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2017 Supreme(All) 2806
IN THE HIGH COURT OF ALLAHABAD
Rajiv Joshi, J.
Surya Narayan – Appellant
Vs.
Deputy Director of Consolidation – Respondent
Civil Misc. Writ Petition No. 7414 of 1979
Decided On : 22-12-2017
For the Appellant :H.N. Tripathi, H.S.N. Tripathi and P.S. Tripathi, Advocates
For the Respondent:R.B. Tripathi, G.S. Mishra, S.C, Shesh Kumar and Vishnu Swaroop, Advocates
The main legal point established in the judgment is the requirement of obtaining permission for transferring land rights under the U.P. Consolidation & Holding Act and the consequences of non-compliance with the statutory provisions.
Headnote:
mutation - U.P. Consolidation & Holding Act - Section 5 (1) (c) (ii) - 5, 12 - The court discussed the provisions of U.P. Consolidation & Holding Act and its interpretation in relation to the mutation application for transferring land rights. It highlighted the requirement of permission for transferring part of the land, the validity of sale-deed in mutation proceedings, and the execution of sale-deed in accordance with the permission granted by the Settlement Officer, Consolidation.
Fact of the Case:
The petitioners filed a writ petition challenging the orders passed by the consolidation authorities and seeking direction not to dispossess them from the disputed land. The dispute arose from the mutation application for transferring land rights based on a sale-deed executed by respondent-5 in favor of the petitioners.
Finding of the Court:
The court found that the sale-deed was executed in accordance with the permission granted by the Settlement Officer, Consolidation, and the mutation application of the petitioners was wrongly rejected by the consolidation authorities.
Issues: The issues revolved around the legality of rejecting the mutation application, the validity of the sale-deed, and the compliance with the provisions of the U.P. Consolidation & Holding Act.
Ratio Decidendi: The court held that for transferring part of the land, permission from the Settlement Officer, Consolidation is required as per Section 5 (1) (c) (ii) of the Act. It also emphasized that the registered instrument can be rendered void in absence of the required permission, and there is no necessity for filing a suit for cancellation of the sale-deed.
Final Decision: The writ petition was allowed, and the impugned orders passed by the consolidation authorities were quashed. The matter was remanded to the Consolidation Officer to decide the mutation application afresh.
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 cou
