Baij Nath v. Deputy Director of Consolidation, Allahabad
1983-09-05
K.P.SINGH
body1983
DigiLaw.ai
ORDER K.P. Singh, J. - By means of this writ petition the petitioner has prayed for quashing the orders passed by the appellate authority and the revisional authority contained in Annexures `1', `2' and `3'. 2. Brief facts giving rise to the present writ petition are that Smt. Bhagani was a chak-holder of chak No. 86 which consisted of two chaks. She executed a sale deed dated 15-6-1971 in favour of several persons whereby her entire, chak was sold. On the basis of the aforesaid sale deed the transferees of Smt. Bhagani got their names mutated over her land. Opposite party No. 4 Jiudhan is one of the transferees of Smt. Bhagani. The petitioner purchased the share of opposite party No. 4 in the present writ petition and got his name mutated over the area purchased. 3. One of the purchasers from Smt. Bhagani named Jamuna Prasad executed sale deed in favour of Prabhu Nath and others, who applied for mutation of their names under S. 12 of U.P. C. H. Act. In that connection a reference under S. 48 (3) of the Act has been made to opposite party No. 1 by the Settlement Officer (Consolidation) through his order dated 25-3-1976 (Annexure `1'). The revisional authority through its order dated 21-1-1977 has accepted the reference made by the Settlement Officer (C). 4. The perusal of the aforesaid order of the revisional authority would indicate that the order affects the interest of the present petitioner. The present petitioner applied for setting aside the order dated 21-1-1977 on the ground that it was passed ex parte, but the revisional authority rejected the prayer of the petitioner on the ground that the order dated 21-1-1977 was correct, though it has arrived at the conclusion that the aforesaid order was ex parte against the petitioner. Aggrieved by the order of the revisional authority the petitioner has approached this Court under Article 226 of the Constitution. 5. The learned counsel for the petitioner has contended before me that the order in favour of the petitioner had become final and no appeal was preferred against the order mutating the name of the petitioner, yet his interest has been affected by the impugned orders which are without jurisdiction. 6.
5. The learned counsel for the petitioner has contended before me that the order in favour of the petitioner had become final and no appeal was preferred against the order mutating the name of the petitioner, yet his interest has been affected by the impugned orders which are without jurisdiction. 6. The second contention, raised on behalf of the petitioner is that Smt. Bhagani had executed a sale deed in respect of her entire share, hence the appellate authority and the revisional authority have patently erred in observing that the sale deed in favour of the petitioner's predecessor-in- interest, opposite arty No. 4 Jindhan executed by Smt. Bhagani was had in law hence the petitioner did not derive valid title to the land purchased. 7. The learned counsel for the contesting opposite party has submitted in reply that it was incumbent upon Smt. Bhagani to seek permission for the sale executed by her in the year 1971 whereby a part of the chak was sold to the transferor of the present petitioner. He has also submitted that the sale of any part of a chak by a chak-holder needed permission in the year 1971, hence the consolidation authorities in the circumstances of the present case have rightly come to the conclusion that the transfer by Smt. Bhagani in favour of opposite party No. 4 was bad in law. He has cited a large number of rulings in support of his contention that the sale of a part of holding by tenure-holder needed permission of the Settlement Officer (Consolidation) but he has failed to cite any case directly on the point that if a tenure holder sold the entire interest which resulted in division of his chak the provisions of S. 5(c)(ii) of U.P. C. H. Act would be attracted and such sale deed would be bad in law. 8. After hearing the counsel for the parties at great length I think that a short question involved in the present writ petition is as to whether a sale deed executed by tenure-holder in respect of his or her entire interest resulting in division of chaks would be bad in law or not. 9.
8. After hearing the counsel for the parties at great length I think that a short question involved in the present writ petition is as to whether a sale deed executed by tenure-holder in respect of his or her entire interest resulting in division of chaks would be bad in law or not. 9. To appreciate the controversy it is necessary to quote the provisions of S. 5(c)(ii) of the U.P. C. H. Act :- "Upon the publication of the notification under sub-section (2) of S. 4 in the Official Gazette the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification under S. 52 or sub-sec. (1) of S. 6, as the case may be, ensue in the area to which the notification under S. 4(2) relates, namely- (a) the district or part thereof, as the case may be, shall be deemed to be under consolidation operations and the duty of maintaining the record-of-rights and preparing the village map, the field-book and the annual register of each village shall be performed by the District Deputy Director of Consolidation, who shall maintain or prepare them, as the case may in manner prescribed. (b) ............. (c) notwithstanding anything contained in the U.P. Zamindari Abolition and Land Reforms Act, 1950 no tenure-holder, except with the permission in writing of the Settlement Officer, Consolidation, previously obtained shall- (ii) transfer by way of sale, gift or exchange his holding or any part thereof in the consolidation area." 10. In AIR 1974 All 106 Smt. Ram Rati v. Gram Samaj, Jehwa a Full Bench of this Court consisting of five Judges held as below vide para 11 : "This being the position we are clearly of the opinion that in the present case it is the English text which shall prevail over the Hindi version and according to English text the expression "any holding" occurring in Cl. (ii) of S. 5(1)(c) of the Act does not include the "whole holding so that it is not necessary to obtain the permission of the Settlement Officer (Consolidation) for the transfer of the holding as a whole." 11. The submission of the learned counsel for the contesting opposite party to the effect that the sale of any holding needed permission of the Settlement Officer (Consolidation) under S. 5(c) sub-cl.
The submission of the learned counsel for the contesting opposite party to the effect that the sale of any holding needed permission of the Settlement Officer (Consolidation) under S. 5(c) sub-cl. (ii) of the Act in the year 1971 is not acceptable to me. No doubt after the amendment of 1974 the permission for sale in respect of entire holding is also necessary in view of the amendment made in the aforesaid section: but in the year 1971 it was not necessary according to the decided cases of this Court. 12. On the question posed and involved in this writ petition there is no direct authority. 13. The bare reading of S. 5(c) sub-Cl. (ii) of U.P. C. H. Act does not put any bar upon a tenure-holder to execute sale deed in respect of his entire holding in favour of several persons which might result in division of the chak held by the transferor, though R. 16-B of U.P. C. H. Rules imposes a bar upon the Settlement Officer (C) in the following words : "The Settlement Officer, Consolidation, shall grant the permission referred to in S. 5(c) unless for reasons to be recorded in writing, he is satisfied that the proposed transfer is likely to affect adversely the scheme of consolidation." 14. In the present case when the (ii) transfer by way of sale, gift, or provisions of S. 5(c) of the Act were not at all attracted to the sale deed executed by Smt. Bhagani, no question of applicability of R. 16-B arises. 15. In 1981 All LJ 1239 Banwari Lal v. Assistant Director of Consolidation, U.P. Lucknow a learned single Judge has expressed himself vide para 10 as below:- "It may be mentioned that according to the petitioner himself he had only aforesaid four plots in his holding and he had only half share in the said plots. If half share in the entire four plots was to be transferred by him no permission was required of the Settlement Officer (Consolidation) in accordance with the aforesaid provision which then existed. Permission was only required to be obtained if he wanted to transfer only his share in one or more of those plots. Therefore, the intention in obtaining the permission was implicit.
Permission was only required to be obtained if he wanted to transfer only his share in one or more of those plots. Therefore, the intention in obtaining the permission was implicit. By grant of permission to make transfer of half share in four plots in question, the bar in making transfer by way of sale, gift or exchange of any part of his holding in the consolidation area stood removed and the petitioner, therefore, could validly make transfer of his share in any part of his holding i.e. he could transfer his share in any one or more of the aforesaid plots of his-holding." 16. From the above quotation it can be inferred that if a tenure-holder sells his entire holding, no permission was necessary and that he could transfer his share in any one or more of the aforesaid plots of his holding. 17. To me it appears that if a tenure- holder executes a sale deed in respect of his entire holding or his entire share, which may result in division of the holding is not prohibited by any provisions of the Act, but I doubt that a tenure-holder can execute sale deeds in respect of his entire holding or his share whereby division of the holding has necessitated would be good in law. When there are more than one transaction, the transactions would be in respect of a part of the holding and the provisions of S. 5(1)(c)(ii) of the Act would be attracted. In the present case since the transaction executed by Smt. Bhagani is one in favour of different persons in respect of her entire holding I think that the revisional authority has patently erred in characterising the sale need executed by opposite party No. 3 in favour of opposite party No. 4 as bad in law and thereby negativing the claim of the petitioners in the area purchased. To my mind the impugned judgment of the revisional authority dated 21-1-1977 suffers from patent error of law and the revisional authority has patently erred in rejecting the application moved by the petitioner on 8-2-1977. In the ends of justice the order passed by the revisional authority deserves to be quashed and it is necessary to direct the revisional authority to decide the claim of the petitioner in the light of the observations made above. 18.
In the ends of justice the order passed by the revisional authority deserves to be quashed and it is necessary to direct the revisional authority to decide the claim of the petitioner in the light of the observations made above. 18. Since no direct ruling has been cited by either counsel on the point involved, I do not think it necessary to mention and examine them in greater detail. 19. In the result, the writ petition succeeds and the impugned judgments of the revisional authority are hereby quashed and the revisional authority is directed to reconsider the claim of the petitioner in the light of the observations made above. Parties are directed to bear their own costs.