1. Heard Sri P.V. Chaudhary, learned Counsel for the petitioner and the learned Standing Counsel.
2. By means of instant writ petition, petitioners have challenged the orders whereby the Joint Director of Consolidation accepted the reference made under Section 48 (3) of the U.P. Consolidation of Holdings Act [in short referred to as the 'Act'] by the learned Settlement Officer of Consolidation and set aside the order passed by the Assistant Consolidation Officer regarding mutation of petitioner's name.
3. According to the learned Counsel, petitioners had purchased complete Chaks after 7th December, 1974 from their different vendors in the Villages in which they reside except petitioners No. 17, 18, 21 and 22, who had purchased complete chaks in the Villages Chandpur Bhatpura Pargana and Tehsil Akbarpur, District Faizabad and Arjunpur, Pargana Minjhaura, Tehsil Akbarpur, District Faizabad respectively. The consolidation proceedings both under Section 9 and Section 20 of the Act were entirely completed by the 1st week of December, 1974 and the petitioners were under an honest belief that complete chaks could be bought even before issuance of notification under Section 52 of the Act for closing of consolidation operation.
4. Clarifying the position, it has been submitted that petitioners had purchased complete chaks after 07.12.1974 on different dates and were given possession of the chaks which they had purchased by the vendors and thus they applied for mutation before their respective Assistant Consolidation officers. The vendors admitted to have delivered the possession to the petitioners on the basis of the sale deed and, therefore, the Assistant Consolidation Officer allowed the mutation application.
5. Later on, the Settlement Officer, Consolidation (opposite parties No. 2) made three references on 19.07.1976, 26.06.1976 and 20.08.1976 to the Joint Director of Consolidation (opposite party No. 1) for cancelling the mutation order. The Joint Director of Consolidation after receiving the references had called for the petitioners to be present on 26.08.1976 with their evidence. The petitioners appeared before the Joint Director of Consolidation on 27.08.1976 and stated that the transfers were bona fide and mutation orders were passed on the basis of possession and by way of conciliation because vendors admitted that they had delivered the possession. Without considering the explanation given by the petitioners, the Joint Director cancelled the mutation of the petitioners vide order dated 07.09.1976, which is impugned in the instant writ petition.
6. It has also been submitted that proceedings under Sections 9 and 20 of the Act having been completed in the villages concerned and as such the transfer of land by way of transfer did not cause any injury or inconvenience to any one and no interference in the consolidation proceedings were caused although the formal notification under Section 52 of the Act was not made. Therefore, the impugned order is bad in law and is liable to be set-aside.
7. Learned Standing Counsel, in contrast, has submitted that petitioners had purchased the holdings through sale deeds after 7/12/1974 i.e. after the commencement of the consolidation proceedings and the village was under notification. As per amended Section 5(c)(ii) of the Act, no tenure holder could sale,git or exchange, his whole holding or part of it without obtaining prior permission of the Settlement Officer of Consolidation. Therefore, the plea of the petitioner that they are innocent and had no knowledge about the amendment in law and the same has been done in good faith is not acceptable as ignorance of law is no excuse.
8. According to Section 5 (c) (ii) of the amended U.P. Consolidation of Holdings Act dated 07.12.1974, no tenure holder could sale, gift or exchange his whole holding or part of it without obtaining the prior permission of the Settlement Officer of Consolidation, therefore, it is obvious that the orders of mutation on the basis of sale deed executed after 07.12.1974 regarding the entire or a part of holding without obtaining prior permission of the Settlement Officer of Consolidation is in contravention of Section 5(c)(ii). If on account of this irregularity, the learned Settlement Officer of Consolidation, who is a subordinate authority, made a reference to the learned Joint Director of Consolidation under Section 48(3) for setting aside the said order of mutation, there has been no illegality in setting aside the said order by the Joint Director of Consolidation.
9. As regard the assertion of that vendors executed the the sale deed under an honest belief that petitioners had purchased the complete chaks and the consolidation process had completed except the issuance of notification under Section 52 of the Act, is in no way sufficient to turn down the irregularity as was pointed out by the learned Settlement Officer of Consolidation to the Joint Director of Consolidation, who by his findings and orders removed the same.
10. Having considered the arguments advanced by the parties, first of all, I would like to point out that the U.P. Consolidation of Holdings Act, 1953 was published in the official gazette on 8th March, 1954. The object of the Act is to allot a compact area in lieu of scattered plots to tenure-holders so that large scale cultivation may be possible with all its attendant advantages. Thus by the reduction of boundary-lines saving of land takes place and the number of boundary disputes is reduced. There is saving of time in the management of fields inasmuch as the farmer is saved from travelling from field to field, which may be at considerable distance from each other. Proper barriers such as fences, hedges and ditches can be erected around a compact area to prevent trespassing and thieving. It would further be easier to control irrigation and drainage and disputes over water would be reduced considerably where compact area are allotted to tenure-holders. Lastly, the control of pests, insects and plant-disease is made easier where farmers have compact areas under cultivation. These advantages resulting from consolidation of holdings are intended to encourage the development of agriculture and larger production of food grains, which is the necessity of the day.
The preamble of the Act reads:
"An Act to provide for the consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture.
Whereas it is expedient to provide for the consolidation of agricultural holding in Uttar Pradesh for the development of agriculture."
11. It may be further pointed out that when the Act was enacted, there was no provision regarding prior permission of the Settlement Officer (Consolidation) for transfer of a holding or part thereof by a tenure holder during consolidation operation in the area concerned. The State Government amended the aforesaid Act by introducing U.P. Act No. XXXVIII of 1958 which came into force on November 27, 1957 inserting Section 5(c) (ii) in the Act and it was made compulsory to obtain prior permission of the Settlement Officer, Consolidation for transfer of any part of his holding by a tenure Holder, during consolidation operation in the area concerned. By U.P. Act No. XXXIV of 1974, which came into force on December 7, 1974 an amendment was incorporated in Section 5(c)(ii) and prior permission of the Settlement Officer of Consolidation was made mandatory for transfer of a holding of a part thereof by a tenure holder during the consolidation operation in the area concerned. Later on, by U.P. Act No. XXX of 1991, Section 5(c)(ii) was omitted and now, there is no need of obtaining permission of Settlement Officer, Consolidation for transfer of holding after the commencement of the Consolidation Scheme.
12. I am of the considered view that earlier the amendment was introduced in Section 5(c)(ii) of the Act with an underlying object prohibiting transfer of land during consolidation operation as it would create complications if only part of holding is transferred. However, if the whole holding is transferred that will not disturb the progress of the consolidation proceedings. The scheme of the Act is to treat a person as a Bhumidhar tenure-holder or Sirdar tenure-holder and not to have separate holdings under the same tenure.
13. In the case of Suraj Pal v. Ram Manorath [2017(35) LCD 2531 the Apex Court observed as under:-
The purpose of a consolidation scheme is to provide consolidation of agricultural holdings. Abadi land, groves etc. are kept outside the scope of consolidation scheme. They cannot be re-allocated or re-allotted to any other person. Therefore, strictly speaking, they are not subject matter of the consolidation scheme. The intention of introducing Section 5(c)(ii) of the Act was that if the land holding is subject to consolidation proceedings then permission of the Settlement Officer (Consolidation) is required before the same is transferred. This is so because if the land, which is subject matter of consolidation proceedings, is sold or permitted to be transferred during consolidation proceedings, it could affect the entire consolidation scheme.
14. A Full Bench of this Court, in its decision, in the case of Ram Rati v. Gram Samaj; AIR 1974 Allahabad 106 had clarified that the ban envisaged under clause (ii) of Section 5 of the Act was to prevent the fragmentation of holdings and, as such, it was placed only on a transfer of a part of the holding. There could be no objection to the transfer of the holding as a whole because it would not involve fragmentation but would involve only a change in ownership. The scheme underlying the Act was to consolidate agricultural holdings and to prevent their further fragmentation and also to preserve the land for agricultural purpose. The Full Bench further observed that it was not the intention to restrict the right of an owner to deal with his property by way of sale, exchange or transfer except to the extent that was necessary to carry out the objects of the Act.
15. Considering the Preamble, Object of the Act and other relevant provisions of the Act, this Court is of the view that intention of introducing Section 5(c)(ii) to the U.P. Consolidation of Holdings Act was that if the land included in consolidation proceeding does not affect allotment of Chak proceeding under U.P. Consolidation of Holdings Act on account of transfer by way of sale, gift or exchange, no prior written permission of Settlement Officer, Consolidation as required under Section 5 (c )(ii) of the U.P. Consolidation of Holdings Act was required. It seems to me that invalidity of a transfer resulting in the absence of the prior permission as envisaged under Section 5(1)(c)(ii) of the Act does no per se render the transaction void or legally ineffective. [see: Lalta Prasad Srivastava v. Ix Additional District Judge, Agra; 1996(87) RD 544]. Moreover, it is the definite stand of the petitioners that they had purchased the complete chaks when the process relating to consolidation had completed except the issuance of notification under Section 52 of the Act for closure of the consolidation operation.
16. It is significant to mention that the present writ petition was filed in the year 1976 and the learned Single Judge while admitting the writ petition, stayed the implementation of the impugned orders vide order dated 3.11.1976 and the same is still holding the field. In these circumstances, equity is also in favour of the petitioners.
17. In view of the aforesaid legal position and discussion, the writ petition is allowed and the impugned orders are hereby quashed. Consequent to follow.
Petition Allowed.
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