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Dilli And Others v. The Dy. Director Of Consolidation And Others
Court Opinion Summary — Mootham, C.J.
Factual and Procedural Background
Proceedings under the Consolidation of Holdings Act, 1953 were ongoing in the village where the parties reside. The Assistant Consolidation Officer prepared the statement of plots and tenure-holders under Section 11 of the Act; in that statement the appellants were recorded as sirdars of plot No. 9212 while respondents Nos. 4 and 5 were recorded as trespassers on that plot. The respondents filed an objection under Section 12(1) seeking to be recorded as sirdars and to have the appellants' names expunged. The Consolidation Officer dismissed that objection on 20 December 1956.
The respondents then appealed under Rule 34(3) of the Uttar Pradesh Consolidation of Holdings Rules before the Settlement Officer. The Settlement Officer held that the respondents had acquired the status of sirdars and, by an order dated 28 May 1957, allowed the appeal and set aside the order of the Consolidation Officer. The appellants' revision application to the Deputy Director, Consolidation was dismissed on 26 November 1957. The appellants filed a petition under Article 226 of the Constitution which was dismissed by the order that gave rise to the present appeal.
The principal question before the Court was the validity of Rule 34(3) of the Uttar Pradesh Consolidation of Holdings Rules (specifically whether an appeal from an order of a Consolidation Officer under Section 12(2) could be provided by rule made by the State Government).
Legal Issues Presented
- Whether Rule 34(3), which provides a right of appeal from an order of the Consolidation Officer to the Settlement Officer, is intra vires the State Government's power to make rules under Section 54 of the Consolidation of Holdings Act, 1953 (i.e., whether such a rule is "for the purposes of carrying into effect the provisions of this Act").
- How the phrase in Section 12(3) — that the decision of the Consolidation Officer shall be final "except as otherwise provided by or under this Act" — is to be interpreted, in particular whether "by or under this Act" includes rules made under the Act by the State Government.
- Whether the Settlement Officer could decide a question of title on appeal (a submission raised but not pressed on the grounds of the petition and therefore not considered by the Court on the merits).
Arguments of the Parties
Appellant's Arguments
- There is no provision in the Consolidation of Holdings Act, 1953 (express or implied) that permits an appeal from an order of a Consolidation Officer made under Section 12(2); therefore a right of appeal cannot be created by rule.
- The State Government's power to make rules under Section 54 is limited to rules "for the purposes of carrying into effect the provisions of this Act" and does not extend to creating new substantive rights such as an appeal where the Act itself has not provided for one.
- Where the legislature intended to provide for appeals it did so expressly in the Act (examples cited: subsection (4) of Section 8; subsection (2) of Section 17; and subsection (2) of Section 21), implying that the absence of such a provision for Section 12 indicates no appeal was intended.
- The appellants relied on authorities (including Attorney General v. Sillem and A.S. Nagappa Chettiar v. Annapoorani Achi) to support the proposition that rule-making power does not extend to creating new rights of appeal.
Respondents' Arguments
The opinion does not contain a detailed account of the respondents' legal arguments beyond the factual contention that they ought to be recorded as sirdars and the Settlement Officer's conclusion that they had acquired that status.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bishnu Charan Mukherjee v. State of Orissa, A.I.R. 1952 Orissa 11 | Held that the phrase "under the Act" can, depending on context, include statutory rules framed in accordance with the Act. | The Court relied on this decision to support the interpretation that the phrase "by or under this Act" can reasonably be read to mean "by the Act or under rules made under the Act," thereby permitting Rule 34(3) to be a valid rule made under the Act. |
| Attorney General v. Sillem, 10 House of Lords Case 704 | Principle that creation of a new right of appeal generally requires legislative authority and cannot be effected merely by subordinate rule-making; courts or inferior rule-making bodies cannot create new rights of appeal without express legislative power. | The Court considered this authority relied upon by the appellants but found it distinguishable on its facts; the principle was acknowledged but the Court held that it did not control the present case because of the statutory language ("by or under this Act") and context permitting rules under the Act to include appeals. |
| A.S. Nagappa Chettiar v. Annapoorani Achi, 1941 A.I.R. Mad. 235 | Held that a provincial government rule conferring a right of appeal was ultra vires because it added a right of appeal which was neither a purpose of the Act nor necessary for removing a difficulty in giving effect to the Act. | The Court distinguished this case on the ground that the statute there lacked a provision akin to Section 12(4) (referred to in the opinion) and thus did not support making an appeal by rule; therefore the Madras Full Bench decision did not determine the legality of Rule 34(3) in the present Act's context. |
Court's Reasoning and Analysis
The Court began with the language of Section 12 of the Consolidation of Holdings Act, 1953. Section 12(3) provides that "The decision of the Consolidation Officer shall, except as otherwise provided by or under this Act, be final." The pivotal interpretive question was the meaning of the phrase "by or under this Act."
The appellants urged a narrow interpretation — that any "otherwise provided" must appear expressly or by implication within the Act itself. The Court rejected that narrow construction as too restrictive. It reasoned that the legislature used the two prepositions "by" and "under" and that both should be given effect where possible.
The Court relied on the principle from Bishnu Charan Mukherjee that "under the Act" can, in an appropriate context, include statutory rules framed pursuant to the Act. On this basis the Court concluded that the proper reading of "by or under this Act" is "by the Act or under rules made under the Act." Under that interpretation, a rule made by the State Government under Section 54 of the Act providing for an appeal from the order of a Consolidation Officer is a rule "for the purpose of carrying into effect the provisions of this Act."
The Court considered the authorities relied on by the appellants (Attorney General v. Sillem and A.S. Nagappa Chettiar v. Annapoorani Achi) but found both distinguishable on their facts. In particular, the Madras Full Bench decision was distinguished because, in that case, there was apparently no statutory provision comparable to the enabling context present in the Consolidation of Holdings Act.
The Court further declined to consider the submission that the Settlement Officer could not decide a question of title because that contention was not part of the grounds on which relief was sought in the petition before the Court, nor was it included in the memorandum of appeal; accordingly the Court did not consider it.
As to the contention that the Settlement Officer failed to take into account documents filed by the appellants in earlier proceedings under Section 8(3), the Court found no force in the argument. It observed that proceedings under Section 12 are distinct from those under Section 8 and that the appellate order showed the Settlement Officer had before him the earlier order under Section 8(3), which had become final because it was not challenged on appeal.
Holding and Implications
Holding. The appeal was dismissed. The Court held that Rule 34(3) is a valid rule made under the Act and that a rule providing for an appeal from the order of a Consolidation Officer under Section 12(2) is within the State Government's rule-making powers under Section 54 when read with Section 12(3)'s phrase "except as otherwise provided by or under this Act."
Implications.
- Direct effect on the parties: The appellants' challenge to the appellate route under Rule 34(3) failed, and the Settlement Officer's order (which had allowed the respondents' appeal and set aside the Consolidation Officer's order) stands. The appeal by the appellants was dismissed with costs.
- Interpretive consequence: The Court interpreted the phrase "by or under this Act" to include rules made under the Act and thereby validated Rule 34(3) as a rule "for the purposes of carrying into effect the provisions of this Act." The opinion distinguished prior authorities relied upon by the appellants on their particular facts.
- The Court did not consider and did not decide the separate contention (not raised properly in the petition) that the Settlement Officer ought not to decide questions of title which should have been referred to arbitration.
Appeal dismissed with costs (per the judgment).
Mootham, C.J:— In this appeal, which is from an order of Mr. Justice Jagdish Sahai dated the 2nd April, 1958, the principal question which arises is the validity of R. 34(3) of the Uttar Pradesh Consolidation of Holdings Rules.
2. Proceeding under the Consolidation of Holdings Act, 1953, are in progress in the village in which the appellants and respondents Nos. 4 and 5 reside, The Assistant Consolidation Officer prepared a statement of plots and tenure-holders pursuant to Sec. 11 of the Act, and in that statement the appellants were recorded as sirdars of plot No. 9212 and these respondents as trespassers thereon. The respondents disputed the correctness of this entry and filed an objection under sub-Sec. (1) of Sec. 12 contending that they ought to be recorded as sirdars and the names of the appellants expunged. That objection was dismissed by the Consolidation Officer on the 20th December, 1956. Thereupon the respondents filed an appeal under R. 34(3) of the Rules before the Settlement Officer. That officer held that the respondents had acquired the status of sirdars, and by an order dated the 28th May, 1957, he allowed the appeal and set aside the order of the Consolidation Officer. An application in revision by the present appellants to the Deputy Director, Consolidation, was dismissed on the 26th November, 1957. The appellants then filed a petition in this Court under Art. 226 of the Constitution which was dismissed by the order the subject of the present appeal. The principal argument addressed to us is that no appeal lay from the order of the Consolidation Officer as R. 34(3) is ultra vires the powers of the State Government and is invalid.
3. Sec. 12 of the Act, as it then stood and so far as is material, read thus:—
“12(1). Every person interested in disputing the correctness or nature of an entry in the statement published under Sec. 11 or pointing out any omission therefrom shall within thirty days of the publication of the statement under Sub-Sec. (2) of Sec. 11, file objection, if any on the statement before the Assistant Consolidation Officer in the manner prescribed.
(2) The Assistant Consolidation Officer shall, after hearing the parties, if necessary, on the objections filed under sub-Sec. (1) together with the views of the Land Management Committee submit his report on those objections to the Consolidation Officer who shall, except as provided in sub-sec. (4), dispose of the objections in the manner prescribed.
(3) The decision of the Consolidation Officer shall, except as otherwise provided by or under this Act, be final.”
4. Rule 34 makes provision for the hearing of objections under Sec. 12(1), and sub-R. (3) then provided that
“Any person aggrieved by the order of the Consolidation Officer may file an appeal within 15 days of the order before the Settlement Officer (Consolidation) whose decision, except in cases of arbitration as provided in the Act, shall be final.”
5. This sub-rule has been made by the State Government in purported exercise of its powers under Sec. 54 of the Act, sub-Sec. (1) of this section providing that
“The State Government may make rules for the purposes of earning into effect the provisions of this Act.”
6. Sub-Sec. (2) enumerates the various matters with regard to which, without prejudice to the generality of the power conferred by sub-sec. (1), the State Government may make rules, but it is common ground that the provision of an appeal from an order of the Consolidation Officer made under Sec. 12 of the Act is not one of such matters.
7. There is no doubt that a right of appeal must be founded on some statutory provision, and it is the contention of learned counsel for the appellant that the Consolidation of Holdings Act contains no provision, express or implied, for an appeal from the order of a Consolidation Officer made under Sec. 12(2). Therefore, it is argued, the State Government can make no rule conferring a right of appeal as the State Government's power to make rules is restricted to the making of such rules only as are necessary for the purpose of carrying into effect the provisions of the Act. It is pointed out that where the legislature wanted to make a provision for appeal it has done so in clear terms in the Act itself; for example, in sub-Sec. (4) of Sec. 8 it had provided for an appeal from an order of an Assistant Consolidation Officer made under Sub-Sec. (3) of that section; in sub-Sec. (2) of Sec. 17 it had provided for an appeal against an order of a Consolidation Officer made under sub-Sec. (1) and in Sub-Sec. (2) of Sec. 21 it had made provision for an appeal from an order of a Consolidation Officer made under sub-Sec. (1).
8. The question is whether a rule providing for an appeal from an order of a Consolidation Officer under Sec. 12(2) is a rule for the purpose of carrying into effect the provisions of the Act; for if it is, then it is not in dispute that the rule is valid.
9. How sub-Sec. (3) of Sec. 12 provides that the decision of the Consolidation Officer shall be final “except as otherwise provided by or under this Act.” The Consolidation Officer's order is not necessarily final; it will be final only if provision to the contrary is not made “by or under this Act.” A provision for appeal from the order would, in our opinion, come within the expression “otherwise provided” within the meaning of the sub-section; and the question therefore resolves itself into this: What is meant by the phrase “by or under this Act”? The appellant contends that phrase means ‘expressly or by implication under the Act’; but we think this is too narrow an interpretation. If the phrase were “by the Act” it might legitimately be argued that the provision “otherwise” contemplated by the sub-section would have to be found in the Act itself, so also, but with much less force, it might be argued if the phrase were “under the Act.” The legislature has however used both the prepositions: the phrase is “by or under” the Act, and we must, if possible, so construe the expression that neither word becomes redundant. In Bishnu Charan Mukherjee v. State of Orissa A.I.R 1952 Orissa 11. it was held that the phrase “under the Act” when used in a statute takes its meaning from the context in which it is used, and that in an appropriate context it can mean not merely the provisions of the Act but statutory rules framed in accordance with the provisions of the Act. In our opinion the reasonable interpretation to give to the phrase we are now considering, and that intended by the legislature, is “by the Act or under rules made under the Act.” If this be so, then rule 34(3) is a rule made for the purpose of carrying into effect the provisions of the Act.
10. The appellant has relied on two cases, but both in our opinion are distinguishable. The first of these is The Attorney General v. Sillem 10 House of Lords Case 704.. By Sec 26 of the Queen's Remembrancer's Act, 1859, the Barons of the Court of Exchequer were given authority to make rules with regard to the process, practice and mode of pleading in revenue cases in that Court. By virtue of this section the Barons made rules in which they purported to grant an appeal from a decision of the Court of Exchequer to the Exchequer Chamber and to the House of Lords. The house of Lords held that they could not do so. Lord Westbury, L.C, in the course of his judgment said:
“The creation of a new right of appeal is plainly an act which requires legislative authority: The Court from which the appeal is given, and the Court to which it is given, must both be bound, and that must be the act of some higher power…. In making the orders now in question, the Barons of the Court of Exchequer have assumed that a discretionary power to exercise this legislative authority or not, and thereby to confer or to withhold, this important benefit of new rights of appeal, has been given to them by sec. 26 of the Act of 1859. If the Legislature has done this, it has done a thing which is very irregular, and which antecedently would seem to be very improbable.”
11. The second case is A.S Nagappa Chettiar v. Annapoorani Achi 1941 A.I.R Mad. 235.. In this case a Full Bench of the Madras High Court held that a full conferring a right of appeal made by the Provincial Government under Sec. 28 of the Madras Agriculturists Relief Act was ultra vires. We have not the Act in question before us but it appears from the judgment that the impugned rule was made in purported exercise of powers conferred on the State Government by sub-Secs. (1) and (2)(c) of Sec. 28 of the Act which provided that
“(1) The Provincial Government may make rules for carrying into effect the purposes of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power the Provincial Government may make rules.
(a) ………………………….
(b) ………………………….
(c) for removing any difficulty in giving effect to the provisions of this Act.”
12. The Court held that in making a rule providing for appeal the Provincial Government was not making a rule for carrying into effect the purposes of the Act but was adding something to it. The Court was of opinion that as the provision of an appeal was neither a purpose of the Act nor necessary for removing a difficulty, the impugned rule was necessarily invalid. The case differs from that before us as there appears to have been no section (such as Sec. 12(4) of the Consolidation of Holdings Act) which could be construed as enabling the Provincial Government to make a rule providing for an appeal.
13. It is then contended that the Settlement Officer could not on appeal decide a question of title which he should have referred to arbitration. This submission found no place in the grounds upon which the relief sought in the petition was founded, nor is it included in the grounds stated in the memorandum of appeal. We do not therefore propose to consider it.
14. The last submission is that in deciding the appeal the Settlement Officer should have taken into consideration the documents which had been filed by the appellants in earlier proceedings between the parties which had taken place under Sec. 8(3) of the Act.
15. We do not see any force in this contention. Apart from the fact that proceedings under Sec. 12 are quite distinct from those under Sec. 8 it is clear from the appellate order that the Settlement Officer nad before him the order of the Assistant Consolidation Officer in the proceedings under Sec. 8(3), and that order (which was in the respondent's favour) not having been challenged on appeal had become final.
16. In our opinion this appeal fails. It is accordingly dismissed with costs.
17. Appeal dismissed.
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