Raj Singh vs Dy.Director of Consolidation,Saharanpur and Others

R.H. Zaidi, J.—By means of this petition under Article 226 of the Constitution of India, petitioner prays for a writ order or direction in the nature of certiorari quashing the order dated 20197 passed by respondent No. 1 Dy. Director of Consolidation, whereby revisions filed by the petitioner under Section 48 of the U.P. Consolidation of Holdings Act, for short ''the Act'', were dismissed.

Subjectmatters of dispute in the present case is the Khatas No. 24 and 52 of village Chaura district Saharanpur, hereinafter referred to as the land in dispute. In the basic year, the land in dispute was recorded in the names of Ram Dia, Mahabir & Raj Singh s/o Balbeer and Smt. Mangala Devi. Four sets of objections were filed before the Asstt. Consolidation Officer. First objection was filed by Navin Kumar s/o Ram Daya for mutation of his name in place of his father over 1/3 share, second by Mahabeer, who claimed that three sons of Dalbeer Singh i.e. Mahabeer, Raj Singh and Ram Daya have equal shares i.e. 1/3 share each, third objection was filed by Smt. Mangala Devi and Raj Singh, who claimed that Smt. Mangala was entitled to 1/2 share and other 1/2 own by Ram Daya, Mahabir & Raj Singh & fourth objection was filed by Sanjay Singh s/o Mahabeer, who claimed his Bhumidhari rights in plots No. 240 to 243, 280, 25 to 258 of Khata No. 52 measuring 11 Bighas 5 Biswas 19 Biswansi on the basis of the saledeed dated 22781 executed by Suresh Kumar and Virendra Kumar and saledeed dated 30781 executed by Raj Singh in his favour.

The objections were contested by the parties, who had also led evidence in support of their cases. The dispute before the Consolidation Officer was thus regarding the determination of shares of the parties in the land in dispute and the validity of the saledeeds, which were basis of the claim of Sanjay Singh. The Consolidation Officer by his order dated 6989 rejected the claims/objections filed by Sanjay Singh holding that the sale deeds were executed after Notification under Section 4 of the Act without prior permission of the Settlement Officer of Consolidation, they were, therefore, invalid. He has also determined the shares of the parties in the land in dispute.

Aggrieved by the judgment and orders passed by the Consolidation Officer, three appeals were filed by Sanjay Singh, Raj Singh and Smt. Mangala. The Settlement Officer of Consolidation by its judgment and order dated 3994 allowed the appeal filed by Sanjay Singh holding that the saledeeds relied upon by him were valid. He was thus entitled to his share in the land in dispute on the basis of the same. The shares of the parties were also determined. Challenging the validity of the order passed by Settlement Officer of Consolidation, three revisions were filed, two by Raj Singh and the third by Smt. Mangala. The Dy. Director of Consolidation dismissed all three revisions and upheld the validity of the order passed by Settlement Officer of Consolidation. Challenging the validity of the order passed by Dy. Director of Consolidation, the present petition has been filed by the petitioner. A caveat on behalf of Sanjay Singh and Mahabir was filed by Sri A.I. Naqvi, advocate.

5.1 have heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner did not challenge the determination of shares of the parties in the land in dispute by the authorities below. He has only challenged the validity of the orders passed by the Dy. Director of Consolidation and Settlement Officer of Consolidation in so far they upheld the validity of the saledeeds relied upon by Sanjay Singh. It was contended that the Notification under Section 4 of the Act was published in the Gazette on 22681 and the saledeeds were executed after the date of Notification without obtaining permission from the Settlement Officer of Consolidation. In view of provisions of Section 5 of the Act, the saledeeds were invalid and were liable to be ignored.

On the other hand, learned counsel appearing for contesting respondents supported the validity of the orders passed by the authorities below. It was contended that the Notification was published in the unit on 12881 i.e. after execution of the saledeeds therefore, it was not necessary to obtain the permission of the Settlement Officer of Consolidation.

I have considered the submissions made by the learned counsel for the parties and also perused the record.

The pedigree of the family of the parties, for the purposes of the present case, is relevant, which is reproduced below:

Pratap

Nanak BhagwanDiedissuless

Balmeer Daya Ram Chhattar Surajmal

Mahabir Raj Singh Ram Diaya

Sanjai Singh (Smt. Mangala)

Navin Kumar

It is apparent from the record of the case that it was on 22 780 that Smt. Mangala sold her share in Khata No. 52 to Suresh Kumar & Virendra Kumar and Suresh Kumar and Virendra Kumar have executed a saledeed transferring their shares in favour of Sanjay Singh respondent No. 4. Another saledeed was executed by Ram Singh, whereby he has transferred his share in Khata No. 52, except plot Nos. 56, 58 and 60 in favour of Sanjay Singh. Admittedly, the Notification was published in the official gazette on 22681 and the same was published in the unit i.e. village in question on 12881. The question, which arises for determination before this Court, is as to whether in view of the aforesaid facts, it was necessary for Suresh Kumar & Virendra Kumar to obtain permission from the Settlement Officer of Consolidation before execution of the saledeeds in favour of respondent No. 4. Section 4 of the Act provides as under:

"4. Declaration and Notification regarding Consolidation .(1) (a). The State Govt. may, where it is in opinion that a district or part thereof may be brought under Consolidation operations, made a declaration to the effect in the Gazette, whereupon it shall become lawful for any officer or authority who may be empowered in this behalf by the District Deputy Director of Consolidation

(i) to enter upon any survey, in connection with rectangulation or otherwise, and to take levels of any land in such area;

(ii) to fix pillars in connection with rectangulation; and

(iii) to do all acts necessary to ascertain the suitability of the area for consolidation operations.

(b) The Distt. Deputy Director of Consolidation shall cause public notice of the declaration issued under clause (a) to be given at convenient places in the said district or part thereof.

2(a) When the State Govt. decides to start Consolidation operations, either in an area covered by a declaration issued under subsection (1) or in any other, it may issue a notification to this effect.

(b) Every such notification shall be published in the official gazette and in each unit in the said area.

Term ''unit'' used in clause (b) of Section 4 has been defined under subsection (IIA) of Section 3 as under:

"(1A) ''Unit'' means a village or part thereof and where the Director of Consolidation so notices by publication in the official Gazette two or more villages or parts thereof for which a single scheme of Consolidation is to be framed."

Clause (c) of subsection (1) of Section 5 of the Act is also relevant for the purposes of the present case, which is reproduced below:

"5(1) (c) : Notwithstanding anything contained in U.P. Zamindari Abolition and Land Reforms Act, 1952 no tenureholder, except with the permission in writing of Settlement Officer (Consolidation) previously obtained shall

�(i)...........

(ii)................transfer by way of sale, gift or exchange any part of his holding in the Consolidation area except with the permission in writing of the Settlement Officer (Consolidation)."

From a plain reading of the aforesaid statutory provisions, it is apparent that after publication of the Notification in the official gazette bringing a district or part thereof under Consolidation operation and its public notice on convenient places in the said District or part thereof and its publication in each unit in the said area, no tenureholder is entitled to transfer by way of sale or gift or exchange his holding or part thereof.

In the present case, it is no doubt correct that the Notification under Section 4 was published in the official gazette on 22681, but the same was not published in the unit in question till 12881 nor there is any evidence on record to show that any public notice of the said declaration was given at convenient places in the unit in question before 12881. The intention of legislature, which is apparent from the aforesaid provisions is that till the Notification is brought to the notice of the tenureholder living in the particular unit, the consequence as enumerated under Section 5 of the Act shall not ensue. In Padam Chand Sharma v. State of U.P, 1992 AWC 1253, a Division Bench of this Court had the occasion to consider and decide the question regarding date of publication in official gazette. Question was that what was the date of publication of notification ? Whether it is the date on which gazette published or the date on which it is printed or the date on which it is made available to the public, this Court was pleased to rule as under:

"To publish means to declare publicly and to make known to the public. Publication means communication to the public. The object of publication of notice fixing date, time and place for hearing of the objections, is to make it known to the objectors so as to enable them to appear before the Hearing Authority and lead evidence in support of their objections. Publication of the notice in Gazette, as such is not complete till it is printed in the Gazette and the Gazette containing the notice is made available to the public. Date which the Gazette bears or the date on which it is printed cannot thus be said to be the date of the publication. A Division Bench of this Court in the case of U.S. Awasthi v. Union of India, 1975 UPTC 444, while considering the similar question as to when publication of notice in the Gazette is complete has laid down as follows:

"The publication of notice in the official Gazette within the meaning of Section 269E will obviously be publication as contemplated by subsection (1) of Section 269D namely, that the notification not only must be printed in the Gazette, but the Gazette containing the notification must also be availed to the public within the statutory period."

The ratio of the aforesaid decision is fully applicable in the present case, therefore, in my opinion, till 12881 when the Notification was published in the unit, the provisions of Section 5 of the Act will have no application. Both the saledeeds in question were executed in favour of respondent No. 4 before 128 81, therefore, the authorities below did not commit any error of law or jurisdiction in upholding the validity of the said sale deeds.

Apart from what has been stated above, the petitioner himself executed saledeed dated 30781 in favour of respondent No. 4, after receiving valuable consideration, the execution of which has been proved in accordance with law. The authorities below have recorded concurrent finding to that effect. The petitioner is thus estopped from challenging the validity of the said sale deeds. He has also got no locus standi to file the present petition and the writ petition filed by him is legally not maintainable. It may also be noted that Suresh Kumar and Virendra Kumar which have executed the other saledeed in favour of respondent No. 4 on 30781, did not challenge the validity of the saledeed on any ground.

In view of the aforesaid discussion, the writ petition has got no merit. The same fails and is dismissed in limine.