed by the consolidation authority is open to challenge in High Court u/Art. 226 of Constitution of India and High Court may, in a case of preverse finding of fact arrivedat by Consolidation authority, interfere with the same, therefore, the orders of consolidation authorities may be scrutinized to that extent. (Paras 102 to 108)

AIR 1973 SC 2451; AIR 1980 SC 2051: 1981 PLJR (SC) 220; AIR 1981 SC 1450—Relied upon.

(2000)4 SCC 262; (1991)4SCC 139; (2001)6 SCC 356; AIR 1951 SC 318; AIR 1960 SC 457; AIR 1963 SC 222; AIR 74 SC 2009; 1957 SC 436; 1956 SUR 28, (1968)2 SCR 95—Referred to.