Allahabad High Court
Bhuley And Others vs The Director Of Consolidation And ... on 9 December, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 18 Reserved AFR Case :- WRIT - B No. - 6549 of 1990 Petitioner :- Bhuley And Others Respondent :- The Director Of Consolidation And Others Counsel for Petitioner :- Dr. V.K. Rai, Vijay Kumar Rai Counsel for Respondent :- S.C.,Yogesh Kumar Singh, K.R. Sirohi Hon'ble Ram Surat Ram (Maurya),J.
1. Heard Sri Vijay Kumar Rai, for the petitioners and Sri K.R. Sirohi, Senior Advocate, assisted by Sri Yogesh Kumar Singh, for the contesting respondents.
2. The writ petition has been filed against the orders of Consolidation Officer dated 25.04.1986, Settlement Officer Consolidation dated 17.07.1989 and Assistant Director of Consolidation dated 08.03.1990, passed in title proceedings, under U.P. Consolidation of Holdings Act, 1953 (hereinafter after referred to as the Act).
3. The dispute relates to land of basic consolidation year khata 88 [consisting plots 45 (area 9-3-0 bigha), 69 (area 3-1-0 bigha), 278 (area 1-14-0 bigha), 307 (area 3-04-0 bigha), 315 (area 2-16-0 bigha) and 422 (area 22-2-0 bigha)], which was recorded in the name of Ram Ratan son of Man Singh and khata 93 [consisting plots 96 (area 8-13-0 bigha) and 103/1 (area 3-2-0 bigha), which was recorded in the names of Ram Ratan son of Man Singh and Desh Raj son of Ram Chandra, of village Jhatta, pargana Dankaur, district Buland Shahar. Ram Ratan executed three sale deeds dated 04.09.1982, by which he transferred entire land of khata 88 and his 1/2 share of khata 99, in favour of the petitioners .
4. Village Jhatta, pargana Dankaur, district Buland Shahar was placed under consolidation operation by Notification No. 2426/G-33-81, dated May 26, 1982 published in U.P. Gazette Part 1-Ka, dated 10th July, 1982 and notification in the Unit took place on 24.09.1982, according to the provisions of Section 4 (2) (b) of the Act. The village was notified under Section 9 of the Act, in October, 1985. In CH Form 5, relating to khatas in dispute, the possession of the petitioners were noted and name of Smt. Angoori (respondent-4) was noted as an heir of Ram Ratan. The petitioners filed their objections under Section 9 of the Act, for recording their names over the land in dispute, on the basis of the sale deeds dated 04.09.1982, executed by Ram Ratan in their favour. Smt. Angoori contested the objections on the ground that sale deeds were obtained without prior permission of Settlement Officer Consolidation and are void documents. The sale deeds were procured by committing fraud without payment of consideration. The sale deeds were canceled by the decree of Civil Court dated 24.05.1983, passed in Civil Suit No. 296 of 1982. She claimed to be daughter of Ram Ratan and his only heir.
5. The objections of the petitioners were registered as Case No. 376 to 379 and consolidated and tried together. Apart from documentary evidence, the petitioners examined Ratan Lal and Smt. Premwati alias Ramwati, the marginal witnesses of the sale deeds and the respondent examined Prem Singh, Deshraj and Bhagwat Singh. The Consolidation Officer, by his order dated 25.04.1986 held that the name of Smt. Angoori was mutated as an heir of Ram Ratan by the order of Assistant Consolidation Officer dated 05.11.1985. Although due execution of the sale deeds dated 04.09.1982 by Ram Ratan in favour of the petitioners has been proved but as the sale deeds have already been canceled by decree of Civil Court dated 24.05.1983 as such it cannot be given effect to in consolidation records. The requisite permission of Settlement Officer Consolidation was not obtained under Section 5 (1) (c) of the Act as such the sale deeds are void. On these findings objections of the petitioners were dismissed by order dated 25.04.1986.
6. The petitioners filed appeals (registered as Appeal Nos. 1079, 1080, 1081 and 1082) from the aforesaid order. In the meantime exparte decree dated 24.05.1983 was set aside and O.S. No. 196 of 1982 was abated under Section 5 (2) of the Act. The appeals were consolidated and heard by Settlement Officer Consolidation, who by order dated 17.07.1989 held that as notification under Section 4 (2) was published in Government Gazette on 10.07.1982 and the sale deeds were executed on 04.09.1982 without prior permission of Settlement Officer Consolidation as such the sale deeds are void and the names of the petitioners cannot be mutated on its basis. The petitioners filed revisions (registered as Revision Nos. 1980/550, 1981/551 and 1982/552) from the aforesaid orders. The revisions were consolidated and heard by Assistant Director of Consolidation (respondent-1) who by order dated 08.03.1990 upheld the findings of Settlement Officer Consolidation and dismissed the revisions. Hence, this writ petition has been filed.
7. The counsel for the petitioners submitted that Section 4 (2) (a) of the Act (as amended by U.P. Act No. VIII of 1963) provides that when the State Government decides to start consolidation operations, either in an area covered by a declaration issued under sub-section (1) or in any other area, it may issue a notification to this effect. The mode of issuing notification has been provided under Section 4 (2) (b) of the Act, which provides that every such notification shall be published in the official gazette and in each unit in the said area. Thus so long as notification according to the provisions of Section 4 (2) (b) of the Act is not published, the village is not brought under consolidation operation. Notification in Government Gazette was published on 10.07.1982 and in the Unit was published on 24.09.1982 as such prior to 24.09.1982, the consolidation operation in the village was not started and the sale deeds dated 04.09.1982 were not hit by the provisions of Section 5 (1) (C) of the Act. The Consolidation Officer found due execution of the sale deeds by Ram Ratan was proved as such the names of the petitioners were liable to be recorded over the land in dispute on the basis of the sale deeds executed by Ram Ratan in their favour. The orders of consolidation authorities are illegal and is liable to be set aside. He placed reliance on the judgments of this Court in Nagina and another Vs. DDC and others, 1997 (1) AWC 29, Raj Singh Vs. DDC and others, 1997 (88) RD 348, Ram Chandra Vs. DDC and others, 2001 (92) RD 531 and Madan Lal Vs. DDC and others, 2004 (96) RD 8, in which it has been held that consolidation operation in the village commences from the date of publication of the notification in the Unit. The counsel for the petitioners also relied upon several other case law in which the word publication as mentioned in Land Acquisition Act, 1894 and Railways Act, were interpreted.
8. In reply to the aforesaid arguments, the counsel for the respondent submitted that in the case law relied upon by the counsel for the petitioners, different words under Section Section 5 (1) and 5 (2) of the Act have not been noticed. Under Section 5 (1) the words "Upon the publication of the notification under sub-section (2) of Section 4 in the Official Gazette" have been used, while under Section 5 (2) the words "Upon the publication of the notification under sub-section (2) of Section 4" have been used. This was the cautious act of the legislature. The consequences of sub-section (1) of Section 5 follow from the date of the notification under sub-section (2) of Section 4 in the Official Gazette. Admittedly notification under Section 4 (2) in the Government Gazette was published on 10.07.1982 as such sale deeds executed on 04.09.1982 without prior permission of Settlement Officer Consolidation were void. The consolidation authorities have rightly ignored the sale deeds. He submits that the Court only interprets the provision of law and has no jurisdiction to add any thing omitted in the law as held by Constitutional Benches of Supreme Court in S.P. Gupta Vs. Union of India and others, AIR 1982 SC 149 and Punjab Land Development Reclamation Corporation Ltd. Labour Court, (1990) 3 SCC 682. The writ petition is liable to be dismissed.
8. I have considered the arguments of counsel for the parties and examined the record. So far as the arguments of the counsel for the respondent is concerned it is well settled that the Court only interprets the provision of law and has no jurisdiction to add any thing in it. Constitutional Bench of Supreme Court in Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682, held that the court has to interpret a statute and apply it to the facts. Hans Kelsen in his Pure Theory of Law (p. 355) makes a distinction between interpretation by the science of law or jurisprudence on the one hand and interpretation by a law-applying organ (especially the court) on the other. According to him "jurisprudential interpretation is purely cognitive ascertainment of the meaning of legal norms. In contradistinction to the interpretation by legal organs, jurisprudential interpretation does not create law". "The purely cognitive interpretation by jurisprudence is therefore unable to fill alleged gaps in the law. The filling of a so-called gap in the law is a law-creating function that can only be performed by a law-applying organ; and the function of creating law is not performed by jurisprudence interpreting law. Jurisprudential interpretation can do no more than exhibit all possible meanings of a legal norm. Jurisprudence as cognition of law cannot decide between the possibilities exhibited by it, but must leave the decision to the legal organ who, according to the legal order, is authorised to apply the law". According to the author if law is to be applied by a legal organ, he must determine the meaning of the norms to be applied: he must ''interpret' those norms (p. 348). Interpretation therefore is an intellectual activity which accompanies the process of law application in its advance from a higher level to a lower level. According to him, the law to be applied is a frame. "There are cases of intended or unintended indefiniteness at the lower level and several possibilities are open to the application of law". The traditional theory believes that the statute, applied to a concrete case, can always supply only one correct decision and that the positive-legal ''correctness' of this decision is based on the statute itself. This theory describes the interpretive procedure as if it consisted merely in an intellectual act of clarifying or understanding; as if the law-applying organ had to use only his reason but not his will, and as if by a purely intellectual activity, among the various existing possibilities only one correct choice could be made in accordance with positive law. According to the author: "The legal act applying a legal norm may be performed in such a way that it conforms (a) with the one or the other of the different meanings of the legal norm, (b) with the will of the norm creating authority that is to be determined somehow, (c) with the expression which the norm-creating authority has chosen, (d) with the one or the other of the contradictory norms; or (e) the concrete case to which the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other. In all these cases, the law to be applied constitutes only a frame within which several applications are possible, whereby every act is legal that stays within the frame". Again in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552, held that it is not the function of the court to supply the supposed omission, which can only be done by Parliament. In our opinion, legislative surgery is not a judicial option, nor a compulsion, whilst interpreting an Act or a provision in the Act.
9. Now the relevant provisions of the Act are required to be examined. By U.P. Act No. XXXVIII of 1958, the Act was amended. The relevant provisions are quoted below:-
Section 2 (2-A)- 'Consolidation area' means the area, in respect of which a notification under Section 4 has been issued, except such provisions thereof to which the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950 do not apply.
(8) 'Publication in the unit' or 'publish in the unit' with reference to any document means reading out of the document in the unit on a date of which prior notice shall be given by beat of drum, and proclamation by beat of drum, or, in any other customary mode, in the unit of the fact that the document is open to public inspection at an appointed place and time.
"5. Effect of declarations.- (1) Upon the publication of the notification under sub-section (2) of Section 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 Section 52 or sub-section (1) of Section 6, as the case may be, ensue in the area to which the notification under Section 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 the Settlement Officer Consolidation previously obtained shall-
(i) .....
(ii) transfer by way of sale, gift or exchange his holding or any part of it in the consolidation area.
45-A. Penalty for contravening provisions of Section 5.- (1).....
(2) A transfer made in contravention of the provisions of Section 5 (1) (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. The relevant portion of the provisions of Section 4, as it was in 1982 is quoted below:-
4. Declaration and notification regarding consolidation.- (1) (2) (a) When the State Government decides to start consolidation operations, either in an area covered by a declaration issued under sub-section (1) or in any other area, it may issue a notification to that effect.
(b) Every such notification shall be published in the official Gazette and in each unit in the said area.
11. Section 5 (1) (c) (ii) of the Act imposes a restriction on transfer by way of sale, gift or exchange of the holding or any part of it in the consolidation area, except with prior permission of Settlement Officer Consolidation. The consolidation area has been defined as "the area in respect of which a notification under Section 4 has been issued". Mode of issuing notification under Section 4 has been provided under Section 4 (2) (b) by publishing the notification in the official Gazette and in each unit in the said area. Under Section 2 (8) of the Act, publication in the unit has to be made by reading out, the document in the unit on a date of which prior notice shall be given by beat of drum, and proclamation by beat of drum, or, in any other customary mode, in the unit of the fact that the document is open to public inspection at an appointed place and time. Thus so long as notification is not published in the unit the restrictions imposed upon Section 5 (1) (c) (ii) of the Act will not apply. Use of different words under Section Section 5 (1) and 5 (2) of the Act are nothing to do with the restriction for transfer, which has been imposed in the consolidation area, which has a definite meaning under the Act. In the cases relied upon by the counsel for the petitioners, this Court has rightly held that so long as notification under Section 4 (2) (b) of the Act is not made in the unit, the restrictions under Section 5 (1) (c) (ii) will not apply. I do not find any reason to take a different view. Admittedly notification under Section 4 (2) (b) of the Act, in the unit was made on 24.09.1982 and sale deeds were executed on 04.09.1982 as such these sale deeds are not invalid under Section 45-A (2) of the Act. The consolidation authorities have illegally ignored the sale deeds of the petitioners, in spite of the fact that its due execution was found to be proved.
9. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The orders of Consolidation Officer dated 25.04.1986, Settlement Officer Consolidation dated 17.07.1989 and Assistant Director of Consolidation dated 08.03.1990 are set aside. The Consolidation Officer shall give effect to the sale deeds dated 04.09.1982 executed by Ram Ratan in favour of the petitioners, in the consolidation records.
Order Date :- 09.12.2013 mt