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2007 DIGILAW 1569 (ALL)

BAIJ NATH v. DEPUTY DIRECTOR OF CONSOLIDATION

2007-05-22

JANARDAN SAHAI

body2007
JUDGMENT Hon’ble Janardan Sahai, J.—By a sale-deed dated 18.12.1969 Shiv Prasad transferred two chaks to the respondents 4 and 5. The respondents 4 and 5 applied under Section 12 of the U.P. Consolidation of Holdings Act for mutation of their names. By a subsequent sale-deed dated 28.1.1970 Shiv Prasad transferred the same chaks to the petitioner after obtaining permission under Section 5(1)(c)(ii) of the U.P. Consolidation of Holdings Act. On the basis of the sale-deed the petitioner also applied under Section 12 of the U.P. Consolidation of Holdings Act. The Consolidation Officer allowed the application of the petitioner but dismissed that of the respondents 4 and 5. Against the order an appeal was filed by respondents 4 and 5 which was allowed by the Settlement Officer Consolidation and the application of the petitioner for mutation was rejected and that of the respondents 4 and 5 was allowed. A revision was filed by the petitioner against the order which was dismissed by the Dy. Director of Consolidation by his impugned order dated 24.8.1974. 2. I have heard Sri Radhey Shyam Counsel for the petitioner and Sri P.N. Misra holding brief of Sri N.C. Rajvanshi Counsel for the respondents 4 and 5. 3. The sale-deed of the petitioner is a subsequent sale-deed and therefore the sale-deed of the respondents 4 and 5 would prevail. However, it is submitted by Sri Radhey Shyam Counsel for the petitioner that there was no permission obtained under Section 5(1)(c)(ii) of the Act before the sale-deed was executed in favour of respondents 4 and 5 and therefore their sale-deed is not valid and would not be recognised and therefore the sale-deed of the petitioner would prevail. However, it is submitted by Sri Radhey Shyam Counsel for the petitioner that there was no permission obtained under Section 5(1)(c)(ii) of the Act before the sale-deed was executed in favour of respondents 4 and 5 and therefore their sale-deed is not valid and would not be recognised and therefore the sale-deed of the petitioner would prevail. Clause (c) of Section 5(1) was added in the Act by Section 4 of the U.P. Consolidation of Holdings (Amendment) Act, 1958 (U.P. Act XXXVIII of 1958) and reads as under : “(c) Notwithstanding anything contained in the U.P. Zamindari Abolition & Land Reforms Act, 1950, no tenure-holder except with the permission in writing of Settlement Officer Consolidation, previously obtained shall— (i) use his holding or any part thereof for purpose not connected with agriculture, horticulture, animal husbandry including pisciculture and poultry farming, or (ii) transfer by way of sale, gift or exchange his holding or any part thereof in consolidation area : Provided that a tenure-holder may continue to use his holding or any part thereof, for any propose for which it was in use prior to the date specified in the notification issued under sub-section (2) of Section 4.” 4. The Dy. Director has taken the view that the transfer of a chak does not require permission because it is not a transfer of a part of the holding. The question which has arisen in this case is whether the transfer of the two chaks would be a transfer of a part of the holding as there were certain plots in the holding which were not part of the chaks and those plots were not transferred. 5. “Holding” has been defined under Section 3 (4-C) of the Act as under : ‘Holding’ means a parcel or parcels of land held under one tenure by a tenure-holder singly or jointly with other tenure-holders’. 6. The expression came up for interpretation by a Full Bench of this Court in Smt. Asharfunisa Begum v. Dy. Director of Consolidation, 1970 RD 532. It was held by the Full Bench as follows : ‘Holding’ under the Act consists of plot or plots under one tenure and not under several tenures. That being so there might be several Khatas of Bhumidhari, each Khata comprising a single or several plots, but all these Khatas should be deemed to be under one tenure. It was held by the Full Bench as follows : ‘Holding’ under the Act consists of plot or plots under one tenure and not under several tenures. That being so there might be several Khatas of Bhumidhari, each Khata comprising a single or several plots, but all these Khatas should be deemed to be under one tenure. If a farmer has Sirdari Khatas as also Bhumidhari Khatas, the Sirdari Khatas will constitute one tenure, while the Bhumidhari Khatas will constitute a second tenure and the two tenures will be separate and not one tenure.” 7. Chak has been defined under Section 3(1-A) of the Act to mean a parcel of land allotted to a tenure-holder on consolidation. It is to be noticed that while the definition of “Holding” contains as a necessary requirement that the land should be held under one tenure, that requirement is wanting in the definition of chak. Thus a chak may consist of several tenures like Bhumidhari with transferable right, Bhumidhari with non-transferable rights and of asami rights. A holding and a chak are therefore not synonymous. 8. A chak is a creation of the Consolidation of Holdings Act. It is parcel of land allotted to a tenure-holder on consolidation. The requirement of obtaining permission for transfer under Section 5(1)(c)(ii) of the Act as it stood before the amendment made in the year 1974 was in respect of a part of the holding. The purpose of the restriction was considered by a Full Bench of this Court in Smt. Ram Rati and others v. Gram Samaj, Jehwa and others, 1974 RD 163, and it was held therein that the ban under clause (ii) was intended to prevent the fragmentation of holdings and as such, it was placed only on a transfer of a part of the holding. Once the chaks have been allotted the purpose of consolidation is achieved and if the whole chak is transferred there would not be any fragmentation. The consolidation scheme would also not be disturbed. 9. It is to be remembered that the clause we are considering is a restriction on the right of the tenure-holder to transfer his land. A restrictive clause has to be interpreted in the light of the objective which the statute seeks to achieve. The consolidation scheme would also not be disturbed. 9. It is to be remembered that the clause we are considering is a restriction on the right of the tenure-holder to transfer his land. A restrictive clause has to be interpreted in the light of the objective which the statute seeks to achieve. No more restriction than the words of the statute in their plain meaning warrant should be placed on the right of the tenure-holder to transfer his land and if there is a doubt about the scope of the restrictive clause the object the legislature is seeking to achieve by the restriction has to be considered for determining the scope. A chak is constituted under the consolidation scheme after taking into account factors such as compactness, rectangular shapeliness, irrigation facility etc. given in Section 19 of the Act. It is a piece of land equipped with as far as possible all such amenities of chak road, nali etc. to make it a compact unit fit for agriculture. The transfer of the chack would, therefore, not affect the consolidation scheme. An interpretation which places a restriction upon the right of the chak holder to transfer the chak without permission would not subserve any purpose. Moreover the language of Section 5(1)(c)(ii) of the Act places a bar upon the transfer of part of a holding. We have seen that a ‘chak’ is a concept which is not synonymous to that of a ‘holding’ and therefore, the interpretation which Sri Radhey Shyam wants me to give to that section that permission for transfer of a chak would also be required does not appear to fit in with the language of the restriction clause nor with the object that that clause seeks to achieve. 10. Counsel for the respondents relied upon a Full Bench Decision of this Court in Smt. Rajeshwari v. Dy. Director of Consolidation, 1971 RD 130. In that case the vendor had sold the entire chak to the vendees. It was held that the facts of the case were similar to those of Smt. Asharfunisa Begum (supra) and it was held that in the facts and circumstances of the case there was no infringement of Section 5(1)(c)(ii) of the Act. The decision was one on facts. In that case the vendor had sold the entire chak to the vendees. It was held that the facts of the case were similar to those of Smt. Asharfunisa Begum (supra) and it was held that in the facts and circumstances of the case there was no infringement of Section 5(1)(c)(ii) of the Act. The decision was one on facts. However, in view of the discussion above the transfer in the present case being that of a chak no permission under Section 5(1)(c)(ii) of the Act is required as it is not a transfer of a part of a holding. The writ petition lacks merit. It is accordingly dismissed. ————