Supreme Court

Suraj Pal (D) thr. L.R. Vs. Ram Manorath and Ors.

MANU/SC/0978/2017

11.08.2017

Property

If land holding is not subject to consolidation proceedings then, permission of Settlement Officer is not required before transferring the same.

In instant case, admitted facts are that, the suit property was land used as 'Abadi' and was declared 'Chakout' (meaning out of consolidation scheme) after preliminary survey was conducted. Four brothers were co-tenure holders of the land in dispute. One brother executed a sale deed of his 1/4th share in favour of Respondents-Defendants. The remaining three brothers filed a suit for permanent injunction against the Respondents-Defendants alleging that, the sale is void since, no permission of the Settlement Officer (Consolidation) as envisaged under Section 5(c)(ii) of Uttar Pradesh Consolidation of Holdings Act, was obtained. They also claimed that, they are in possession of suit property and Respondents-Defendants are trying to make construction on land and had illegally constructed a 'kothari' on suit property. The Respondents-Defendants claimed that, they were in possession but denied that, they had raised any structure and submitted that, since the land was not subject to the consolidation scheme, no permission of the Settlement Officer (Consolidation) was necessary.

The suit was dismissed by the Trial Court mainly on ground that, no permission of Settlement Officer (Consolidation) was required since, land was outside the consolidation scheme. Plaintiffs filed an appeal. The first appellate court allowed the appeal holding that, Section 5(c)(ii) of the Act, was applicable and since, no permission in terms thereof had been obtained, the sale deed was void and ineffective. Thereafter, the Defendants filed second appeal which was dismissed.

Thereafter, review petition was filed mainly on ground that, since the land in dispute did not form part of the consolidation scheme, permission under Section 5(c)(ii) of the Act was not required. The learned Single Judge concluded that, no permission was required to sell the land in question. The review petition and appeal were allowed by the impugned order. The Appellants is challenging the impugned judgment on ground that, trial Court has reopened the matter and gone beyond the scope of review and that, though the land may not be allotted under the consolidation scheme, it still is the part of the holding and would be covered by Section 5 of the Act.

As far as the scope of review is concerned, if a Court finds that, it has committed an error, which is apparent on the face of record and that error is pointed out to it in a review petition, there is nothing which prevents the Court from correcting the error. In the judgment initially passed by the learned Single Judge, the Court did not take into consideration the arguments raised that this portion of land was 'chakout' and therefore, was not part of the consolidation scheme. Therefore, Single Judge was justified in reconsidering the matter.

According to provisions of Section 5(c) of the Act, 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 use his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including, pisciculture and poultry farming; or transfer by way of sale, gift or exchange any part of his holding in the consolidation area. 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 under Sub-section (2) of Section 4 of Act.

The purpose of a consolidation scheme is to provide consolidation of agricultural holdings. Abadi land, groves etc. are kept outside the scope of consolidation scheme. They cannot be re-allocated or re-allotted to any other person. Therefore, they are not subject matter of the consolidation scheme. The intention of introducing Section 5(c)(ii) of the Act was that, if the land holding is subject to consolidation proceedings then permission of the Settlement Officer (Consolidation) is required before the same is transferred. This is so because if the land, which is subject matter of consolidation proceedings, is sold or permitted to be transferred during consolidation proceedings, it could affect the entire consolidation scheme. However, if the land is not subject matter of the consolidation scheme, though it may be part of the holding of the tenure holder, then no permission is required. Admittedly, the suit property was "Chakout" and outside the purview of the consolidation scheme as its value could not be taken into consideration while framing the scheme and it could not be allocated or allotted to any other person. There is no merit in the appeal and the same is dismissed by Supreme Court.

Tags : Land Allotment Scheme

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