Orissa High Court
Gulzar Khan vs Commissioner Of Consolidation And Ors. on 7 May, 1993
Equivalent citations: 1993(II)OLR194
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT B.L. Hansaria, C.J.
1. The Bar tells us: There may be pain without injury, sorrow without tears, but not a right without remedy. This is what we have to keep in fore-front to decide the question with which this Full Bench is seized on a reference from a Division Bench, which is whether the power conferred by Section 37 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act. 1972 (hereinafter called 'the Act" ) would be available for exercise after a notification has been issued as contemplated by Section 41(1) of the Act on the subject that consolidation operations have been closed in the unit, the result of which is that the village or villages forming part of the unit cease to be under consolidation operations.
2. We may note in brief as to why the reference came to be made. This is so because the Bench hearing the aforesaid case felt after hearing the counsel for the petitioners for some time that the view taken in OJC No. 1671 of 1986 : (Govind Ch. Misra v. Kanak Prava Devi) disposed of on 6-5-1907 : 64(1987) CLT (Notes 58)48: OJC No. 316 of 1985 (Krushna Priya Rath v. Consolidation Commissioner ) disposed of on 27-6-1991 ; and OJC No. 1662 of 1983 (Krushna Chandra Patra v. Harekrushna Naik) disposed of on 26-4 1990, as per which power Under Section 37 of the Act can be exercised even after the notification Under Section 41 has been issued, may not be correct.
3. Reference to the decisions in the aforesaid O. J. Cs. however, shows that this point had really not been directly examined, though some observations were made on the question under consideration. But then, this point had been the subject matter of a direct decision of this Court in (Maguni Pradhan v. Commissioner of Consolidation); 1992 (I) OLR 246, to which one of us (Jagadeb Roy, J.) was a party, in which the question at hand was answered affirmatively. We shall advert to this decision at the appropriate place.
4. Before we proceed to examine the question referred to us, it would be apposite to observe that availability of the power Under Section 37 of the Act despite a notification having been issued as contemplated by Section 41 (1) of the Act is an altogether different question form the exercise of that power. Even though a power is available, the exercise of the same may be restricted and may depend upon facts and circumstances of each case. We have mentioned this aspect at the thereshold because arguments have been advanced from the Bar that Section 37 having not mentioned, inter alia, about any period of time within which the power can be exercised the same is liable to be misused. As to this, we would state that misuse of power is altogether a different aspect ; and if it is so done, the same can be challenged in appropriate forum including this Court. It may also be stated that Section 37 power having been conferred on the Consolidation Commissioner, who is a very high revenue authority, there is a presumption that he would not misuse the same ; and if he does, as already stated, the aggrieved person would not be remedyless. That may not, however be a ground to deny the availability of the power, with which question we are concerned. In this context it would be useful to refer to (Modern Fabricators v. Rejendra Harichandan) ; 73(1992) CLT 217, in which a Bench of this Court while dealing with the power Under Section 37 stated that the some has to be exercised with care, caution and circumspection and any liberal construction would take away the rigours imposed by the statute. The Bench further observed that there ought to be compeIling and/or extenuating circumstances for the exercise of this power. This decision was cited with approval by another Bench in OJC No. 2763 of 1984 ; (Lingaraj Mohanty v. Janaki Ballav Sahu) disposed of on 7-4-1992.
5. Let us now examine the point under consideration and let the provisions of the Act which are important for our purpose be first noted. These are Sections 3, 4(4), 12, 36, 37, 41 and 51 reading as below ;
"3. Declaration and notification regarding consolidation ;
(1) The State Government may where they are of the opinion that any area, which shall comprise a village or group of villages, maybe brought under consolidation, issue a notification to that effect whereupon it shall become lawful for the Consolidation Officer or his subordinate or any other officer acting under his authority ;
(a) to enter upon and survey in connection with rectangulation or otherwise and to take ; levels of any land in such area, if necessary ;
(b) to clear by cutting or removing any tree, jungle, fence, standing crop or other material obstruction during such survey or taking of levels and
(c) to do all acts necessary to ascertain the suitability of the area for consolidation operations.
(2) The Consolidation Officer shall cause public notice of the notification issued under Sub-section (1) to be given in the prescribed manner.
(3) The Assistant Consolidation Officer shall tender compensation to the person concerned for any damage which may have been caused by any action taken under Sub-section (1) and in case of any dispute as to the assessment or payment of the amount so tendered, he shall refer the matter for decision by the Consolidation Officer whose decision thereon shall be final and shall not be questioned in any Court of law."
"4. Effect of notifications-Upon the publication of the notification issued under Sub-section (1) of Section 3 in the official gazette, the consequences as hereinafter set forth, shall, subject to the provisions of this Act, ensue in the consolidation area till the publication of notification Under Section 41 or Sub-section (1) of Section 5, as the case may be --
(4) every suit and proceedings for declaration of any right or interest in any land "situate within the consolidation area in regard to which proceedings could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal, reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending stand abated ;
Provided that no such order shall be passed without giving the parties concerned an opportunity of being heard ;
Provided further that on the issue of a notification under Sub-section (1) of Section 5 in respect of the said area or part thereof ;
(a) every order passed by the Court under Clause (4) in relation to the lands situate in such area or part thereof, as the case may be, shall stand vacated; and
(b) all such suits and proceeding as are referred to in Clause (3) or Clause (4) which relate to lands situate in such area or part thereof, as the case may be, shall be proceeded with and disposed of in accordance with the law as if they had never abated;
Provided also that such abatement shall be without prejudice to the right of the person affected to agitate the right or interest which formed the subject-matter of the said suit or proceeding before the proper consolidation authority in accordance with the provisions of this Act or the rules made thereunder."
"12. Appeal-Any person aggrieved by an order of the Assistant Consolidation Officer or the Consolidation Officer Under Section 10 or 11 may, within thirty days from the date of the order file an appeal in the prescribed manner before the Director of Consolidation whose decision shall, except as otherwise provided by or under this Act, be final."
"36. Revision-(1) The Consolidation Commissioner may on an application by any person aggrieved by any decision of the Director of Consolidation within ninety days from the date of the decision, revise such decision and for the said purpose, he may call for and examine the records :
Provided that no such order shall be passed without giving the parties concerned a reasonable opportunity of being heard.
(2) All orders passed under this section shall be final and shall not be called in question in any Court of law."
"37. Power to call for records-(1) The Consolidation Commissioner may call for and examine the records of any case decided or proceedings taken up by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings and may, after allowing the parties concerned a reasonable opportunity of being heard make such order as he thinks fit.
(2) The power under Sub-section (1) may be exercised by the Director of Consolidation in respect of authorities subordinate to him."
"41. Closure of consolidation operations-1) As soon as may be after the final maps and records have been prepared Under Section 22, the State Government shall issue a notification to the effect that the consolidation operations have been closed in the unit and then the village or villages forming part of the unit shall cease to be under the consolidation operations :
Provided that the issue of a notification under this section shall not affect the operation of the provisions contained in Chapter IV.
(2) Notwithstanding anything contained in Sub-section (1), consolidation operations shall not be deemed to have been closed in respect of cases or proceedings pending under the provisions of this Act on the date of issue of notification under Sub-section (1).
(3) The orders passed by the competent authorities in matters referred to in Sub-section (2) shall be given effect to by such authorities as may be prescribed."
"51. Bar of jurisdiction of Civil Courts-Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in Clause (3) of Section 4 and Sub-section (1) of Section 7 :
(1) all questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction or Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation operations; and (2) no Civil Court shall entertain any suit or proceeding in respect of any matter which an officer or authority empowered under this Act is competent to decide."
6. To correctly appreciate the combined effect of the aforesaid provisions for the purpose at hand, we have to know the broad scheme of the Act. The same is that the consolidation operation starts with notification Under Section 3 which is issued when the State Government is of the opinion that any area may be brought under consolidation operation. Section 4 lays down the effect of such a notification which, inter alia, is that the consolidation area shall be deemed to have been under consolidation operations and the duty of preparation of record of rights shall be performed by the Assistant Consolidation Officer who is required to act in the manner provided in the section, Section 8 requires the Assistant Consolidation Officer to prepare in respect of each unit in consultation with the Consolidation Committee a statement called the "Statement of Principles" setting forth the principles to be followed in carrying out consolidation operations in the units. Copy of the map, land register and other records prepared undo.' Section 6 in exorcise of the power conferred by Sub-section (2) along with Statement of Principles are required by Section 9 to be published in the unit in the prescribed manner and Sub-section (2) thereof enjoins giving of notices containing relevant extracts from the land register to the land owners mentioned in the register, Such a person may then file before the Assistant Consolidation Officer objection (s) on the correctness of the entries or on the Statement of Principles and Section 10 requires this office to dispose of the same by conciliation failing which to forward the matter to the Consolidation Officer for disposal. On the matter being so forwarded, the Consolidation Officer is required by Section 11 to dispose of the objection (s) after giving the parties reasonable opportunity of being heard and alter such local inspection as deemed necessary.
7. This concludes the basic exercise. Section 12 has conferred right on any person aggrieved by the order of the Assistant Consolidation Officer or the Consolidation Officer to prefer appeal before the Director of Consolidation whose decision is to be final except as otherwise provided by or under the Act. Section 13 requires revision of map and land register prepared Under Section 6 if necessary on the basis of orders passed by the aforesaid authorities Under Sections 10, 11 and 12, whereafter the record Is to be published for a period of 15 days in the unit for the information of all concerned. Section 14 interdicts raising of question by the land-owner relating to right, title and interest in the land which question might or ought to have been raised Under Section 8 but not raised.
8. All the aforesaid provisions find place in Chapter-II of the Act whereas Chapter-Ill deals with preparation of the consolidation scheme with the details of which are not concerned in the proceeding except what finds place in Section 22, which states that after the provisional consolidation scheme is confirmed, the Consolidation Officer shall cause to be prepared for each village in the consolidation area a final map and the record-of-rights on the basis of the confirmed consolidation scheme, which are required to be published in the prescribed manner, on which being done, the final consolidation scheme comes into force
9. Chapter IV relates to enforcement of the scheme. Chapter V is on the subject of prevention of fragmentation and Chapter VI, which is the final chapter in the Act. contains, inter alia, Sections 37, 41 and 51 with which we are basically concerned, of whom Section 41 deals with the closure of the consolidation operations and states that the State Government shall issue a notification to the effect that consolidation operation had been closed in the unit and the village or villages forming part of the unit ceased to be under consolidation operations, and Section 51 with the Bar of Civil Court's jurisdiction.
10. Section 58 of the Act has empowered the State Government to make rules for carrying out all of any of the purpose of the Act pursuant to which the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Rules, 1973 were made Only one provision of the rule is relevant for our purpose and the same is Rule 26, according to which map and the record-of-rights Under Section 22 are required to be placed for inspection for a continuous period of 15 days.
11. The aforesaid shows that consolidation operation starts from the issue of notification Under Section 3 and they are closed by Section 41 notification. During the course of operation, the consolidation authorities discharge various functions and prepare various maps, land registers and other records and due notices are given to the land owners to have their objections to the recording which are required to be disposed of by either Assistant Consolidation Officer or Consolidation Officer followed by appeal to the Director of Consolidation, after which the records are finalised and published, and after 15 days of the publication, the consolidation scheme prepared in accordance with the recording done during the consolidation operations becomes final. It is worth-noting that the order to be passed, if any, the Consolidation Commissioner in exercise of the revisional power Under Section 36 of the Act is not awaited before the scheme is finalised.
11-A. Having known the scheme of the Act and having noted the relevant provisions let us now come to the core Shri Swamy appearing for the petitioner contends that as Section 41 of the Act has itself mentioned as to when despite close of the consolidation operation, provisions contained in the Act may remain operative, we should not allow any other provision to keep its hold alter operations have been closed. A persual of Section 41 along with other relevant portions of the Act snows that the provisions which are allowed or have to so operate are : (i) the provisions contained in Chapter IV as stated in the proviso to Section 41 (1) (ii) Chapter V dealing with prevention of fragmentation in an area in respect of which notification Under Section 41 has been issued (iii) cases or proceedings pending under the provisions of the Act or. the date of issue of notification under Sub-section (1) of Section 41, as stated in its Sub-section (2); and (iv) the provisions dealing with powers of the authorities conferred by the Act in so far as they are relevant to give effect to the orders passed by competent authorities in matters referred to in Sub-section (2) as provided in Sub-section (3). Learned counsel submits that beyond these no other provisions of the Act operate after Sec 41 notification and all the officers connected with consolidation operation become functus officio thereafter except to the extent that they may take actions in the aforesaid four matters.
12. in this connection our attention is invited under Sec 12 which has stated that the decision of the Director of Consolidation shall be final. It is pointed out that it is only after the decision of the Direcor of Consolidation that final maps, and land registers, etc. are prepared and so, that should be the end of the matter. Further leg of this argument is that Section 37 having found place in Chapter VI which has not been excepted the provisions contained in that chapter cannot operate after closure of the operations. Learned counsel finally submits that whatever grievance anybody may have after the closure of the operations, it shah be the Civil Court which has to be approached and not any functionary under the Act.
13. The aforesaid contention, however, runs counter to the decision of this Court in Maguni Pradfoan's case (supra) as to which Shri Swamy submits that that was not correctly decided. Let us see whether this submission can be accepted, in Maguni Pradhan's case a Bench of this Court while dealing with the expression "proceedings pending under the provisions of this Act" as finding place in Section 41 (2) observed that this expression has created some amount of contusion. To bring home this ' an illustration was given. The same related to the right conferred by Section 36 of the Act which has given revisional power to the Consolidation Commissioner and has prescribed a period of 90 days as the limitation for making application. (This period may run beyond 90 days, also, as because of what has been stated in Section 57 of the Act (to which our attention has been invited by Sri Mishra appearing for opp. parties 3 and 4) Section 5 of the Limitation Act, 1963 gets attracted. The Bench said that suppose before expiry of the period of 90 days, a notification Under Section 41 (1) is issued, and since the time prescribed for filing revision is not over, an aggrieved party has not preferred revision before the notification had been issued, could it be said that because there was no proceeding pending in the strict sense, the aggrieved party will have no remedy because notification Under Section 41 (1) has bean issued ? The Bench then stated that provisions have to be construed in a manner that the vested right of appeal or revision cannot be taken away and opined that the expression "pending" may not be given a narrow construction so as to confine it only to the cases where appeals or revision have already been filed and not to include those which may be in the process of being filed or under contemplation. Reference was then made to Section 37 and it was opined that the application filed by the aggrieved party may be the foundation or the information on the basis of which the Consolidation Commissioner may decide to exercise his power. It was therefore concluded that reading the provisions of the statute together and harmoniously, it could not have been the legislative intent to put out of operation any particular provision and so, the Bench opined that merely because a notification Under Section 41 has been issued, the power to act Under Section 37 (1) is not wiped out.
14. Though Shri Swamy regarded the aforesaid illustration as par relevant, according to us, it is very relevant. Before showing the relevancy we may observe that the illustration given is not fanciful, 'because notification Under Section 41 is to be issued as soon as may be after the final map and records have been prepared Under Section 22 and for preparation of such maps and records under Sec 22. all that it is required is that these documents with requited modifications are be published in the prescribed manner ; and the prescribed manner, provided in Rule 26 of the Rules (to which we have been referred by Shri Das, the learned Government Advocate), is publication for a continuous period of 15 days. The result of all these is that after the draft maps and records have been modified and re-published after 15 days, they become final and after they become final, Section 41 notification has to be issued as soon as may be. There is thus every possibility that after the appellate order has been passed by the Director of Consolidation, which alone is required to be taken care of for preparing revised map and land register, as would appear from Section 13 of the Act, an aggrieved person may contemplate to approach the Consolidation Commissioner in revision Under Section 36 and 90 days being available for it in the normal course, it may very well be that Section 41 notification is issued before any right conferred Under Section 36 is availed of. We may state in passing that though it has been held in some decisions that the power of revision is discretionary, which would so appear from the word 'may' in Section 36, that is not relevant for our purpose, because, if a case for invoking revisional power is made out, the Consolidation Commissioner shall be duty-bound to invoke his power.
15. The aforesaid shows that Maguni Pradhan's Bench did not pose a wide of-the mark question ; indeed, it was a down-to-the-earth poser. Now, the power of revision conferred by Section 36, which, though finds place in Chapter VI, has to be accepted as a part and parcel of the adjudicatory machinery made available by the Act to the concerned persons. We have said so because though while revising map and land register Under Section 13 of the Act, only orders passed Under Sections 10, 11 and 12 are taken note of, a perusal of the last section would show that the appellate order passed by the Director of Consolidation is really not final it is so except as otherwise provided by or under the Act, this clearly indicates that the 'legislature did not want to put a seal of finality on the appellate order of the Director of Consolidation. Not only this, the rule-making authority even provided in Rule 35 the manner of disposal of matter Under Section 36, and the legislature put a finality on the order or the revisional authority, as would appear from Sub-section (3) of that section, by further stating that, the order passed under this section shall not be called in question in any Court of Saw. All these provisions have been contained in the Act not without any significance and as the illustration given by Maguni Pradhan's Bench shows, recourse to revisional authority may be taken after the closure of the consolidation operations ; and if an aggrieved person were to be denied the remedy even of Section 36, that would be plainly against all intentions of the legislature. So, we read the revisional power conferred by Section 36 as an integral part of the scheme of the Act and a person aggrieved at the appellate order of the Director cannot be denied approach to the Commissioner merely because Section 41 notification has been issued.
16. What is true of Section 36 should be true of Section 37 also. There is another reason for our taking this view. The same is that Section 37 having found place in the Act, its existence cannot be ignored inasmuch as it is known that the legislature does not legislature unnecessarily, as stated in paragraph 9 of Utkal Contractors and Joinery Pvt. Ltd. v. State of Orissa : AIR 1987 SC 1454. Question may, however, arise as to at what point of time this power can be exercised. The section having not mentioned any time limit, can it be exercised at any time ? In this connection, our attention is invited to Section 59 (2) of the Orissa Land Reforms Act, 1960 in which it has bean specifically stated that the Board of Revenue may "at any time", on being moved in that behalf, revise any order passed by any authority. Question is whether omission of these words (at any time) from Section 37 would require us to say that the power Under Section 37 has to be exercised only during the pendency of the consolidation operations. Shri Swamy contends by referring to Maxwell's Interpretation of Statutes that nothing is to be added in a statute, as mentioned at page 33 of 12 the Edition. Reference is also made to Union of India v. Deokinandan Aggarwala : AIR 1992 SC 96, in which it has been stated that the Court has no power to legislate and it cannot re-write, recast or re-frame the legislation.
17. We have duly considered this submission. As it is not open to us to add any word, we cannot also cut down the width of the power conferred by the legislature. On the fact of no time limit for invoking Section 37 having been mentioned in the section, we cannot state that this power can be exercised only during the period of the consolidation operations. According to us, though the words "at any time" do not IInd place in that section, they have to be read by necessary implication. This conclusion of ours is reinforced by the fact that if the intention of the legislature would have been to make this power available to the Consolidation Commissioner only during the consolidation operations, the scheme of the Act would have required placing of the section not in Chapter V!, but perhaps immediately after Section 12, and a further provision would have been required to be made that while finalising the map and land register, the order which may be passed by the Consolidation Commissioner in exercise of the power Under Section 37 of the Act would be taken note of and maps and land registers would be modified accordingly. That, however, is not the position.
18. This is not alt. Section 37 having stated that the Consolidation Commissioner may call for and examine the records of "any case decided" by any subordinate authority, it would definitely take within its fold the decision of the Director of Consolidation given in appeal provided by Section 12 of the Act. But as the scheme of the Act may see finalisation of the map and land register and issuance of Section 41 notification before the Consolidation Commissioner can pass appropriate order relating to the case decided by the Director of Consolidation, if the order passed by the former shall not to be implemented, the purpose of conferring power on the Commissioner Under Section 37 would be lost. May we repeat that we are not concerned whether the Consolidation Commissioner would like in a case to invoke his power Under Section 37 and, as already stated, he would be within his rights to do so only if compelling or extenuating circumstances exist. But then, this aspect has nothing to do with the availability of the power ; the same relates to the exercise of power.
19. A submission has been made that as the consolidation authorities visualised by the Act become functus officio on the closure of consolidation operations, none would be left to implement the order to be passed by Consolidation Commissioner in exercise of powers conferred by Section 37 of the Act. As to this, we would observe that those very authorities, who are required to give effect to the orders to be passed in pending cases or proceedings, of which mention has been made in Section 41 (3) of the Act, which orders would apparently be passed after the closure of the consolidation operations, may give effect to the, order to be passed by Section 37 authority. The functus officio argument has thus no cutting edge ; it has neither claws nor teeth.
Availability of the Civil Courts :
20. As a submission has been made by Shri Swamy, which has received due support from Shri Mohanty appearing for the Civil Court Bar Association, that if any person would have any grievance to raise after closure of the Consolidation operation relating to any question of right, title and interest which had been decided under the provisions of the Act, he can approach the Civil Court (which submission is mean to take care of not a right without remedy' (ubi jus ibi remedium) principle which has been high-lighted in the opening sentence of the judgment), let it be seen whether this submission is tenable in the light of what has been provided in Section 51 of the Act dealing with bar of jurisdiction of Civil Courts. The submission made by these two learned counsels is that the bar operates only during the consolidation operations and once these operations are over, the bar would get lifted and all questions have to come to the Civil Courts thereafter. According to Shri Mohanty, this is even otherwise necessary because the proceedings conducted under the Act are summary as stated by Rule 3 of the rules which does not require filing of written statement and framing of issues or other necessary adjuncts to give opportunities to the contesting parties to have their full say in the matter. The learned counsel further draws our attention to Section 22 (4) of the Act, according to which the maps etc. published under Sub-section (2) of Section 22 shall be deemed for "all intents and purposes" to have been prepared under the Orissa Survey and Settlement Act, 1958, whose Section 42 saves the right of suit to get the record-of-rights corrected after the settlement. Because of this provision, Shri Mohanty submits that the right to suit relating to questions arising under the Act after closure of the consolidation operation as also saved.
21. As to the aforesaid two submissions of Shri Mohanty, the first of which is built up on the summary nature of proceeding under the Act and the second on Section 42 of the Survey and Settlement Act, we say as regards the first that the idea behind holding the submission seems to be that the decisions of the consolidation authorities are rather sketchy, and so, after the closure of the consolidation operations, parties should be allowed to approach the Civil Court as and when occasion would arise to uphold their right, title and interest with respect to the land which had been part of the consolidation area and relating to which some decision had been taken by the consolidation authorities during the consolidation operation. We do not think if we would be justified in conceding this submission only because the proceeding is required to be summary. As to this requirement, we shall first state that it has been rightly so prescribed because if it were not to be so, consolidation operations would linger for years, which would not be conducive in larger interest of the State. We would then observe that merely because a proceeding is summary, the same may not be viewed unfavourably because even some offences are permitted to be tried by the Code of Criminal Procedure summarily. This apart all that is really/ required to give opportunity to the parties to have their say in the matter has been provided by the Act; these, steps being service of notice after the maps etc. have been prepared by the staff, giving opportunity to file objection and disposal of the same either by the Assistant Consolidation Officer or by the Consolidation Officer followed by appeal to the Director of Consolidation. These provisions to take care of any hush-bush or "justice hurried, justice buried".
22. As to the second, we state that it Is misconceived because no provision of the Survey and Settlement Act, 1958 can be read in the Act inasmuch as the only two ways known to law for lifting the provisions of a statute bodily in another statute are to take recourse to legislation by reference and legislation by incorporation. The present is not a case of this nature at all. The reference in Section 22(4) to the expression "all intents and purposes", on which reliance has been placed by Shri Mohanty in this connection by contending that the dictionary meaning of this phrase is "in every important respect" is too thin an argument to bear such a heavy submission. Indeed, the expression ''all intents and purposes" itself would not support this submission, because that expression, as explained in "Words and Phrases", Permanent Edition of West Publishing Co., Vol. 3, does not necessarily imply that all provisions, or for that matter any provision, of the Survey and Settlement Act have to be read in the Act just for the use of this expression. This would be clear from what has been stated about this expression at page 255 of the aforesaid work the first two paragraphs of which read as below :
"Though a statute providing that gaming notes were void to 'all intents and purposes whatever', it should not be construed so as to avoid the note in the hands of a bona fide indorsee. Haight v. Joyes, 2 Cal. 64, 66. 56 Am. Dec. 311.
Under 9 Ann. c. 14, S. 1, providing that notes given for money lent for gaming purposes shall be void, 'to all intents and purposes', such notes are void even in the hands of an innocent purchaser for value without notice, since it would be making the notes of some value to the lender if he could pay his own debts with it. Sowyer v. Bampton, 2 Strange, 1155".
This would show that the meaning of this expression depends, inter alia upon the purposes for which it has been used. We are not at all satisfied if reference to the Survey and Settlement Act in Section 22 (4) of the Act has been made to refer to any provision of that Act for the purpose of deciding the question at hand.
23. in so far as the bar imposed by Section 51 is concerned, it is not necessary for us to labour on the Jaw on this subject, because the Bar has accepted that what has been laid down by the Full Bench of this Court in this regard in Magulu Jal v. Bhagaban Rai, AIR 1975 Ori 219 which was followed by another Full Bench of this Court in Duruju Mallik v. Krupasindhu Swain : 58 (1984) CLT 359 is correct and holds the field even now. In Magulu Jal's case (supra), G. K. Misra, C. J., after referring to a number of authorities on this point summed up the law in paragraph 20 by enumerating five principles namely :
"(i) Exclusion of the jurisdiction of the Civil Court is not to be readily inferred. Such exclusion must either be explicitly expressed or clearly implied.
(ii) Even if jurisdiction is so excluded. Civil Courts have jurisdiction to examine the cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, Civil Court would interfere if it finds the order of the special tribunal is unfair, capricious or arbitrary.
(iii) Where a liability not existing at common law is created by which at the same time gives a special and particular remedy provided by the statute must be followed and the Court's jurisdiction is ousted. The scheme of the particular Act is to be examined to see if remedies normally associated with sections in civil suits are prescribed by the statute.
(iv) The Legislature may entrust the special tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state off facts exists, as well as the jurisdiction, on finding that it does exist, to proceed further or to do something more. The Legislature shall have to consider whether there shall be an appeal from the decision of the tribunal as otherwise there will be none. In cases of this nature, the tribunal has jurisdiction to determine all facts including the existence of preliminary facts on which exercise of the jurisdiction the tribunal may decide facts wrongly or if no appeal is provided therefrom there is no appeal from the exercise of such jurisdiction.
(v) Even in a case when the Civil Court would have jurisdiction a finding that the special tribunal has acted beyond the scope of its authority as in point No. (i) it cannot substitute its own decision for that of the tribunal but would give a direction to dispose of the case in accordance with law."
24. Of the aforesaid five principles, it is principle No.(ii) which is attracted in the present case, and so, the learned counsel for all the parties are in agreement that if a case were to be such which would attract that principle. Civil Court would have jurisdiction, despite the bar contained in Section 52. Question is whether beyond that Civil Court would have jurisdiction in matters relating to right, title., interest etc. decided by the authorities under the Act during She consolidation operations.
25. The aforesaid question is not res integra inasmuch as five decisions of the Apex Court on a cognate provision have been brought to our notice in this context. The first is Suba Singh v. Mahendra Singh AIR 1974 SC 1657, which dealt with this question in the background of Section 49 of the U.P. Consolidation of Holdings. Act (5 of 1954) which had read.
"49. No person shall institute any suit, or other proceedings in any Civil Court with respect to any matter arising out of consolidation proceedings or with respect to any other matter In regard to which a suit or application could be filed under the provisions of this Act."
26. As the question raised in that case was as to who were the heirs of one Jagram who had died after the operation had come to close, the Court opined that the question was not covered by any of the two clauses of Section 49 and it was, therefore, opined that Civil Court's Jurisdiction is not barred. The important fact to be noticed about that decision is that the cause of action had arisen after the records had been finalised. A pertinent observation was, however, made in paragraph 9 that nothing done, in consolidation proceedings has been undone by the suit in question.
27. Shri Swamy and Shri Mohanty have taken pains to submit that the aforesaid decision would show that the entire concern was seen that the Civil Courts do not come into picture during consolidation operations which, according to the learned counsel, would be clear from the following observations finding place in paragraph 3 of the judgment-
"...The scheme of that Act, the policy behind that legislation and the language of the relevant provisions clearly shows that the legislature did not want questions of title to be decided by the Civil Court when the consolidation proceedings were under way. It is perfectly plain that the fragmented holding being converted into consolidated parcels of land is a complicated operation to be conducted by administrative authorities, and if long and frequent proceedings in Civil Courts hold up consolidation operation; the very transformation of land holdings in villages the legislature desired to produce would have been, indefinitely postponed and massed up. It is thus obvious that at this stage Civil Courts should not intervene even if the question were of hiership or title to property."
28. If the aforesaid decision which was followed in Karbalai Begum v. Mohd. Sayeed : AIR 1931 SC 77 without adding anything, would have been the only decision on this point, we would have applied our own mind to decide if the aforenoted submission merits acceptance by us. But three other decisions, one of which, Sita Ram v. Chhota Bhondey : AIR 1991 SC 249, noted what was opined in Suba Singh, it does not require us to probe the matter, as they negative the sub- mission.
29. The first of these decisions is Zafar Khan v. Board of Revenue, U. P. : AIR 1985 SC 39. It dealt with the question in the context Section 49 of the U. P. Consolidation of Holdings Act, 1993, which had barred Civil Court's jurisdiction. After noting the section in paragraph 16, the Court raised the question as to whether once the allotment had become final, would a suit lie with respect to rights in the land or with respect to any other matter for which a proceeding could or ought to have been taken under the 1953 Act ? And it was answered in the negative by stating that once the village was denotified, the allotment made in the 1953 Act become final and the final allotment could not be questioned by the suit before the Civil or Revenue Court in view of the bar enacted in Section 49.
30. The second decision was in Sita Ram's case (supra) in which the question for consideration was whether the bar of Section 49 of the U. P. Consolidation of Holdings Act, 1953 as amended in 1958 operated in so far as the suit which had been filed was concerned. On the language of the barring section, it was urged that the bar contained in that provision was not applicable to the suit of the appellant because the order passed by the consolidation authorities was without jurisdiction inasmuch as they could not decide the question as to titled to the land as well as the question relating to the parentage of respondent which Civil Court alone could decide. In support of this submission, learned counsel for the appellants placed reliance on the aforesaid case of Suba Singh (supra). The contention was rejected by referring to the wide language of Section 49 which stated that adjudication of any right arising out of consolidation proceedings in regard to which a proceeding could or ought to have been taken under the Act had to be in accordance with the provisions of the Act only and the jurisdiction of the Civil or Revenue Court with respect to rights in such land or with respect to any other matter for which a proceeding could or ought to have been taken under the Act would be barred.
31. Shri Swamy has contended that despite what was held in Sita Ram, what was opined in Suba Singh holds the field, according to, which the bar operates only during the pendency of the consolidation operation. We do not think if law permits us to agree with Shri Swamy because Sita Ram's Bench after taking note of Suba Singh's case had upheld the plea of bar. May we say that Suba Singh's case was decided by a Bench of two learned Judges so was Sita Ram's, and so by no token, observations made in the former case can remain operative after the decision in the later cases. More importantly, the observation in Suba Singh's case noted above is not the ratio of that decision ; that is not the law enunciated by that judgment, it is well settled that the ratio of a case is what it decides, and not what logically follows from the observations made in it, as pointed out in paragraph 13 of State of Orissa v. Sudhansu Sekhar : AIR 1968 SC647, by referring to Karl of Halsbury, L. C's view as taken in Quinn v. Leathern : 1901 A. C. 495. The same view had been expressed in Osborne v. Rowlatt : (1880) 13 Ch. D. 774 by stating that "the only thing in a Judge'a decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided'', as noted approvingly by a Constitution Bench in Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court: (1990) 3 SCC 682 (para-46).
32. Doubt, if any left, has come to be dispelled by what has been stated in Dayachand v. Om Dutta Sharma : AIR 1991 SC 1725 in which the bar of Section 49 of the U. P. Consolidation of Holdings Act, 1953 was pleaded when a suit had been filed under the provisions of U. P. Zamindari Abolition and Land Reforms Act. 1950 for declaration of Bhumidhari and Sirdari rights in respect of the land which according to the respondents, who had filed the suit, had been gifted by Smt. Phoolu in 1963. The question relating to the title to the Sand in dispute having been raised and adjudicated by the consolidation authorities who had held that the gift deed was invalid, raising of the same question in the suit was held to be barred because of what had been provided in Section 49.
33. The aforesaid three decisions do not leave any doubt in our mind that even after closure of the consolidation operations, the Civil Court cannot decide any question covered by Sub-sections (1) and (2) of Section 51 of our Act. The last two of the aforesaid decisions also take care of, albeit incidentally, that the so-called complicated questions ought not to be left to be decided by the consolidation authorities finally, and on such questions raising their head in future they should be left for the Civil Courts for final adjudication. We have made this observation because in Sita Ram, question of parentage, and in Dayachand, question of validity of the gift were allowed to be decided finally by the consolidation authorities. This shows that nobody in particular can claim monopoly of wisdom.
34. While making submission on the question of bar of Civil Court's jurisdiction as imposed by Section 51, our attention has been invited by Shri Mohanty particularly to Section 4(4) of the Act dealing with abatement of suit or procedding pending in any Civil Court on for such abatement to take place, specific order of the concerned Court would be necessary as per the decision of this Court, and as it may well be that in some cases abatement may not be ordered, we may not construe Section 61 very strictly, as if pending cases or proceeding may continue in Civil Courts, the legislature might not have intended to rigorously avoid fresh approach to these Courts after closure of the consolidation operations. We have not felt persuaded to soft-pedal the imposition of bar by Section 51 because of the provision in Section 4(4), as according to us, that is realty not relevant to decide the width of Section 51 and the legislative intendment, of which mention has been made in this context, appears hypothetical on which we do not propose to place any reliance while interpreting Section 51. Indeed, the legislature's desire is to the contrary of Shri Mohanty's submission, as apart from what has been provided in Section 51, Sec, 36(2) says that the order passed Under Section 36 "shall be final and shall not be called in question in any Court of law". So, two provisions, both unambiguous, require keeping of the Civil Courts at arm's length. We cannot bring them closer though they are dear to us.
35. It is, however, apparent that if any cause of action were to arise after closure of the operations, it is the Civil Court which has to be approached because in that case the consolidation authorities at the grass root would not be available. This apart as already indicated, if the case be such which would attract principle (ii) of Magulu Jal's case the Civil Court would have jurisdiction. May we say that if fraud had been played while decision had been taken by the consolidation operations, the same would also provide a ground to approach the Civil Court after closure of the operations. It may be pointed out here that Karbalai Bagum's case (supra) was one of fraud and it was, inter alia, because of this that the bar of Section 49 was not accepted to oust the jurisdiction of the Civil Court.
36. We may conclude our views relating to Civil Court's jurisdiction by stating that the same would be available after closure of consolidation operations only in any one of the following circumstances ;
(i) The cause of action accruing after the closure of the consolidation operations, ala Suba Sing.
(ii) If the consolidation authorities had taken the decision without complying with the provisions of the Act or had not acted in conformity with the fundamental principle of judicial procedure (which would take within its fold the case of violation of natural justice), vide principle No. (ii) of Magulu.
(iii) Obtaining of order from the hand(s) of consolidation authorities by playing fraud on the party who seeks to approach the Civil Court, as per Karbalai Begum's case.
37. The aforesaid being the position, it is apparent that a forum has to be available to a person who was to be aggrieved, after Section 41 notification has been issued, with any order having been passed or anything having been done during the consolidation operations affecting his right, title and interest. As stated in the opening sentence of this judgment, there cannot be a right without any remedy ; and, according to us, the remedy can be made available principally by Section 37 of the Act. As to when such a situation may arise need not be spelt out, indeed, it cannot be ; the probability of such a situation arising cannot obviously be ruled out. The power being unlettered, we cannot put any fetter, any such action of ours would render some really hard-pressed people without a remedy. May we repeat that we are not at the question as to when power under Sec, 37 would be or should be exercised. As already pointed out, this power shall be available only under compelling circumstances, but on compelling circumstances existing, we cannot shut out the invocation of the power. May we also observe that though Section 37 has conferred an unfettered power it is settled law that every power be it administrative or judicial, has as to be exercised in a reasonable manner, and the reasonable exercise of power inheres in its exercise within a reasonable time as stated at pp. 1245-6 of Manasaram v. S. P. Pathak : AIR 1983 SC 1239. This apart no power is really unfettered every power has to be exercised according to rules of reason and justice, not according to private opinion ; according to law, and not according to humour. The exercise of discretionary power cannot be arbitrary, vague and fanciful it has to be legal and regular.
38. We, therefore, answer the reference by saying that despite closure of the consolidation operation which would be result of the notification Under Section 41 of the Act, power Under Section 37 would be available whether in a particular case the same would be exercised shall have to be decided by the Consolidation Commissioner depending upon the facts and circumstances of that case.
G.B. PATTNAIK, J.
I agree.
K.C. JAGADEB ROY, J.
39. The question before this Full Bench is whether the power conferred by Section 37 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter called 'the Act') will be available for exercise after the notification has been issued Under Section 41 (1) of the Act to the effect that the consolidation operation have been closed in the unit and then the village or villages forming part of the unit have ceased to be under the consolidation operation. This is a matter which has a very wide effect on almost everyone in the State because the areas throught the State have been subjected to the consolidation operation except few non-consolidable areas and reply to the question required deep consideration. After going through the views given by my Lord the Chief Justice, I agree with the analysis of the case, but could not accept his Lordship's ultimate finding that despite closure of consolidation operation which is the result of the operation Under Section 41 of the Act, the power Under Section 37 would still be available to be exercised in particular cases as may be decided by the Commissioner of Consolidation depending on the facts and circumstances of those cases.
40. In essence what my Lord expressed in his concluding part of the judgment was that the power of the Consolidation Commissioner Under Section 37 of the Act can be exercised by him in respect of any case which was earlier subjected to consolidation operation though it is indicated by his Lordship that such a power should be exercised within a reasonable time. In my opinion if this power shall be allowed to continue with the Commissioner, after conclusion of the consolidation operation under the Act, nothing shall remain settled and can be re-opened again if the Commissioner so desires. It would be contrary to settled principles of jurisprudence that a dispute shall come to an end at a particular time and shall not be agitated as and when a party desires and that is why the law of limitation has been enacted. I need to add some paragraphs in support of my contention.
41. This Act is intended to achieve a very limited purpose, namely, consolidating agricultural holdings in the State. It is certainly not a stature dealing with the land tenure of the State, nor the authorities under this Act are regular Courts of law, but they are allowed to function under the provisions of the Act so that without going to the main stream of judiciary, namely the Civil Courts in the event any matter arises relating to consolidation of holdings it can be decided by these authorities functioning under the provisions of this Act. In the process of making consolidation, blocks of land to be allotted to the land- holders which are called 'Chakas'. It may be necessary to find out who are the persons to be entitled to such tenures by making 'Chakas' the land-holders lose their right in respect of their existing plots which are generally scattered and acquire title in consolidated 'Chakas' that is given to them. For the limited purpose of this, any of the authorities under this Act has been vested with certain rights to decide a lis. It, therefore, goes without saying that once there is preparation and publication of the final map and records-of-rights and bringing final consolidation scheme into force, there is nothing left for such authorities under the Act to function thereafter and the Civil Court then conies into operation. The Act contains altogether six Chapters. The First Chapter deals with the extent and commencement of the Act and definition of different words found in the statute as per Sections 1 and 2 respectively, Chapter-H deals with the preparation of maps and land registers Chapter-III deals with preparation of consolidation scheme, Chapter-IV deals with enforcement of the scheme, Chapter-V deals with prevention of fragmentation and the last one deals with miscellaneous provisions. The very scheme of the Act does not show that this Act regulates the right of the tenure of land-holders like Land Reforms Act, Orissa Estates Abolition Act, Tenancy Act or Tenants Relief Act. The Act only provides a machinery for preparing land records and maps before deciding to whom the holding would belong after consolidation and provisions have been made for filing objection, appeals and revisions against the objections. The Legislature, therefore, thought in its wisdom that certain authorities under this Act namely the Consolidation Officer, the appellate authority, the Director of Consolidation and the Commissioner to exercise the original, appellate and revisional jurisdictions. The powers are taken away from regular Courts to determine such matters relating to rights of the parties in the area under the consolidation operation because of the possibility of conflicting orders which cannot be avoided. Hence Sections 4 and 51 are incorporated into the statute ousting the jurisdiction of the Civil Court and Revenue Courts from deciding the existing suits and proceedings in respect of the land falling within the area of consolidation as welt as creating a bar against entertaining any suit or proceedings in respect of the matters which can be substantially decided by the consolidation authority.
42. Section 51 of the Act is very categorical in stating that the power and jurisdiction of the Civil Court only relates to suits and proceedings in respect of matters which an officer or authority empowered under this Act is competent to decide and this prohibition is operative only during the consolidation operation. Section 51 of the Act reads thus :
"51. Bar of jurisdiction of Civil Courts-
Notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in Clause (3) of Section 4 and Sub-section (1) of Section 7 :
(1) all questions relating to right, title, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction of Revenue Courts or authorities under any local law for the time being in force, shall be decided under the provisions of this Act by the appropriate authority during the consolidation operation ; and (2) no Civil Court shall entertain any suit or proceedings in respect of any matter which an officer or authority empowered under this Act is competent to decide."
(underlining is made for emphasis) Under the scheme of the Act as already stated, the objections filed by the persons Under Section 9 of .the Act are to be decided by the Asst. Consolidation Officer Under Section 10 or by the Consolidation Officer Under Section 11 of the Act. Any party aggrieved by such objection has a right to appeal Under Section 12 of the Act. The appeal under Sac. 12 which is to be filed within 30 days from the date of the impugned order. Section 21 under Chapter-Ill deals with preparation of consolidation scheme which requires the Director of Consolidation to confirm the provisional consolidation scheme after disposal of appeals and objections relating to unit that such modification is necessary to effect proper consolidation, it is only then that as soon as after confirmity of the provisional consolidation scheme, the Consolidation Officer shall cause to prepare the map of different village under the consolidation area and the record-of-lights prepared on the basis of consolidation scheme so confirmed. Such map and R.O.R. shall contain such particulars as required under the Survey and Settlement Act, with such modification as may be prescribed and also showing the rent and cess determined under Sub-sec: (3) of Section 7. This is the last section in Chapter II of the Act. Chapter-IV deals with the enforcement of the scheme. The revisionsl power is conferred on the Consolidation Commissioner Under Section 36 of the Act. This power of revision is only limited to revise the orders of the Director of Consolidation and is entertainable if an application is made within 90 days from the date of decision. These are the in-built provisions into the Act which give sufficient opportunity to an objector to make an objection before the Assistant Consolidation Officer and the Consolidation Officer which are to be disposed of Under Sections 10 and 11 of the Act against which decisions appeal and revision lies Under Sections 12 and 36 of the Act. As stated in the counter filed by the State, closure of the scheme is notified under Sec, 41 of the Act after the R.O.R. is finally published Under Section 22 of the Act. That must be the end to the litigation. Under these 3 forums provided for entertaining the objection of the petitioner namely, before. the Asst Consolidation Officer, Consolidation Officer Under Section 10 and Section 11, an appeal before the Director of Consolidation Under Section 12 and a revision before the Commissioner of Consolidation Under Section 36 of the Act, the right of a party is fully protected.
43 Section 37 of the Act is a very special provision. The Consolidation Commissioner has been given a suo moto power to call for and examine any records of any case decided by any authority for the purpose of satisfying himself as to the regularity of the proceeding or as to the correctness, legality or propriety of any order passed by such authority in the case or proceeding and may pass such orders as he thinks fit. Sub-section (2) of Section 37 states that this power Under Section 37 (1) can also be exercised by the Director of Consolidation in respect of an authority subordinate to him. The purpose of Section 37 is that as the top person in the hierarchy, the Consolidation Commissioner should be satisfied that the consolidation operation is conducted lawfully and in accordance with the provisions of the Act. The whole purpose is that the consolidation operation is conducted lawfully. When the consolidation operation is conculded and a notification is made in that regard, the" exercise of such power becomes unnecessary and thus excluded. It is only in respect of those matters excepted Under Section 41 of the Act, the Legislature had vested that power of superintendence over the action of the subordinate authorities which may be exercised by tile Consolidation Commissioner or the Director of Consolidation, as the case may be, and they are the cases covered under Sub-section (2) of Section 41 of the Act, which states that the consolidation operation shall not be deemed to have been closed in respect of a case or proceeding pending under the provisions of the Act on the date of issue of notification under Sub-section (1) as well as matters under the proviso to Sub-section (1) of Section 41 which says that this notification of closure of proceeding would not affect the operation of the provisions contained in Chapter-IV. Therefore, the power Under Section 37 can be exercised by the authorities notwithstanding the notification Under Section 41 (1) in resoect of the mattery covered under Chapter-IV dealing with the enforcement of the scheme, namely, with entering into possession by the land-owner on the lands allotted to him (Section 23), compensation for houses, structures, trees, wells etc. (Section 24), delivery of possession (Section 25), compensation for standing crops (Section 26), recovery of compensation (Section 27), reduction of rent and cess on account of contribution of land for public purpose (Section 28), amount to be paid for land contributed for public purposes and allotted to State Government (Section 30). Consequences ensue on land-owner entering into possession (Section 3D. Cost of consolidation operation (Section 32) and under Sub-section (2) of Section 41. The authorities Under Section 37 continued in respect of pending proceedings.
44. Pending proceedinq is a concept which requires a definite meaning. The word 'pending' would ordinarily mean that the matter is not concluded and the Court which has cognizance of it can make an order on the matter in issue. The test is whether any proceedings can be taken in the cause before the Court of Tribunal where it is said to be pending. The answer is that until the case is concluded it is pending. In this connection reference is made to AIR 1971 SC 1120 : (Lt. Col. S. K. Kashyap and Anr. v. State of Rajasthan) in which the Court held thus :
"xx xx The word 'pending' will ordinarily mean that that the matter is not concluded and the Court which has cognizance of it can make an order on the matter in issue. The test is whether any proceedings can be taken in the cause before the Court of Tribunal where it is said to be pending. The answer is that until the case is concluded it is pending, xx"
From this, it follows that unless the case is already on record before any tribunal or Court, where the action can be taken or deciding the proceeding, it cannot be said that the case is pending. In an earlier case decided by the Hon'ble Supreme Court reported in AIR 1957 SC 603, a similar view has been taken. According to this decision, a case is said to be pending in the Court of justice when a proceeding can be taken in it. This is the test.
Now few questions arise at this stage as to what happens if an order has been passed and the party has not preferred any appeal within 90 days or a revision and within 90 days when the notification has come. Will he not be allowed to proceed with the case before the Director of Consolidation with a limitation petition? What happens if he has already filed before the dare of notification a revision before the Commissioner of Consolidation with a limitation petition. The answer is simple. In the later case, it is pending, a petition though was not filed in time, limitation petition is pending in the Court where the order can be passed by the Commissioner of Consolidation entertaining the revision. In such a case it is a pending case, in other case where a revision has not been filed within 90 days and the case which is likely to be tiled before the revisional authority with the limitation petition; it cannot be said to be a case pending. Because by that date there was no case pending. The question then arises, just because of this notification under Sec, 41(1) of the Act, would a person lose his right of revision, the answer is in the affirmative. Because a party can lose his right by laches. If a person advancing money on a promissory note, does not approach the Court within the period of limitation, i.e. within 3 years from the date of the Promissory Note, he is to lose his right to recover the money. There can be no law to suggest that just because a party is negligent in not approaching the Court in time, he would be allowed to agitate his grievance before the revisional authority Under Section 36 as of right by extending the meaning of word 'pending' so as to include an anticipated petition. If we may allow that meaning to the expression 'pending', since there is no bar for making a limitation petition alter lapse of any period, a person making an application after 10 years with a limitation petition can claim that his case is a pending one and therefore, the Commissioner of Consolidation can exercise his powers Under Section 37 of the Act. If the Commissioner exercises his rights in such cases then the result will be disastrous, far-reaching and undesirable as by that time Civil Court has assumed jurisdiction to deal with the matter subject to the questions of res judicata and may result in conflicting orders leading to undesirable results. What consolidation authorities have decided were originally within the scope and jurisdiction of the Civil Court. The power that was exercised by the authorities under the Act now revives in the Civil Court under the Orissa Survey and Settlement Act when proceedings have been taken under the said Act and pattas are finally distributed, correction of such patta can be made and record-of-rights can be challenged in a suit before the Munsif. As per Section 22(4) of the Act, a map and R.O.R. that contains the particulars are subject to modification and alteration pursuant to the orders passed Under Sections 15 and 36 of the Act. There is no doubt that anybody can challenge any entry in R.O.R. in a Civil Court. True since during the consolidation proceeding some decisions might have been taken by the authority under the Act relating to interest, title and possession of the parties, such a decision lawfully taken, obviously would work out as res judicata and the Civil Court cannot ignore such finding and on the basis of such finding shall decide the case while granting relief to him. The Civil Court can, however, declare a decision arrived at by the Consolidation authorities a nullity in the eye of law if it had no jurisdiction to decide or the decision suffered from other grounds which entails the decision to be a nullity in the eye of law. In the case of (Magulu Jal v. Bhagan Rai) : AIR 1975 Ori. 219, this Court held thus :
"xx xx Even if jurisdiction is so excluded. Civil Courts have jurisdiction to examine the cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. Civil Court would interfere if it finds the order of the special tribunal is unfair, capricious or arbitrary."
The parties should be allowed full opportunities and even if the order is passed by a competent authority under the Act, it is open to the Civil Court to declare the same to be invalid if it was passed in violation of principles of natural justice. So what the revisional authority would have done under v. 36 and the Commissioner/Director of Consolidation would have done Under Section 37, can be done by the Civil Court in this regard. Every wrong has a remedy. The principle of Ubi remedium ibi jus meaning thereby that every wrong has a remedy will not be frustrated.
45. The word 'pending' is also interpreted very clearly in the case of (Muhammad Kazim All and Anr. v. Ramesh Chandra Sit) AIR 1947 Cal. 270 at page 271-72 in which the Court held that a mort- gage suit remains pending, even after the preliminary and final decrees have been passed and sale held in execution of the final decree, as long as an application for a personal decree can legally be made. The reopening of the mortgage decree involves the opening of the preliminary as well as the final decree and the mere fact that relief sought related primarily to the setting aside of the sale of the mortgaged property is not very material. Moreover, the mere fact that no personal decree can be passed unless an application be made for that purpose will not be sufficient to make the application a separate proceeding such as is contemplated in Section 2(22), Bengal Money Lenders Act, nor would that fact for the present purpose remove from the category of 'pending suit'. It was then simple to say as long as there is possibility of making an application for personal decree, a case is still to be treated pending notwithstanding final or preliminary decree passed on sale. No case is cited before us that in anticipation of a proceeding in another forum the case decided be treated as a case pending on the date of notification.
It is corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference on the ground that the legislature intended something which it omitted to express, In the words o1 Lord Mersy in the case of (Thumpson v. Goold & Co.) (1910) AC 409, at page 420, it is stated thus :
"It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.'"
The power Under Section 37 to call for the records is not conferred on the Commissioner of Consolidation or the Director of Consolidation to be exercised at any time as they choose unlike the powers conferred on the Board of Revenue under Sec, 59(2) of the Land Reforms Act which reads as follows :
"59(2). The Board of Revenue may at any time on being moved in that behalf by the Collector of a district in an appeal under any provision of this Act filed within the prescribed period revise such order."
Purposefully this expression at any time is absent in Section 37 of the Act and it is not for no reason. This omission is obviously with a definite reason and the reason \s this. Under the Land Reforms Act a ceiling is fixed over the land and in course of time there may be a case where a person acquires more land and at a particular point of time holds more than the ceiling area. Therefore, there is the need of an authority to exercise power under that Act to stop acquisition of excess land over the ceiling limit and to take away the excess land by passing a lawful order. Since that would be continuing feature under the Land Reforms Act, the Legislature purposefully added these words at any time, but in the case of this Act, since it deals with a time bound scheme, on conclusion of the consolidation proceeding, nothing remains to be done except in relation to matters excepted Under Section 41 of the Act. The Legislature has, therefore, not conferred blanket power to the Commissioner of Consolidation or the Director of Consolidation to exercise the power of superintendence Under Section 37 of the Act at any time.
46. The construction of a statute must not so strain the words as to include cases plainly omitted from the natural meaning of the language. Nevertheless, even where the usual meaning of the words fails short of the object of the legislature, a more extended meaning may be attributed to them, if they are fairly susceptible of it. This is a principle of beneficial construction of statute. I do not find any good reason to give any extended meaning to the word 'pending' so as to include the cases likely to be filed except the concluded proceedings and thereby extending the power of the Commissioner Under Section 37 of the Act. Artificiality and anomaly to be avoided in the matter of construction and a construction must be adopted which will facilitate the smooth working of the Scheme of legislation established by the Act.
47. In the present case, the omission of the words at any time has, therefore more significance that on closure of the proceeding, the Commissioner who a functionary under the statute except the mailers saved Under Section 41 of the Act ceases, to exercise the jurisdiction under v. 37.- The primary purpose of interpretation or construction of a statute is to ascertain the intention of the Legislature. Since language is the medium through which the legislature manifests its intention, the question of construing or interpreting a statute will arise only when the language used by the legislature does not yield a clear and unequivocal intetion, but is obscure. ambiguous, uncertain, clouded and susceptible of more than one meaning.-, if the words employed are clear the Courts must accept them and must give full effect to them regardless of the consequences referane can be made to A.I.R. 1984 Bom. 131 in this regard.
The apex Court in an earlier decision reported in A.I.R. 1959 SC 459 (Sri Ram Narain v. State of Bombay) stated thus :
"If the language of the enactment is clear and unambiguous it would not be legitimate for the Courts to add any words thereto and evolve therefrom some sense which may be said to carry out the spposed intention of the Legislature. The intention of the Legislature to be gathered only from the words used by it and no such liberties can be taken by the Courts for effectuating a supposed intention of the Legislature."
48. Because of what has been stated in the earlier paragraphs, I am of the view that except for the matters excepted Under Section 41 of the Act, the Commissioner of Consolidation/Director of Consolidation is devoid of any power Under Section 37 of the Act after a notification is made Under Section 41(1) of the Consolidation Act.