Allahabad High Court
Ram Roop vs Deputy Director Of Consolidation, ... on 24 February, 1999
Equivalent citations: 1999(2)AWC1771, 1999 ALL. L. J. 1562, 1999 A I H C 3915, 1999 ALL CJ 1 591, (1999) 2 ALL WC 1771, (1999) REVDEC 387
Author: Shitla Prasad Srivastava
Bench: Shitla Prasad Srivastava
JUDGMENT Shitla Prasad Srivastava, J.
1. This petition under Article 226 of the Constitution or India has been filed by the petitioner for quashing the order dated 12.11.1998 passed by the Dy. Director of Consolidation.
2. At the time of admission. Sri M.A. Khan, Advocate has appeared to oppose the stay and admission both. A supplementary affidavit has also been filed by the petitioner.
3. Heard learned counsel for the parties at the admission stage. The brief facts as stated in the petition are that plot No. 1456 of village Bogana, Pargana Pachotar. District Ghazipur, was the subject-matter of the consolidation proceeding. It is stated by the petitioner that there are 8 divisions of the aforesaid plot. It appears that an application under Section 5 (1) (c) of the U. P. Consolidation of Holdings Act was filed by the respondents before the Settlement Officer. Consolidation. Ghazipur, seeking permission to construct a house. On this application, report was called for by the S.O.C. from the Consolidation Officer and the Assistant Consolidation Officer. They submitted report. On 12.3.1996 the Settlement Officer. Consolidation gave permission for construction of house on the aforesaid plot. The petitioner filed an objection against the order dated 12.3.1996. The respondent also filed objection against the aforesaid application. The Consolidation Officer rejected the application of the respondents for construction of house vide order dated 10.4.1996. A revision was filed by the respondents against this order. The Dy. Director of Consolidation allowed the revision on 12.11.1998. This order has been challenged by the petitioner in this writ petition.
4. It is argued by the learned counsel for the petitioner that the order of the S.O.C. is administrative in nature and no revision was maintainable before the D.D.C. and the jurisdiction under Section 5 (1) (c) of U. P. Consolidation of Holdings Act could be exercised when it was admitted to the parties that the part of the land on which the construction was sought to be made was of the applicant who applied for permission. It is Further submitted that unless the land was converted to abadi under Section 143 of U. P. Zamindari Abolition and Land Reforms Act, no building could be constructed and, further that the D.D.C. had no jurisdiction to give permission. It was only the S.O.C. who could grant the permission. Certain new grounds have been mentioned by way of filing a supplementary affidavit which is also to the same extent as mentioned above.
5. An objection was raised on behalf of the contesting respondents who had applied for permission that the petitioner has no right to oppose the application for permission under Section 5 (1) (c) nor has any right to file the present petition. His further submission is that once the permission was granted by the S.O.C., he has no authority to recall his order and review the same on the objection filed by a person who has no concern with the plot in question. As the order passed by the S.O.C. was without jurisdiction, therefore, the revision was maintainable and the D.D.C. has the same right as the subordinate authority had and the order passed by him does not suffer either from any error of jurisdiction or there is any error apparent on the face of the record. Sri S. K. Varma, in reply has submitted that even if the petitioner, has no title in respect of the plot for which the application was filed, the petitioner has a legitimate expectation that at the time of carvation of chak this plot can come to him, but if its nature was converted from agriculture to abadi and then construction is allowed, then it will not be given to the petitioner. Therefore, on the principle of legitimate expectation, the petitioner has right to object the permission granted to the contesting respondents under Section 5 (1) (c) and the S.O.C. has power to recall the same. For this purpose he has placed reliance on JT 1993 (3) SC 15. He has further submitted that Section 5 (1) (c) of the U. P. Consolidation of Holdings Act is only for the purpose of the permission to raise construction of temporary nature and it is not for the purpose of raising a permanent construction as by doing so the nature of the land shall be changed. His submission is that the application was vague, and there was no demarcation of the boundary of the land to fix the identity to which the respondents were to raise construction. He has tried to interpret the word "use" in Section 5 (1) (c) of the Consolidation of Holdings Act.
His submission is that "use" means temporary use and not of permanent nature and further that unless a declaration under Section 143 of the U. P. Zamindari Abolition and Land Reforms Act is made, one cannot raise construction over the land in question. His further contention is that aims and objects of the Consolidation of Holdings Act is not to change the nature of the land from being agricultural to any other purpose and with this intention the law of Consolidation of Holdings Act has come into existence.
6. Sri S.K. Varma learned counsel for the petitioner has urged that if a proper interpretation of the preamble is given to a particular Act then the aims and objects of the Act can be understood. For that purpose he has placed reliance on Bhikraj Jaipuri v. Union of India, AIR 1962 SC 113. In this case. Section 175(3). Government of India Act, 1935, has been dealt with and contract between Government and private individual was interpreted in the following terms :
"Where a statute requires that a thing shall be done in the prescribed manner or form but does not set out the consequences of non-compliance, the question whether the provision was mandatory or directory has to be adjudged in the light of the intention of the Legislature as disclosed by the object, purpose and scope of the statute. If the statute is mandatory, the thing done not in the manner or form prescribed can have no effect or validity ; if it is directory, penalty may be incurred for non-compliance, but the Act or thing done is regarded as good.
It is clear that the Parliament intended in enacting the provision contained in Section 175(3) that the State should not be saddled with liability for unauthorised contracts and with that object provided that the contracts must show on their face that they arc made on behalf of the State, i.e., by the Head of the State and executed on his behalf and in the manner prescribed by the person authorised.
It is in the interest of the public that the question whether a binding contract has been made between the State and a private individual should not be left open to dispute and litigation. The whole aim and object of the Legislature in conferring powers upon the head of the State would be defeated if in the case of a contract which is in form ambiguous, disputes are permitted to be raised whether the contract was intended to be made for and on behalf of the State or on behalf of the person making the contract. This consideration by itself would be sufficient to imply a prohibition against a contract being effectively made otherwise than in the manner prescribed. It is true that in some cases, hardship may result to a person not conversant with the law who enters into a contract in a form other than the one prescribed by law. It also happens that the Government contracts are sometimes made in disregard of the forms prescribed but that would not be ground for holding that departure from a provision which is mandatory and at the same time salutary may be permitted.
Hence, where a contract between the Dominion of India and the private individual is not in the form required by Section 175(3) it cannot be enforced and therefore, the Dominion of India cannot be sued by the private individual for compensation for breach of contract."
7. For the purpose of the definition of word 'use', he has placed reliance on Parkes v. Secretary of State, 1979 (1) All ELR 211, wherein the word 'use' has been defined. The relevant extract of that case is as under:
"The issue depends on the meaning of the word 'use' in Section 51 (1) (a) of the 1971 Act. Forbes, J. drew a distinction between carrying out 'operations' on land and making a 'use' of land. The local authority had no power, he said, to stop 'operations' being carried out on land. It only had power to stop the 'use' of the land. The Judge acknowledged that 'the deposit of refuse or waste materials on land' was a use of it, because it is so described in Section 22 (3) (b) of the 1971 Act. But the Judge said that in this case there was something more than the mere deposit of refuse or waste material, because Mr. Parkes not only stored the scrap there. He sorted it into separate heaps or piles of material, according to the size or nature of the bits of scrap. In that way he processed the scrap there. The Judge said that, if the scrap was ancillary to the processing, the whole thing would be the carrying out of 'operations' on the land, and being 'operations' it was not the 'use' of the land- So no discontinuation order could be made. The result was that Mr. Parkes could carry on there indefinitely.
It is further held that the Judge then gave a restricted meaning to the word 'use' in relation to land. He was led to this view by the definition in Section 290 of the 1971 Act. It says 'use' in relation to land does not include the use of land for the carrying out of any building or other operations thereon.
In the same case the word 'use' has also been considered at page 214 which is quoted herein below :
"The local authority consider, and understandably consider, that the use of part of the Derbyshire Dales as a scrap heap or a place for sorting scrap metal is detrimental to the amenities of the Peak District. They failed before the Judge by reason of the definition in Section 290 of the 1971 Act of the word 'use' a negative definition reading as follows : 'use' in relation to land, does not include the use of land for the carrying out of any building or other operations thereon. It is clear, as the learned Judge in his judgment points out that definition cannot be applied literally because if any operations on the land are excluded from the meaning of the word 'use' then this part of the 1971 Act loses its efficacy entirely and might as well not have been passed. Consequently some restriction must be placed on the apparent prima facie meaning of that definition section."
It seems to me in the particular circumstances of this case that it is unnecessary to decide what particular restriction needs to be applied, whether one should simply read into that definition the word 'similar' so it would read 'use' in relation to land, does not include the use of land for the carrying out of any building or similar operations thereon. Whatever restriction one applies, on the facts of this particular case it is perfectly plain that the storing and sorting of scrap metal comes within Section 51 (1) (a)."
8. His submission is that if the permission is granted under the Consolidation of Holdings Act for change of the holding or any part thereof from the purposes of agriculture, horticulture or animal husbandry, it means that it is of a temporary nature and not for using the land by raising construction of permanent nature.
9. The learned counsel for the contesting respondents has replied that when the consolidation had started of the agriculture holding then this provision has been made for permission to be granted to a person who wants to use his holding for any other purpose. As the word 'use' has only been used under Section 5 (1) (c), it shall not be deemed to mean that it is only for construction of temporary nature.
10. Sri Varma has further submitted that the scope of revision under Section 48 of the Act was very limited one. For that purpose he has placed reliance on Ram Dular v. Dy. Director of Consolidation, Jaunpur and others, 1994 RD 290. His submission is that the Dy. Director of Consolidation should not have allowed the revision as the provision of Section 5(1) (c) only authorises the Settlement Officer. Consolidation. He has placed reliance on Ram Avtar and others v. Ram Dhani and others. 1997 SCC 263, wherein it was held that the authority cannot resort to appreciation of evidence like appellate court. His submission is that when the Settlement Officer Consolidation has considered the fact and recalled the order granting the permission then the Dy. Director of Consolidation has no jurisdiction to interfere with the order as the order was interlocutory in nature and the application was not rejected but its disposal was postponed, therefore, no revision lies against the interlocutory order. His further submission is that the D.D.C. has not met out the reasonings given by the S.O.C. which was necessary. For that purpose he has placed reliance on S.V.R. Mudaliar v. Mrs. Rajabu F. Buhari and others, JT 1995 (3) SC 614, wherein it was held that before reversing a finding of fact, the appellate court has to bear in mind the reasons ascribed by the trial court. Reliance has also been placed on Svenska Handelsbanken v. M/s. Indian Charge Chrome and others. JT 1993 16) SC 189.
11. Before meeting the respective arguments of the learned counsel for the parties, it is necessary to quote the relevant Section, i.e., Section 5 (1) (c) of the Consolidation of Holdings Act which is as under :
"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) use his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry Including pisciculture and poultry farming :
Provided that a tenure-holder may continue to use his holding, or any part thereof for any purpose for which it was in use prior to the date specified in the notification issued."
12. To see the aims and objects of the Act the preamble has to be seen which is quoted herein as below :
"Whereas it is expedient to provide for the consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture."
13. From the bare perusal of the preamble, it will be clear that the holding is to be consolidated and there will be no restriction and the person having the holding cannot use land for any other purpose than agriculture holding but this restriction has been explained in Section 5 of the Act.
14. Section 5 of the Act deals with the effect of the notification under Section 4 (2) and sub-clause (c) of this Section deals with the prior permission before a person starts to use his holding or any part thereof for the purpose not connected with agriculture, horticulture or animal husbandry etc.
15. Section 3, sub-clause (5) defines land which is as under :
"Land means land held or occupied for purposes connected with agriculture, horticulture and animal husbandry (including pisciculture and poultry farming) and includes-
(i) the site, being part of a holding, of a house or other similar structure.
From the definition it is clear that the land includes besides being part of a holding, of a house or other similar structure.
16. Word 'holding' has also been defined under Section 3 (4) (c) as under:
"Holding means a parcel or parcels of land held under one tenure-holder by a tenure-holder singly or jointly with other tenure-holders."
17. Consolidation has been defined under Section 3 (2) which is as under:
"Consolidation means rearrangement of holdings in a unit amongst several tenure-holders in such a way as to make their respective holdings more compact."
So if all the three definitions, i.e., consolidation, holding and land are read together, then the building, house, site of a house or other construction shall be included in the definition of the land, therefore, it cannot be said that there cannot be any change in the land use or the land will not include the site of house or other similar structure.
18. Section 5 (1) (c) as said above only says that no tenure-holder except with the permission in writing of the Settlement Officer, Consolidation shall use his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry, etc. This section does not speak anywhere that there will be any proceeding for granting any such permission nor does it say that any person should be impleaded as party to any such proceeding.
19. Learned counsel for the petitioner has not pointed out any rule framed under the Act which deals with the procedure of granting any permission, therefore, to my mind, it is the right of every tenure-holder to apply for permission if he wants to use his holding or any part thereof for the purposes not connected with agriculture and as there is already definition of the land given in the Act which includes site of a house, it cannot be said that the permission cannot be granted for use of the holding for construction of a house of a permanent nature. To my mind, the purpose of the permission is only that if the land for which the change of the land use has been granted shall not be given to any other tenure-holder in allotment of chak proceeding but it does not restrict the construction of a permanent nature because every tenure-holder who is bhumidhar has a right to use any part of his holding under the Z. A. and L. R. Act for any purpose. The restriction under the Consolidation of Holdings Act is only that he should obtain a permission from the Settlement Officer. Consolidation. Therefore, the Settlement Officer. Consolidation rightly granted permission to the contesting respondent. The second question which has been argued by the learned counsel for the petitioner is that the S.O.C. has power to review his order and to suspend the permission. I am of the view that when Section 5 does not speak of any proceeding, rather it only says that the application for permission shall be moved which shall be granted by the Settlement Officer. Consolidation, then there is nothing in the rules that any person should be made as party to that application and he should have been given opportunity of being heard. The petitioner's claim that he has legitimate expectation to get the land in future in chak allotment proceeding ; is not based on sound reasons. The mere expectation or apprehension does not give any cause of action to any one unless there is some cogent reason for it. The contesting respondent applied for specific plot in which the petitioner has no right or interest. He was only having an expectation that he may get this property in future, therefore. I am of the opinion that he has no right to file any application or objection to recall the order, nor the S.O.C. has the authority to review his order and keep the application pending and suspend his order for the time being. So far as the order of the Dy. Director of Consolidation is concerned, the order passed by the S.O.C. was not interlocutory in nature as by suspending his order, he has closed chapter and it shall be deemed that it has rejected the application, therefore, the order shall be deemed to be a final in nature and revision was maintainable. Argument of the learned counsel for the petitioner that the D.D.C. has no jurisdiction to pass the order which was to be passed by the S.O.C. also does not stand on sound reasoning.
20. Section 44A of the Act says that powers of subordinate authority to be exercised by a superior authority, which is quoted herein as under :
"Where powers are to be exercised or duties to be performed by any authority under this Act or the rules made thereunder, such powers or duties may also be exercised or performed by an authority superior to it."
21. Therefore, the power which was to be exercised by the Settlement Officer, Consolidation under Section 5 (1) (c), it can be exercised by the Dy. Director of Consolidation. The grievance of the petitioner that he has not given specific area on which the construction is to be made is also not correct. As the petitioner has no right or interest in the plot for which permission has been granted and if the contesting respondent raises construction over any other area for which the permission was not granted, then the petitioner may raise any objection before the appropriate authority, therefore, there appears to be no error either in law or jurisdiction or any error apparent on the face of the record.
22. The petition has no force, it is dismissed.