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2017 DIGILAW 3040 (ALL)

Surya Narayan v. Deputy Director of Consolidation

2017-12-22

RAJIV JOSHI

body2017
JUDGMENT : Rajiv Joshi, J. This writ petition has been filed challenging the orders passed by all the three consolidation authorities and for direction to the respondents not to dispossess the petitioners from the land in dispute and further not to auction the land in pursuance of award passed by the Arbitrator in favour of respondent-4. 2. The facts as reflects from the record are that the land of Chak No. 208 was recorded in the names of respondent-5 Ramanand and Vishwanath as Sirdar to the extent of half share each. 3. The respondent-5 Ramanand sold his share vide registered sale-deed dated 1.3.1973 to the father of the petitioners namely Brij Mohan. Prior to the execution of said sale-deed, the respondent-5 deposited 20 times land revenue on 25.1.1973 and subsequently, the Bhumidhari Sanad was issue in his favour. The respondent-5 applied for permission for sale in respect of his holding i.e. part of holding of Chak No. 208 (Gata No. 1120/- 29, 1103/-22, 1110/-14, 1124/-35 and 1108/1/1-00) before the Settlement Officer, Consolidation Deoria. The permission was granted by the Settlement Officer, Consolidation on 31.1.1973 with the rider to execute the sale-deed of the whole of the land within one month. Subsequently, the registered sale-deed was executed by the respondent-5 on 1.3.1973 in favour of the father of the petitioners late Brij Mohan. The petitioners on the strength of the sale-deed, applied for mutating their names in the revenue records during the consolidation operation under Section 12 of the U.P. Consolidation & Holding Act (hereinafter referred to as Act). 4. The respondent-4 Sadhan Shahkari Samiti contested the mutation application of the petitioners by stating that the respondent-5 Ramanand took some loan from the society and has not paid the same. Subsequently, the award was passed against the respondent-5 Ramanand on 1.3.1973 and therefore, the sale-deed has been executed in order to evade the payment of loan and the mutation application was liable to be rejected. 5. Consolidation Officer vide order dated 15.9.1973 rejected the mutation application of the petitioners with the finding that the sale-deed has been executed in favour of the father of the petitioners after a month from the date of permission granted by the Settlement Officer, Consolidation and further the sale-deed executed by the respondent-5 in order to evade the payment of loan and was not in accordance with the permission accorded by the Settlement Officer, Consolidation. The said order passed by the Consolidation Officer was upheld in appeal as well as in revision by the Settlement Officer, Consolidation and Deputy Director of Consolidation vide order dated 25.10.1975 and 23.7.1979 respectively. 6. The present writ petition is for quashing all the three orders of the Consolidation authorities. 7. I have heard Sri P.S. Tripathi, Advocate holding brief of Sri H.S.N. Tripathi, learned counsel for the petitioners, learned Standing Counsel for respondents-1 to 3 and Sri Vishnu Swaroop holding brief of Sri Shesh Kumar, learned counsel for respondent-5. Nobody appears for the respondent-4. 8. Learned counsel for the petitioners submits that all the consolidation authorities have committed illegality while rejecting the mutation application of the petitioners for mutating their names on the strength of sale-deed and the said sale-deed was executed after the due permission from the Settlement Officer, Consolidation. The registered document can only be set aside by way of filing the suit for cancellation and no suit for cancellation has been filed by the concerned respondents. 9. It is further submitted by the learned counsel for the petitioners that the alleged award in respect of payment of alleged loan was passed on 1.3.1973 and sale-deed has also been executed on the same date and therefore, it cannot be said that the sale-deed has been executed in order to evade the payment of loan or to make the award ineffective. 10. It is further submitted by the counsel for the petitioners that the 20 times land revenue has been deposited and the respondent-5 became bhumidhar having transferable right and could very well transfer his share in favour of the father of the petitioners. The said sale-deed is valid and cannot be ignored in the mutation proceeding, which is of summary in nature. 11. Learned Standing Counsel supported the finding as recorded by all the consolidation authorities and the counsel appearing for the respondent-5 supported the contentions as raised by the counsel for the petitioners. 12. I have considered the submission of the parties and perused the record. 13. There is no dispute with regard to the proposition that the day, 20 times revenue was deposited by the Sirdar, he became the bhumidhar unless and until, the Bhumidhari Sanad issued in his favour was withdrawn or set aside. 12. I have considered the submission of the parties and perused the record. 13. There is no dispute with regard to the proposition that the day, 20 times revenue was deposited by the Sirdar, he became the bhumidhar unless and until, the Bhumidhari Sanad issued in his favour was withdrawn or set aside. The respondent-5 on the date of execution of the sale-deed i.e. 1.3.1973 was having full rights to transfer the land as bhumidhari in favour of the father of the petitioners. 14. The question remains whether the respondent-5 took the permission from the Settlement Officer, Consolidation as required under Section 5 (1) (c) (ii) of the Act and sale-deed has been executed in terms of the said permission. 15. In the present case, the permission of the Settlement Officer Consolidation during the consolidation operation was obtained on 31.1.1973 for the execution of whole of the chak and the sale-deed was executed on 1.3.1973 i.e. within 29 days. 16. The question now arises that the Settlement Officer, Consolidation granted the permission for transferring the whole of the chak while only part of the land of disputed chak has been transferred by registered sale-deed and therefore, the said sale-deed can be said to be in accordance with the permission granted by the Settlement Officer Consolidation? 17. The matter is governed by the provisions of U.P. Consolidation & Holding Act and this Act has been amended from time to time. Since, the sale deed in question was executed in the year 1973 and therefore, the provisions as stood prior to the U.P. Act No. 34 of 1974 has to be considered. Section 5 of the Act described the effect of notification issued under Section 4 of the Act. Clause (c) of Section 5 of the Act as stood prior to enforcement of the U.P. Act No. 34 of 1974 is quoted as under: "Notwithstanding anything contained no tenure-holder, except with the permission in writing of the Settlement Officer, Consolidation, previously obtained shall (i) use his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming; or (ii) transfer by way of sale, gift or exchange any part of his holding in the consolidation area....." 18. From the perusal of the Sub Clause (ii) of Clause (c) of Section 5 (1) of the Act, it is apparent that permission has to be taken from the Settlement Officer, Consolidation if the property is transferred by way of sale, gift or exchange in part of his holding in the consolidation area. 19. The Settlement Officer Consolidation granted the permission for the sale of the whole of the area, although, there was no requirement at that time to take any permission for sale of land of the whole of the area. If part land is transferred then there is necessity for taking any permission from the Settlement Officer, Consolidation. 20. The Division Bench of this Court in the case of Ram Behari Shukla v. Munna Lal Shukla and others reported in 1968 ALJ 223 has held that in case of transfer of whole of the area, then there is no necessity for taking the permission from the Settlement Officer, Consolidation as required under Sub Clause (ii) of Clause (c) of Section 5 of the Act. The relevant passage of the judgment are quoted as under: "The question is whether the sale deed dated 25.5.1964 falls within the prohibition of sub-clause (ii) of clause (c) of Section 5 of the Act. The consolidation authorities thought that the sale deed did fall within the prohibition. On the other hand, the learned Single Judge has held that the prohibition should be confined to the sale of a part of a holding and does not extend to a sale of the entire holding. A similar question came before this Court in Natthi Singh v. Kanchhida. In that case it was held by A.P. Srivastava, J that it is not possible to accept the contention that though one or more plots of a Khata cannot be transferred the whole Khata can be transferred without such permission. In that case the learned Judge had to consider the provision of Section 16A of the Act as it stood before the amendment by U.P. Act XXXVIII of 1958., the provision of Section 16-A of the Act as it stood then is somewhat similar to the provision of sub-clause (ii) of clause (c) of Section 5 of the Act as it stands after its amendment by U.P. Act VIII of 1968. In the present case, the learned Single Judge was aware of the broad position that when there is a prohibition against the transfer of any part of a holding, it should be construed to mean prohibition against a transfer of the whole holding. But he considered that, in view of the context of Section 5 (c) (ii), the prohibition should not be extended to the sale of the whole holding. The learned Single Judge has given two reasons in support of his view. He has pointed out that clause (c) of Section 5 of the Act contains prohibitions of two kinds. Sub-clause (i) contains prohibition against use of a holding or a part of a holding for purposes not connected with agriculture etc. Sub-clause (ii) of clause (c) of Section 5 of the Act contains a prohibition against the sales etc. of any part of a holding. It is significant that the language used in sub-clause (ii) is different from the language used in sub-clause (i). In sub-clause (I) the reference is to use of a holding or any part thereof. On the other hand, the words used in sub-clause (ii) are : "sale.......... any part of his holding.......". If the legislature intended that the ban under the sub-clause (ii) should be co-extensive with the ban in sub-clause (I), it was quite easy for the Legislature to use the expression "holding or any part thereof" as was done under sub-clause (I). But the language of sub-clause (ii) materially differs from the language of sub-clause (I). Secondly, the learned Single Judge has pointed out that in case a portion of a holding is transferred during consolidation operations, complications will arise because the holding will then consist of two portion-one belonging to one tenure-holder, the transferor, and the other belonging to another tenure-holder, the transferee. If the entire holding is transferred, it will not disturb consolidation operations, because all that one has to do is to substitute the transferee's name in place of the transferor. In view of the these considerations, the learned Single Judge was justified in taking the view that sub-clause (ii) of clause (c) of Section 5, does not prohibit sale of the entire holding. Sri K.S. Verma, appearing for the appellant, invited us to place strict interpretation on sub-clause (ii). We do not think that the rule of strict construction helps the appellant. Sri K.S. Verma, appearing for the appellant, invited us to place strict interpretation on sub-clause (ii). We do not think that the rule of strict construction helps the appellant. The words used in sub-clause (ii) are: "Any part of his holding". Strictly speaking, the entire holding cannot be described as a part of the holding. So, on any view of the matter, the view taken by the learned Single Judge appears to be correct. " 21. From the above discussion, it is quite clear that for transfer of part of the land, the permission from the Settlement Officer, Consolidation is required as per Section 5 (c) (ii) of the Act. In case whole land is transferred, then there is no necessity for taking the permission from the Settlement Officer, Consolidation. The permission has been obtained by the respondent-5 from the Settlement Officer, Consolidation in the present case on 31.1.1973 and accordingly, the registered sale-deed was executed by the respondent-5 in favour of the petitioners. Therefore, the sale-deed has been executed in accordance with the permission granted by Settlement Officer, Consolidation. 22. So far as the contention of the learned counsel for the petitioner that the registered instrument cannot be ignored in the mutation proceeding and for that purpose, suit has to be filed for cancellation of the said instrument. Here the statute provides that permission has to be obtained in respect of the transfer of any part of the holding falls within consolidation area and in absence of the said permission, the registered instrument rendered void and in such circumstances, there is no necessity for filing any suit for cancellation of sale-deed. 23. So far as the question that the present sale-deed in question has been executed by the respondent-5 in favour of the petitioners in order to evade the payment of loan alleged to have taken from the Society, it is clear from the record that the award as well as sale-deed has been executed on the same day and prior to sale-deed, 20 times land revenue has been deposited by the respondent-5, even he applied for obtaining the permission from the Settlement Officer, Consolidation and in such circumstances, it cannot be said that the sale-deed has been executed by the respondent-5 in order to evade the payment of loan and to render the award ineffective. If any award is passed against the respondent-5 under any statute that has to be executed in accordance with law even in absence of the land, which has been sold by the respondent-5. 24. All the Consolidation Authorities have committed illegality while holding that the sale-deed has been executed contrary to the permission granted by the Settlement Officer, Consolidation. The provisions of Section 5 (c) (ii) of the Act as stood prior to amendment by U.P. Act No. 34 of 1974 has totally been ignored by them. 25. The writ petition deserve to be allowed and the impugned orders dated 23.7.1979, 25.10.1975 and 15.9.1973 passed by the Deputy Director of Consolidation, Deoria, Settlement Officer, Consolidation, Deoria and Consolidation Officer, Deoria respectively are quashed. Writ petition is, accordingly, allowed. 26. The matter is remanded to the Consolidation Officer, Deoria to decide the mutation application of the petitioners afresh after hearing the parties in the light of the observations made above. Since, the matter is an old one and therefore, the same should be decided expeditiously preferably within a period of six months from the date of production of certified copy of this order. In the circumstances of the case, the parties shall bear their cost throughout.