RAJ SINGH v. DY DIRECTOR OF CONSOLIDATION SAHARANPUR
1997-03-14
R.H.ZAIDI
body1997
DigiLaw.ai
R. H. ZAIDI, J. By means of this peti tion under Article 226 of the Constitution of India, petitioner prays for a writ order or direction in the nature of certiorari quashing the order dated 20-1-97 passed by respon dent No. 1 Dy. Director of Consolidation, whereby revisions filed by the petitioner under Section 48 of the U. P. Consolidation of Holdings Act, for short the Act, were dismissed. 2. Subject-matters of dispute in the present case is the Khatas No. 24 and 52 of village Chaura district Saharanpur, hereinafter referred to as the land in dis pute. In the basic year, the land in dispute was recorded in the names of Ram Dia, Mahabir & Raj Singh s/o Balbeer and Smt. Mangala Devi. Four sets of objections were filed before the Asstt. Consolidation Of ficer. First objection was filed by Navin Kumar s/o Ram Daya for mutation of his name in place of his father over 1/3 share, second by Mahabeer, who claimed that three sons of Dalbeer Singh i. e. Mahabeer, Raj Singh and Ram Daya have equal shares i. e. 1/3 share each, third objection was filed by Smt. Mangala Devi and Raj Singh, who claimed that Smt. Mangala was entitled to 1/2 share and other 1/2 own by Ram Daya, Mahabir & Raj Singh & fourth objection was filed by Sanjay Singh s/o Mahabeer, who claimed his Bhumidhari rights in plots No. 240 to 243, 280, 25 to 258 of Khata No. 52 measuring 11 Bighas 5 Biswas 19 Biswansi on the basis of the sale- deed dated 22-7-81 executed by Suresh Kumar and Virendra Kumar and sale-deed dated 30-7-81 ex ecuted by Raj Singh in his favour. 3. The objections were contested by the parties, who had also led evidence in support of their cases. The dispute before the Consolidation Officer was thus regard ing the determination of shares of the par ties in the land in dispute and the validity of the sale-deeds, which were basis of the claim of Sanjay Singh. The Consolidation Officer by his order dated 6-9-89 rejected the claims/objections filed by Sanjay Singh holding that the sale- deeds were executed after Notification under Section 4 of the Act without prior permission of the Settlement Officer of Consolidation, they were, there fore, invalid. He has also determined the shares of the parties in the land in dispute. 4.
The Consolidation Officer by his order dated 6-9-89 rejected the claims/objections filed by Sanjay Singh holding that the sale- deeds were executed after Notification under Section 4 of the Act without prior permission of the Settlement Officer of Consolidation, they were, there fore, invalid. He has also determined the shares of the parties in the land in dispute. 4. Aggrieved by the judgment and or ders passed by the Consolidation Officer, three appeals were filed by Sanjay Singh, Raj Singh and Smt. Mangala. The Settle ment Officer of Consolidation by its judg ment and order dated 3-9-94 allowed the appeal filed by Sanjay Singh holding that the sale-deeds relied upon by him were valid. He was thus entitled to his share in the land in dispute on the basis of the same. The shares of the parties were also determined. Challenging the validity of the order passed by Settlement Officer of Consolidation, three revisions were filed, two by Raj Singh and the third by Smt. Mangala. The Dy. Director of Consolidation dismissed all three revisions and upheld the validity of the order passed by Settlement Officer of Con solidation. Challenging the validity of the order passed by Dy. Director of Consolida tion, the present petition has been filed by the petitioner. A caveat on behalf of Sanjay Singh and Mahabir was filed by Sri A. I. Naqvi, advocate. 5. 1 have heard learned counsel for the parties and perused the record. 6. Learned counsel for the petitioner did not challenge the determination of shares of the parties in the land in dispute by the authorities below. He has only chal lenged the validity of the orders passed by the Dy. Director of Consolidation and Set tlement Officer of Consolidation in so far they upheld the validity of the sale-deeds relied upon by Sanjay Singh. It was con tended that the Notification under Section 4 of the Act was published in the Gazette on 22-6-81 and the sale-deeds were executed after the date of Notification without ob taining permission from the Settlement Of ficer of Consolidation. In view of provisions of Section 5 of the Act, the sale-deeds were invalid and were liable to be ignored. 7. On the other hand, learned counsel appearing for contesting respondents sup ported the validity of the orders passed by the authorities below.
In view of provisions of Section 5 of the Act, the sale-deeds were invalid and were liable to be ignored. 7. On the other hand, learned counsel appearing for contesting respondents sup ported the validity of the orders passed by the authorities below. It was contended that the Notification was published in the unit on 12-8-81 i. e. after execution of the sale-deeds therefore, it was not necessary to ob tain the permission of the Settlement Of ficer of Consolidation. 8. I have considered the submissions made by the learned counsel for the parties and also perused the record. 9. The pedigree of the family of the parties, for the purposes of the present case, is relevant, which is reproduced below: Pratap Nanak Bhagwandiedissuless Balmeer Daya Ram Chhattar Surajmal Mahabir Raj Singh Ram Diaya Sanjai Singh (Smt. Mangala) Navin Kumar 10. It is apparent from the record of the case that it was on 22- 7-80 that Smt. Man-gala sold her share in Khata No. 52 to Suresh Kumar & Virendra Kumar and Suresh Kumar and Virendra Kumar have executed a sale-deed transferring their shares in favour of Sanjay Singh respondent No. 4. Another sale- deed was executed by Ram Singh, whereby he has transferred his share in Khata No. 52, except plot Nos. 56, 58 and 60 in favour of Sanjay Singh. Admit tedly, the Notification was published in the official gazette on 22-6-81 and the same was published in the unit i. e. village in question on 12-8-81. The question, which arises for determination before this Court, is as to whether in view of the aforesaid facts, it was necessary for Suresh Kumar & Virendra Kumar to obtain permission from the Set tlement Officer of Consolidation before ex ecution of the sale-deeds in favour of respondent No. 4. Section 4 of the Act provides as under:- "4. Declaration and Notification regarding Consolidation.- (1) (a ). The State Govt.
Section 4 of the Act provides as under:- "4. Declaration and Notification regarding Consolidation.- (1) (a ). The State Govt. may, where it is in opinion that a district or part thereof may be brought under Consolidation operations, made a declaration to the effect in the Gazette, whereupon it shall become lawful for any officer or authority who may be empowered in this behalf by the District Deputy Director of Consolida tion- (i) to enter upon any survey, in connection with rectangulation or otherwise, and to take levels of any land in such area; (ii) to fix pillars in connection with rectan gulation; and (iii) to do all acts necessary to ascertain the suitability of the area for consolidation operations. (b) The Distt. Deputy Director of Con solidation shall cause public notice of the declara tion issued under clause (a) to be given at con venient places in the said district or part thereof. 2 (a) When the State Govt. decides to start Consolidation operations, either in an area covered by a declaration issued under sub-section (1) or in any other, it may issue a notification to this effect. (b) Every such notification shall be publish ed in the official gazette and in each unit in the said area. 11. Term unit used in clause (b) of Section 4 has been defined under sub-sec tion (II-A) of Section 3 as under:- " (1-A) unit means a village or part thereof and where the Director of Consolidation so notices by publication in the official Gazette two or more villages or parts thereof for which a single scheme of Consolidation is to be framed. " 12. Clause (c) of sub-section (1) of Section 5 of the Act is also relevant for the purposes of the present case, which is reproduced below:- "5 (1) (c) : Notwithstanding anything con tained in U. P. Zamindari Abolition and Land Reforms Act, 1952 no tenure-holder, except with the permission in writing of Settlement Officer (Consolidation) previously obtained shall- " (i ). . . . . . . . . . . (ii ). . . . . . . . . . . . . . . . transfer by way of sale, gift or exchange any part of his holding in the Consolida tion area except with the permission in writing of the Settlement Officer (Consolidation ). " 13.
. . . . . . . . . . (ii ). . . . . . . . . . . . . . . . transfer by way of sale, gift or exchange any part of his holding in the Consolida tion area except with the permission in writing of the Settlement Officer (Consolidation ). " 13. From a plain reading of the aforesaid statutory provisions, it is apparent that after publication of the Notification in the official gazette bringing a district or part thereof under Consolidation operation and its public notice on convenient places in the said District or part thereof and its publica tion in each unit in the said area, no tenure-holder is entitled to transfer by way of sale or gift or exchange his holding or part thereof. 14. In the present case, it is no doubt correct that the Notification under Section 4 was published in the official gazette on 22-6-81, but the same was not published in the unit in question till 12-8-81 nor there is any evidence on record to show that any public notice of the said declaration was given at convenient places in the unit in question before 12-8-81. The intention of legislature, which is apparent from the aforesaid provisions is that till the Notifica tion is brought to the notice of the tenure-holder living in the particular unit, the con sequence as enumerated under Section 5 of the Act shall not ensue. In Padam Chand Sharma v. State of U. P, 1992 AWC 1253, a Division Bench of this Court had the oc casion to consider and decide the question regarding date of publication in official gazette. Question was that what was the date of publication of notification ? Whether it is the date on which gazette published or the date on which it is printed or the date on which it is made available to the public, this Court was pleased to rule as under:- "to publish means to declare publicly and to make known to the public. Publication means communication to the public. The object of publi cation of notice fixing date, time and place for hearing of the objections, is to make it known to the objectors so as to enable them to appear before the Hearing Authority and lead evidence in support of their objections.
Publication means communication to the public. The object of publi cation of notice fixing date, time and place for hearing of the objections, is to make it known to the objectors so as to enable them to appear before the Hearing Authority and lead evidence in support of their objections. Publication of the notice in Gazette, as such is not complete till it is printed in the Gazette and the Gazette containing the notice is made available to the public. Date which the Gazette bears or the date on which it is printed cannot thus be said to be the date of the publication. A Division Bench of this Court in the case of U. S. Awasthi v. Union of India, 1975 UPTC 444, while considering the similar question as to when publication of notice in the Gazette is complete has laid down as follows: "the publication of notice in the official Gazette within the meaning of Section 269-E will obviously be publication as contemplated by sub section (1) of Section 269-D namely, that the notification not only must be printed in the Gazette, but the Gazette containing the notifica tion must also be availed to the public within the statutory period. " 15. The ratio of the aforesaid decision is fully applicable in the present case, there fore, in my opinion, till 12-8-81 when the Notification was published in the unit, the provisions of Section 5 of the Act will have no application. Both the sale-deeds in ques tion were executed in favour of respondent No. 4 before 12-8- 81, therefore, the authorities below did not commit any error of law or jurisdiction in upholding the validity of the said sale- deeds. 16. Apart from what has been stated above, the petitioner himself executed sale-deed dated 30-7-81 in favour of respondent No. 4, after receiving valuable considera tion, the execution of which has been proved in accordance with law. The authorities below have recorded concurrent finding to that effect. The petitioner is thus estopped from challenging the validity of the said sale- deeds. He has also got no locus standi to file the present petition and the writ peti tion filed by him is legally not maintainable.
The authorities below have recorded concurrent finding to that effect. The petitioner is thus estopped from challenging the validity of the said sale- deeds. He has also got no locus standi to file the present petition and the writ peti tion filed by him is legally not maintainable. It may also be noted that Suresh Kumar and Virendra Kumar which have executed the other sale-deed in favour of respondent No. 4 on 30-7-81, did not challenge the validity of the sale-deed on any ground. 17. In view of the aforesaid discussion, the writ petition has got no merit. The same fails and is dismissed in limine. Petition dismissed. .