Smt. Bhagwati v. Deputy Director, Consolidation, Ghaziabad And Others

1. This writ petition arises out of proceedings under S. 12 of the U.P Consolidation of Holdings Act (hereinafter referred to as the Act). The contesting opposite parties 4 to 6 in the present writ petition being transferees of the disputed land applied for their names to be mutated over the same. The petitioner contested their claim on the ground that the sale deed was bad in law as no permission was sought for the execution of the sale deed in favour of the contesting opposite parties under the provisions of S. 5(c)(ii) of the Act. The aforesaid provision reads as below:—

“Upon the Publication of the notification under sub-sec. (2) of S. 4 in the official Gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act from the date specified thereunder till the publication of notification under S. 52 of sub-sec. (1) or S. 6, as the case may be, ensue in the area to which the notification under S. 4(2) relates; namely—

(a)-(b) ……

(c) notwithstanding anything contained in the U.P Zamindari Abolition and Land Reforms Act, 1950 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 his holding or any part thereof in the consolidation area”

2. Relying upon the aforesaid provision it has been contended before me that the consolidation authorities have patently erred in giving effect to the sale deed in favour of the contesting opposite parties.

3. It has been emphasized that the sale deed was executed by the Civil Court in favour of the contesting opposite parties on behalf of the petitioner, hence it was incumbent upon the Civil Court to have obtained necessary permission under S. 5(c)(ii) of the Act.

4. All the consolidation authorities have negatived the contention raised on behalf of the petitioner in this regard.

5. While construing the provisions of S. 154 of the U.P Zamindari Abolition and Land Reforms Act, Division Bench of this Court in 1955 All LJ 242 Mst. Janatun Nisan v. Mustafa Husain Khan I observed as below.

“………. It is doubtful whether the restriction contained in S. 154 is applicable to an execution sale……..”

6. In 1968 Rev. Dec. 168 Gaon Sabha Village Sikri Buzurg v. D.D.C a single Judge of this Court as he then was, has observed as below:—

“………. The right of the State to acquire is not tramelled by S. 154. Similarly that section does not deal with the situation” which may arise by attachment and sale of the holding in execution proceedings. The Court puts up in auction the interest of the Bhumidhar in land: The Court is not subjected to the condition which has been imposed upon the Bhumidhar, in respect of his right of disposal as an owner. These circumstances show that S. 154 places a personal restriction upon the Bhumidhar himself in relation to his right of transfer voluntarily. That restriction is not applicable to compulsory sales. The authorities below were right in holding that the execution sale was not illegal.”

7. To my mind the restriction contained in S. 5(c)(ii) of the U.P Consolidation of Holdings Act relates to a voluntary sale by the tenure holder. If the tenure holder refuses to execute sale deed in pursuance of an agreement to sell and the Civil Court is called upon to execute necessary sale deed in favour of the decree holder, it would be too much to expect that the Civil Court should seek permission of the Settlement Officer of Consolidation for executing the necessary sale deed in favour of the decree holder. If the contentions raised on behalf of the petitioner are accepted, there are chances that the decree passed by the Civil Court would become ineffective if the Settlement Officer of Consolidation refuses to grant permission. The provisions of S. 5(2) of the Act do not apply to suits for specific performance of a contract to sell as is evident from several decisions of this Court. If the bar contained in S. 5(c)(ii) is imposed upon the Civil Court, the net result would be that an unwilling tenure-holder can get an opportunity to thwart the civil court decree in an undesirable manner.

8. Mere reading of S. 5(c)(ii) of the Act indicates that the bar contained in the aforesaid section is only upon the tenure holder. If the Civil Court executes a sale deed against the will of the tenure holder it would not at all be necessary for the Civil Court to seek permission of the Settlement Officer of Consolidation under the provisions of S. 5(c)(ii) of the Act.

9. However, in view of what has been said above, I am not prepared to hold that the consolidation authorities have patently erred in recognizing the sale deed executed by the Civil Court in favour of the contesting opposite parties without permission under S. 5(c)(ii) of the Act.

10. In the result, the writ petition fails and is accordingly dismissed. Since none has appeared on behalf of the contesting opposite parties, I direct the parties to bear their own costs.

11. Petition dismissed.