Bhagwat Prasad v. D. Y. Director of Consolidation — 1985 DIGILAW 1177 (ALL)

JUDGMENT B.L. Yadav, J. - This petition Under Article 226 of the Constitution of India is directed against the order dated 7.8.1975 passed by the Deputy Director of Consolidation in reference u/s 43(3) of the U.P. consolidation of Holdings Act (for shop the Act). 2. The antecedents disclosed in this case are sad affairs. The Petitioner purchased Plot Nos. 1320, 1295, 1350, 1374 and 1321 from one" ham banauur Singh and Smt. Deoki Kumari. Alter the vendors had obtained the Bnumidnari Sanad a registered sale deed was executed. But immediately after the aforesaid sale deed the provisions of U.P. Imposition of Ceiling on Land Holdings Act (for short the Ceiling Act) was enforced, with the result the Petitioner's name could not be mutated over the atoresaid plots, except plot No. 1374. These plots were declared as surplus land of Kam Banadur Singh and Smt. Deoki Kumari tenure holders, the vendors. The Petitioner moved an application for being impleaded as a party in me proceedings u/s 10 of the Ceiling Act alleging that as he has purchased me land be.oie the en. oi cement of the Ceiling Act, hence these plots cannot be deemed to be mat of the vendors nor these plots could be declared surplus, rattier a notice u/s 10(2) of the Ceiling Act must have been served on the Petitioner. But the Petitioners application for impleadment was rejected. Thereafter Petitioner preferred an appeal before the District Judge, which was ailed and the matter was remanded to the Prescribed Authority under the Ceiling Act. In the meanwhile the village where the plots were situated, tame under the provisions of the Act in 1964. The consolidation authorities in view of the earlier decision of the presented Authority under the Ceiling Act, entered the name of the State Government only over plot No. 1320, 1350, 1295, only. But in respect of plot No. 1320 an area of only 10 Dhurs was recorded where -as the actual area of this plot was 3 bighas 12 bis was and 15 biswansis, the whole of which was declared as surplus and the whole of which was purchased by the Petitioner. Plot No. 132 t, no-v ever, was not entered in the name of the State Government even though the Prescribed Authority declared this plot also as surplus land. Plot No. 132 t, no-v ever, was not entered in the name of the State Government even though the Prescribed Authority declared this plot also as surplus land. But alter the remand from the appellate court as stated above, the Prescribed Authority by order dated 27.11.1968 (certified copy of which has been filed as Annexure 1 to the rejoinder affidavit), held that all the plots purchased by the Petitioner were excluded from the holding of the vendors. It was further held that these plots belong to the Petitioner as he has purchased them by the aforesaid registered sale deed. The Parwana to that effect was also ordered to be sent to the consolidation authorities to enter the name of the Petitioner in the revenue papers during the consolidation proceedings. The consolidation authorities has given effect to that Parwana and in C.H. Form 23 the Petitioners' name was entered, but while the proceedings u/s 20 of the Act for allotment of chak were in progress, somehow plot Nos. 1320 and 1321 were omitted from the name of the Petitioner. The Petitioner made an enquiry as to how his name was not entered in proceedings u/s 20 of the Act over these plots. The Petitioner was advised to make an application to that effect and unless overall these plots the name of the State was recorded these plots cannot be recorded in the name of the Petitioner and thereupon a reference purporting to be u/s 48(3) of the Act should be made. The Petitioner moved an application as directed on 13.4.1971. On that application the Settlement Officer (consolidation) initiated proceedings for reference and directed the Consolidation Officer to submit the report who in his turn, directed the Assistant Consolidation Officer to submit the report and ultimately the Consolidator submitted a report. Thereafter the matter remained pending for about three years and as late as on 4.1.1974 the Consolidator asked the Petitioner to make an endorsement on the application. The Petitioner did the same and ultimately a report was submitted for reference. But it was to the effect that the Petitioner should have made an application at the stage of Section 9 of the Act. The matter was referred to the Deputy Director of Consolidation, who dropped the entire proceedings of reference by the impugned order. It is against this order that the present petition has been filed. 3. But it was to the effect that the Petitioner should have made an application at the stage of Section 9 of the Act. The matter was referred to the Deputy Director of Consolidation, who dropped the entire proceedings of reference by the impugned order. It is against this order that the present petition has been filed. 3. Learned Counsel for the Petitioner urged that the plots were purchased by the Petitioner, but by mistake they were entered in the name of the vendors during the continuance of proceedings under the Ceiling Act and thereafter even after the order of the Prescribed Authority that these plots may be entered in the name of the Petitioner, the said order was not carried out by the consolidation authorities and the Petitioner's name could not be entered and the Deputy Director of Consolidation committed error in rejecting the reference It was further urged that it was in any case the mistake of either the ceiling authorities or the consolidation authorities in not giving effect to the registered sale deed in favour of the Petitioner which became final. 4. Learned Counsel appearing for the Respondents on the other hand urged that the Petitioner should have made an application u/s 9 of the Act at the appropriate stage, but he did not do so and his application has correctly been rejected and the sale deed has been obtained in the meanwhile by Smt. Neera Mehrotra, Respondent No. 4 in respect of some area. Hence her sale deed cannot be affected by the result of the present petition. 5. Having heard the learned Counsel for the parties I am of the opinion that the submissions made by the learned Counsel for the Petitioner are rot without force. It is a fact that the Petitioner has obtained a registered sale deed in respect of the plots in dispute but by mistake of the ceiling authorities or the land holders these plots were declared as surplus land of the vendors without imp leading the Petitioner and without serving any notice on him. It is a fact that the Petitioner has obtained a registered sale deed in respect of the plots in dispute but by mistake of the ceiling authorities or the land holders these plots were declared as surplus land of the vendors without imp leading the Petitioner and without serving any notice on him. When the Petitioner learnt about it, he filed an application on which the Prescribed Authority ultimately by order dated 27.11.1968 (a certified copy of which has been filed along with the rejoinder affidavit), held that these plots belong to the Petitioner and the vendors, the land holder need not be entered nor these plots can be declared to be surplus laud and the Parwana was sent to the consolidation authorities to mutate the name of the Petitioner over the plots in dispute. But in spite of that the Petitioner's name was not entered over the plots in dispute in the proceedings u/s 20 of the Act, even though in C.H. Form 23 the Petitioner's name was entered. 6. In Shantanu Kumar Vs. State of U.P. and Others, (1979) AWC 585 it has been he that in proceedings u/s 10(2) read with Rule 8 of the Ceiling Act the notice has to be served on the transferee otherwise the proceedings would be illegal and vitiated. In the instant case without serving any notice on the Petitioner the land obtained by him as vendee was declared surplus. It was not the mistake of the Petitioner rather it was mistake of the ceiling authorities and ultimately the Prescribed Authority had to direct the consolidation authorities by order dated 27th November, 1968 to enter the name of the Petitioner over the plots in dispute and that order was given effect to also in CH Form 23. It is the mistake of the ceiling authorities that the order of the Prescribed Authority was not given effect to when the sale deed was given effect to in the revenue papers. As the Prescribed Authority has already directed the Petitioner's name to be entered in revenue papers during the consolidation proceedings, the consolidation authorities were bound by the same and in case anybody, either the Respondents or the Gaon Sabha or the State was interested, the order dated 27.11.1968 must have been challenged. As the Prescribed Authority has already directed the Petitioner's name to be entered in revenue papers during the consolidation proceedings, the consolidation authorities were bound by the same and in case anybody, either the Respondents or the Gaon Sabha or the State was interested, the order dated 27.11.1968 must have been challenged. But since that was not challenged, that became final and that has to be given effect to in revenue papers and the consolidation authorities, particularly Respondent No. 1 committed error apparent on the face of record in rejecting the reference. 7. There is a Latin Maxim " Actus Curiae Neminem Grava Bit " which obviously means that an act of the Court shall prejudice no man. There is equally another Latin Maxim " Actus Legis Nemini Est Demnosus " which means that an act in law shall prejudice no man. I am accordingly of the view that it was mistake of the consolidation authorities and the ceiling authorities by which the Petitioner has been made to suffer. Even no action was taken on the application moved by the Petitioner and the Deputy Director of Consolidation erred in rejecting the reference holding that the Petitioner should have moved the objection earlier. But as nobody was challenging the rights of the Petitioner, hence it was not obligatory on the part of the Petitioner to have made an application earlier u/s 9 of the Act. Even though the provisional consolidation scheme might have become final, but as the mistake was of the consolidation authorities and of the ceding authorities the Petitioner should not be made to suffer. The procedure prescribed by any statute is with a view to serve the ends of justice and not to create obstacles. In the instant case it appears that the Deputy Director of Consolidation has taken the legal principle to the extreme and regardless of actual sense of justice. Here I am reminded of another Latin Maxim " Apices Juries None Sunt Jura" which means that legal principles must not be carried to their extreme consequences regardless of equity and good conscience. 8. As regards the interest of vendees including Respondent No. 4 etc. suffice is to say that they have obtained the sale deed during the pendency of the proceedings. 8. As regards the interest of vendees including Respondent No. 4 etc. suffice is to say that they have obtained the sale deed during the pendency of the proceedings. Section 52 of the Transfer of Property Act enacts the principle of a maxim " Pendentelite Nihil In no Venture " which means that during the pendency of litigation nothing new should be introduced. In other words it enacts the principle of ' lis pendens '. The Explanation added to Section 52 provides that the pendency of a suit or proceeding shall be deemed to commence from the date of presentation of the plaint or the institution of the proceedings in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained and the said order has been carried out in the revenue papers as well. 9. It would not be-out of place to mention the ratio in Bishop of Winch story v. Paine (1805) 32 ER 1062 to the following effect: Ordinarily, it is true; the decree of the court binds only the parties to the suit. But he, who purchases during the pendency of the suit, is bound by the decree that may be made against the person, from whom he derives title. The litigating parties are exempted from the necessity of taking any notice of a title so acquired. 10. In Bellamy v. Sabine (1857) 44 ER 842, it was held as follows: The language of the court in these cases, as well as in Worsely v. The Earl of Scarborough certainly to the effect that lis pendens is implied notice to the entire world. I confess, I think that is not a perfectly correct mode of stating the doctrine. What ought to be said is, that pendent lite, neither party to the litigation can alienate it e property in dispute so as to affect his opponent. The doctrine is not peculiar to courts of equity. 11. I confess, I think that is not a perfectly correct mode of stating the doctrine. What ought to be said is, that pendent lite, neither party to the litigation can alienate it e property in dispute so as to affect his opponent. The doctrine is not peculiar to courts of equity. 11. In the instant case before the name of the Petitioner could be entered as bhucnidhar being the vendee and before the ceiling proceedings in favour of the Petitioner could come to an end, the sale deed appears to have been obtained by the Respondent which would be illegal on account of being obtained during the pendency of the proceedings and that shall have no effect in the eyes of law. 12. In view of the discussions made above, the sale deed obtained by the Respondents including Respondent No. 4 during the pendency of litigation would be obviously illegal and void and the order passed by the Dy. Director of Consolidation cannot be sustained. 13. In the result, the petition succeeds and is allowed with cost. The order passed by the Deputy Director of Consolidation dated 7.8.1975 is hereby quashed and the Deputy Director of Consolidation is directed to pass an appropriate order directing the name of the Petitioner to be entered over all the plots purchased by him.