Allahabad High Court
Mool Chandra Son Of Chimman, Nanik Chand ... vs Deputy Director Of Consolidation And ... on 28 March, 2007
Equivalent citations: 2008(1)AWC849
Author: Vikram Nath
Bench: Vikram Nath
JUDGMENT Vikram Nath, J.
1. Supplementary affidavit filed today be taken on record.
2. Heard Sri B.B. Paul, learned Counsel for the petitioners and Sri P.K. Misra, learned Counsel for the respondent No. 5
3. Pursuant to the sale deed dated 18.11.1989 alleged to have been executed by respondent No. 5 in favour of the petitioners, the Assistant Consolidation Officer vide order dated 29.11.1990 passed an order of mutation with the consent of the parties directing for recording the name of the petitioners after deleting the name of respondent No. 5 along with an appeal was filed against the said order by respondent No. 5 along with an application for condonation of delay. The said application of delay was allowed on payment of cost of Rs. 50/- by order of the Settlement Officer Consolidation dated 20.2.1995. Further by order dated 8.2.2005 the Settlement Officer Consolidation allowed the appeal respondent No. 5 and after setting aside the order of the Assistant Consolidation Officer for a fresh decision after affording opportunity of leading evidence to the parties and giving them an opportunity of hearing. Against the said order of Settlement Officer Consolidation dated 8.2.2005 the petitioners preferred a revision before the Deputy Director of Consolidation which has been dismissed by the impugned order dated 1.3.2007.
4. Sri B.B. Paul, learned Counsel for the petitioners has submitted that in the sale deed executed on 18.11.1989 respondent No. 5 had specifically averred that he had adopted/embraced Baudh religion and that he did not belong to the Scheduled Caste. Further respondent No. 5 gave statement in the court of the Assistant Consolidation Officer that his name be deleted and the name of the petitioners may be recorded. In this backdrop of the matter respondent No. 5 could not have filed appeal alleging that he belongs to the Scheduled Caste category and, therefore, the sale deed in favour of the petitioners is hit by Section 157-A of Zamindari Abolition and Land Reforms Act, 1950 (in short referred to as U.P. Act No. 1 1951) and secondly that he had not signed on the compromise before the Assistant Consolidation Officer. It is also submitted by Sri Paul that the Settlement Officer Consolidation has recorded specific findings both in favour of the petitioners and also against the petitioners which are binding on the Consolidation Officer and may ultimately influence his decision. According to him there was nothing left for the Consolidation Officer to decide. Sri Paul has further submitted that the sale deed had been executed after obtaining necessary permission from the Settlement Officer Consolidation and after the notification under Section 4 of the U.P.| Consolidation of Holdings Act, 1953 (in short referred to as UP CH Act) wak published the provisions of U.P. Zamindari Abolition & Land Reforms Actl950 (in short referred to as U.P. Act No. 1 of 1951) had no application and the permission given by the Settlement Officer Consolidation was all that, that was required and no permission was required under Section 157-A of U.P. Act No. 1 of 1951. According to him after the notification under Section 4(2) of the U.P. CH Act has been published the responsibility of maintaining the record and the right to prepare the village book, receipt book and the annual register was to be performed by the Deputy Director of Consolidation and, therefore, the provisions provided under the UP CH Act alone can be looked into and no provisions from the UP Act No. 1 of 1951 can be taken into consideration and further that the provisions of UP Act No. 1 of 1951 shall remain suspended for the said period during which consolidation is going on so that there may not be any overlapping between the provisions of the two Acts.
5. On the other hand Sri P.K. Misra, learned Counsel for the respondents has submitted that the order of remand was passed by the Settlement Officer Consolidation with certain observations in the light of which the Consolidation Officer was to decide the matter afresh on merits after permitting leading of evidence by the parties and after affording them an opportunity of hearing. The observation made by the Settlement Officer Consolidation in his remand order was only with the purpose of satisfying itself as to whether the case of remand is made out or not and in any view of the matter if there be any observation or findings recorded by the Settlement Officer Consolidation which in the opinion of the Court would cause any kind of influence on the Consolidation Officer, such observation or findings may be declare j to be not binding upon the Consolidation Officer and he may proceed to decide the matter on the basis of the evidence which may be brought on record. Further with regard to the contention of the learned Counsel for the petitioners that the permission granted by the Settlement Officer Consolidation was enough and no permission of the Collector was required under Section 157 A of U.P. Act No. 1 of 1951, it has been submitted that as the petitioners and the respondent No. 5 at that stage were colluding with each other and in the sale deed itself there was mention that respondent No. 5 was not a member of the Scheduled Caste and, therefore, there was no occasion at that stage to obtain any permission from the Collector under Section 157-A of the UP Act No. 1 of 1951. Further even the Settlement Officer Consolidation also did not have an occasion to look into this aspect of the matter as the vendor had taken a stand that he did not belong to the Schedule Caste. In case if this fact had been brought to the notice of the Settlement Officer Consolidation then he would have examined this aspect or would have relegated the matter to the Collector. Further there is another issue as to whether the petitioners belong to backward caste or Scheduled Caste. According to Sri Misra in either case ^he consequence thereof, under Sections 166 and 167 of the UP Act No. 1 of 1951 would be that the land would be deemed to have vested in the State Government. According to Sri Misra the respondent No. 5 had never put his signature on the compromise and the proceedings before the Assistant Consolidation Officer were fraudulent.
6. Having considered the rival submissions made by the learned Counsel for the parties in my opinion two basic questions appear which need to be decided by the Consolidation courts. The first question would be as to whether respondent No. 5 had signed on the compromise before the Assistant Consolidation Officer and secondly to which caste the petitioners and the respondent No. 5 belong. These questions have not been decided by any Court based on evidence. In fact evidence in its true sense has not been led by any of the parties on any of the questions. Further all these questions are questions of fact and can be decided only after taking evidence for which the matter should be sent to the trial court, i.e., the court of the Consolidation Officer where sufficient opportunity may be available to the parties. "Therefore, apparently there does not appear to be any justification to entertain this writ petition for interference with the order of remand passed by the Settlement Officer Consolidation as affirmed by the order of the Deputy Director of Consolidation.
7. With regard to the next submission what the petitioners is trying to canvass is that Sections 157-A, 166, 167, 168, etc. of the UP Act No. 1 of 1951 which provides for the; restrictions with regard to the transfer of land and its consequences would not be applicable during the consolidation proceedings, and even a Scheduled Caste tenure holder can execute sale deed in favour of a person not belonging to Scheduled Caste during consolidation operations, after the notification under Section 4 of the UP CH Act has been published. The said submission is not only misconceived but is absurd.
8. The UP Act No. 1 of 1951 was enacted with the following object:
on Act to provide for the abolition of the Zamindari system which involves intermediaries between the tiller of the soil and the State in the Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith.
9. Where as UP CH Act was enacted with the primary object of consolidation of agricultural holdings for the development of agriculture. The objects and reasons of the said Act runs as under:
After the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, there was naturally a pressing demand for the consolidation of holdings in the State. Since the complicated and numerous types of tenures, both proprietary and cultivatory, the greatest stumbling block in the way of successful consolidation of holdings, have been abolished it is an opportune time to start this work. The advantages of having in compact blocks all the lands farmed by one family need only be briefly mentioned. Boundary lines would be reduced in number and extent, saving land and diminishing boundary disputes, larger fields would be possible and time saved in making trips to the fields. Further if land were all in one piece, barriers, such as fences, hedges and ditches could be erected to obtain privacy and prevent trespassing, thieving and gleaning. The control of irrigations and drainage water would be easier control of pests, insect and disease would also be less difficult.
10. From the above it is clear that the UP CH Act had only limited role to play and that is only with regard to the consolidation of agricultural holdings to facilitate better quality of agriculture, whereas the UP Act No. 1 of 1951 dealt with all aspect including the acquisition of interests of intermediaries and its consequences, vesting of land in Gaon Sabha, its superintendence by the Land Management Committee, tenurial rights, classes of tenure, transfers, devolution, division, extinction of rights, rent, ejectment, conferment of rights etc.
11. The UP CH Act does not deal with the grant of substantive rights to be given to the tenure holders. Therefore, it is clear that substantive rights are to be governed by the provisions contained in the UP Act No. 1 of 1951. The UP CH Act is only procedural with regard to the consolidation of holdings.
12. After start of consolidation proceedings the revenue court or the civil court cannot decide claims to land and such pending proceedings are to abate in view of Section 5 of the UP CH Act. The abatement is only for adjudication of rights by the Consolidation Courts with regard to pending cases. Further bar is only that fresh institution of cases may be made before the Consolidation Courts under Section 9/12 of the UP CH Act. The Revenue Court and Civil Court may not entertain such matters during consolidation period. The UP CH Act does not provide for devolution, restriction on transfer, extinction of rights, conferment of rights, classes of tenure, etc.
13. The effect upon notification under Section 4 or 4(A) of the UP CH Act is given in Section 5 of the UP CH Act. From a reading of these Sections in particular Section 5 it is clear that the effect of notification is only for maintenance of records, permission from Settlement Officer Consolidation for change of use of the holding, pending proceedings with regard to declaration of rights or interest in any land or for adjudication of rights in regard to which proceedings can or ought to be taken under the UP CH Act, shall abate. No other effect of the start of consolidation operations is given.
14. In view of the aforesaid discussion the submission of the learned Counsel for the petitioners is rejected.
15. Further as the correct facts were not placed before the courts below, therefore, this fact whether or not the sale deed was hit by Section 157-A of the U.P. Act No. 1 of 1951 could not be looked into by the Settlement Officer Consolidation while granting permission and, therefore, this aspect of the matter is also to be examined and if the sale deed is found to be hit by Section 157-A of U.P. Act No. 1 of 1951 the sale deed would be void under Section 166 of U.P. Act No. 1 of 1951 and the land would vest in the State under Section 167 of the UP Act No. 1 of 1951. In such event neither the petitioners nor the respondent No. 5 would be entitled to such land. However, in case respondent No. 5 had transferred the land in dispute for consideration the petitioners at best would be entitled to file a suit for compensation or for recovery of money against respondent No. 5.
16. In view of the foregoing discussion the writ petition lacks merit and is accordingly dismissed.