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2018 DIGILAW 1655 (ALL)

Manraj v. Sabhajit

2018-07-27

ANIL KUMAR

body2018
JUDGMENT : ANIL KUMAR, J. 1. Matter is taken up in revised list. 2. None appeared on behalf of the opposite parties. 3. Heard Sri I.D.Shukla, learned counsel for the petitioner and perused the record. 4. Facts, in brief, of the present case are that opposite party no.1 Sabhjit (now deceased) substituted by his legal heirs Ravindra Pratap Singh, was bhomidhar of holding no.198, comprising of plots nos. 977, 1028 and 1029 situated in village Bhiti Pratapgarh District Sultanpur . 5. As per the case of the petitioner/ Manraj (now deceased), opposite party no.1 has obtained a permission from Settlement Officer, Sultanpur for selling the aforesaid plots of his holdings as per the provisions as provided under sections 5(1) (c) (ii) of the U.P. Consolidation of Holdings Act, 1953. Subsequently, parts of the aforesaid land had been sold in favour of the petitioner. Thereafter matter came up for consideration before Consolidation Officer, Sultanpur by order dated 10.1.1980 has stated that as the permission was obtained by the petitioner for selling out the whole part of the land so parts of the land cannot be sold. The said order was affirmed in part vide order dated 5.11.1980 by Assistant Settlement Officer Consolidation, Sultanpur thereafter by order dated 28.5.1981 passed by Assistant Director of Consolidation, Sultanpur. 6. I have heard learned counsel for the petitioner and gone through the record. 7. The sole question which has to be considered in the present case is to the effect that whether the permission has taken for selling out the whole of the holdings as per sections 5(1) (c) (ii) of the U.P. Consolidation of Holdings Act, 1953 then the part of the same can be sold or not? 8. Answer to the said question find place in the judgment given by this Court in the case of Kali Charan and others Vs. Deputy Director of Consolidation Gyanpur, Varanasi and others, 1983 Revenue Judgments, 144 wherein it has been held as under:- "The learned Counsel for the Petitioners argued that since the permission was obtained by opposite party No. 4 for making transfer of his land of chak No. 246 hence he could execute the sale deeds in question which were in respect of the portions of the said chak land. The Deputy Director of Consolidation has erred in holding that since the permission was granted to opposite party No. 4, to transfer the entire chak land hence the sale deeds could not be executed by him in respect of the portions thereof. The learned Counsel for the opposite party No. 4 supported the orders passed by the Deputy Director of Consolidation on the reasonings stated therein. He further contended that in the permission granted to opposite party No. 4 it is not mentioned that he could transfer the land in small portions and, as such, the sale deeds in question are void and the Deputy Director of Consolidation has rightly refused to order mutation in favour of the Petitioners. I find substance in the argument of the learned Counsel for the Petitioners. In Banwari Lal v. Asstt. Director of Consolidation, (Civil Misc. Writ No. 6057 of 1974 decided on 6th August, 1981), I had an occasion to consider the aforesaid point and I have held that: "If permission has been granted for making, transfer of whole, the same would enure for making transfer of a part thereof, unless expressly forbidden to do so under the law or by any such condition mentioned in the order itself, to the effect that the entire holding can be transferred and not any part thereof. But no such condition exists in the present case. There also exists no such bar in the statute nor the provision contained in Section 5(c)(ii) of the Act can be interpreted as such. If permission to sell entire holding or entire share in the holding consisting of several plots or chaks in one tenure has been granted, the prohibition in making transfer would stand removed and any one or more of plots or chaks or entire share therein belonging to transferor can be validly transferred. The Board of Revenue in the aforesaid case of Pooran Singh (supra) has wrongly referred to the provision of Section 168A of the U.P. Zamindari Abolition and Land Reforms Act which applies to transfers after the close of consolidation operations in the unit and it will not govern transfers made during continuance of consolidation operations in the unit. The decision of the Board of Revenue being based on consideration of the provisions of Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act is, therefore, altogether erroneous. The decision of the Board of Revenue being based on consideration of the provisions of Section 168-A of the U.P. Zamindari Abolition and Land Reforms Act is, therefore, altogether erroneous. The transfer of part of land after obtaining permission to transfer whole cannot be said to defeat the purpose of the Act nor it will invalidate the sale so effected. 7. I have fully considered the argument advanced by the learned Counsel for the opposite parties but I do not find any good reason to depart from the view that has been taken by me in the aforesaid case. In this view of the matter, I am of the opinion, that the Deputy Director of Consolidation has wrongly held that the sale deeds, which were executed by opposite party No. 4 in favour of Petitioners Nos. 1 to 5 on the dates between 13th May 1970 to 11th June 1978 were invalid simply on the ground that those were in respect of part of the chak land in question although permission was granted by the Settlement Officer (Consolidation) to opposite party No. 4 to transfer the said entire land. The sale deeds dated 13-5-70 in favour of Petitioner Nos. 1 to 4 and sale deed dated 11-6-70 in favour of Budhai, Petitioner No. 5 were, in my opinion perfectly valid and the Assistant Settlement Officer (Consolidation) had rightly ordered mutation in favour of Petitioners Nos. 1 to 5 in respect of the land covered by the aforesaid five sale deeds. 8. The learned Counsel next contended that the Settlement Officer (Consolidation) has erred in not ordering mutation in favour of Petitioner No. 1, Kali Charan on the basis of the sale deed dated 29-10-1970. He contended that the conditions mentioned in the permission for making transfer within a period of three months was invalid as under the provisions of Section 5(c)(ii) he could not impose such condition while granting permission and, as such, the sale deed dated 29-10-1970 executed by opposite party No. 4 was perfectly valid and his name deserves to be mutated on the land covered by the sale deed. I do not find any substance in this argument. There is no such prohibition contained in Section 5(c)(ii), as was argued by the learned Counsel for the Petitioner. I do not find any substance in this argument. There is no such prohibition contained in Section 5(c)(ii), as was argued by the learned Counsel for the Petitioner. In the absence of any prohibition contained in the aforesaid provision, the Settlement Officer (Consolidation) could direct that the order granting permission to make transfer would be operative only for a limited period and, as such, the condition imposed cannot be said to be illegal, unjust or improper specially in view of the fact that the consolidation proceedings are to be conducted and concluded expeditiously. If a transfer is executed after getting permission, certain proceedings are to be taken under Section 12 of the Act for mutating the name of the transferee and some time will be taken in concluding those proceedings. Keeping in view of these facts the Settlement Officer (Consolidation) could require the transfer to be made within the specified period so as to avoid delay in preparing records. In this view of the matter I am, therefore, of the opinion that the condition which is prescribed in the order granting permission, cannot be said to be unreasonable, illegal or void in any manner whatsoever. The order, granting permission automatically lapsed after the expiry of the period of three months within which the opposite party No. 4 was permitted to make transfer of the land. As such, when the sale deed was executed on 29-10-70 there was no subsisting permission granted by the Settlement Officer (C) under Section 5(c)(ii) of the Act. The Settlement Officer (C) in my opinion, was therefore, perfectly justified in refusing mutation on the basis of the sale deed dated 29-10-70. No other point is pressed before me. " 9. The said view has been further reiterated by this Court in the case of Lalta Prasad Srivastava and another Vs. IX Additional District Judge, Agra and others, 1996 (87) RD 544 wherein it has been held as under:- "Even the consequence of a transfer in violation of Section 5(1) (c) (ii) of the U.P. Consolidation of Holdings Act stand provided under Section 45(a) of the Act which stipulates that a transfer made in contravention of the provisions of Section 5(c) (ii) shall not be valid or recognized, anything contained in any other law for the time being in force to the contrary notwithstanding. 10. 10. The aforesaid provision does not indicate that the transfer in the absence of the requisite prior permission will be voild ab-initio but only provides that for the purpose of the Act such transfer will not be treated to be valid or recognised. In the aforesaid connection it may be noticed at this stage that the legislature is not short of words and in case the intention had been to treat the transfer of any part of the holding as defined under the provisions of the U.P. Consolidation of Holdings Act to be legally inoperative or non-est there could be no difficulty in using the expression 'void' in place of expression " invalid". 11. The provisions contained in Sections 163,166, 168-A(2) and 189 (aa) of the U.P. Zamindari Abolition and Land Reforms Act, it has been specifically provided that a transfer in contravention of the provisions in the aforesaid Act would be void. In fact while providing for the consequence of such void transfers in the provision contained in Section 189 of the U.P. Zamindari Abolition and Land Reforms Act it has been clearly indicated that the interest of the tenure-holder gets extinguished. The language and expression used in Section 45-A of the U.P. Consolidation of Holdings Act do not indicate any such intention. 12. This Court in its decision in the case of Banwari Lal Vs. Assistant Director of Consolidation and others passed in Civil Misc. Writ Petition No.6057 of 1974 had clarified that a permission granted on transferring the whole would enure for making transfer of a part thereof unless expressly forbidden to do so under law, for, by any such condition indicated in the order itself providing that the entire holding can be transferred and not the part only. In the present case no such condition has been shown to exist." 13. For the foregoing reasons, the writ petition is allowed and the impugned orders under challenge in the present writ petition are set aside and the matter is remanded to Assistant Director of Consolidation/ Deputy Director of Consolidation, Sultanpur to decide a fresh expeditiously after giving due opportunity of hearing to the parties to the litigation.