S. R. Misra, J. - (1.) THE main controversy in this case is as to whether a sale deed executed during the course of proceedings under the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) without the permission of the Settlement Officer (Consolidation) under section 5 (i) (ii) (c) of the Act is a void transaction ; and, what will be the effect of such a sale.
(2.) TO appreciate the controversy, the relevant pedigree is given below :- JUDGEMENT_192_AWC1_1993Image1.jpg The dispute relates to khata no. 13, which was recorded in the name of Khushi Ram, respondent no. 5, Geetam Singh and Smt Hukma widow of A tar Singh in the basic year The share of Khusi Ram and Geetam Singh was 1/4 each whereas that of Atar Singh and after his death, his widow Smt. Hukma was half in the said khata in dispute. Smt. Hukma had only one daughter and admittedly, Hukma executed a registered will in favour of respondent no 4 on 21-12-1978 and in her turn respondent no. 4 executed a registered sale deed in favour of the petitioners. Khushi Ram respondent no. 5 based his claim on an unregistered will dated 25-2-1980 alleged to have been executed by Smt Hukma in his favour. When the Consolidation proceedings commenced, three sets of objections were tiled-one by the petitioner to the effect that the respondent no. 4 has executed a sale deed in his favour in pursuance to an agreement to sell. There has already been an agreement to sell. The khata its dispute and the respondent no. 4 in pursuance of the said agreement, had already parted with the property in dispute. So they prayed their names to be recorded in the revenue papers over the disputed khata on the basis of the said sale deed. The second objection was filed by the respondent no 5 claiming that his name be recorded in place of Smt. Hukma on the basis of an unregistered will executed by the mother of respondent no. 4. i.e, Smt. Hukma. The third objection was filed by respondent no. 4 claiming that her name be recorded over the land in dispute as the mother of Smt Shanti Devi had executed a will in her favour. The Consolidation Officer by his order dated 24-8-1982, recorded a finding that Smt. Hukma had executed a will in favour of her daughter Smt. Shanti Devi, respondeat so. 4, and, therefore, the respondent no. 4 was held to be entitled for Bhumidhari share to the extent of half in the property in dispute. The Consolidation Officer also considered the alleged sale deed in favour of the petitioners by the respondeat no. 4, namely, Smt. Shanti Devi and held that she notification under section 4 (2) of the Act was made on 16th May 1931 and since the sale deed is subsequent to the notification, having been obtained without the permission under section 5 (J) (ii) (e) of the Act, the same is illegal He also disbelieved the contention of the petitioners that the application for permission was not rejected and kept in abeyance. In fact, he cams to the conclusion that the application for permission was rejected. He also held that the respondent no 4 had never relinquished her interest in the land in dispute in favour of respondeat no. 5. Separate appeals were filed by the petitioner and the respondent no. 5 against the aforesaid order of the Consolidation Officer. The appellate court also did not accept the contention of the petitioners that there was an agreement to sell in pursuance of which he came in possession over the disputed land. It was further held that the order pertaining to permission under section 5 (1) (i) (c) of the Act was just and proper and the sale deed executed by respondent no. 4 could not confer any right on the petitioners. On this finding, the appeal of the petitioners was dismissed. However, the appeal filed by respondent no. 5 was allowed. Aggrieved, the petitioner went in revision and being unsuccessful, has come up before this court by means of the present writ petition. Sri G. N. Verma, learned counsel for the petitioner vehemently contended that the view of the Consolidation Authorities that application for permission to sell under section 5 (1) (c) of the Act was not kept in abeyance but rejected, is absolutely wrong. In fact, the order dated 18-9-1981 was a conditional order. According to Sri Varma the respondent no. 2 was ready and willing to grant permission and since the petitioners are in possession in pursuance of the agreement to sell with effect from December 1980, whereas the consolidation proceedings started in May 1981, he became the Bhumidhar of the land in dispute under section 146 of the U. P. Zamindari and Land Reforms Act and he was not required to take further permission under section 5 (1) (c) of the Act. He farther contended that the subordinate authorities have misread the order of the respondent no. 2 and it cannot be said to be an order of rejection The will of the respondent no. 4 having been established, she became the owner of the land in dispute and she having executed the sale deed In favour of the petitioner, the petitioner is entitled to the relief claimed in the objection. The Consolidation Authorities have clearly erred in deciding the case against the petitioner. In support of his contention he relied upon Dy. Director of Consolidation v. Din Bandhu Rat, 1964 ALJ 247. In that case, Hon'ble Supreme Court while interpreting section 16 (a) (2), which is parimateria. with section 5 (o) (ii) of the Act, held that the permission cannot be refused which should normally be granted. In that case, the application for permission was filed for transfer by way of exchange. The Settlement Officer (Consolidation) refused permission against which the transferee came up before this Court by way of writ petition which was dismissed, in Special Appeal, the claim of the petitioner was allowed and permission granted. It was held by Hon'ble Supreme Court that if the terms of section 16-A (2) were borne in mind it is clear that where and application fell within the terms of section 16-A (i), the Settlement Officer is enjoined to allow the application unless the conditions laid down in the last portion of sub-section (2) were satisfied. The condition is that the officer should be satisfied that the proposed transfer is likely to defeat the scheme of consolidation. Apart from the aforesaid case law, Sri Varma also relied upon few Full Bench cases ; such as AIR 1971 Alld. 307; 1976 RD 420 and 1971 RD 24 etc.
(3.) I have considered the arguments advanced by learned counsel for both the parties. Sri Tej Pal, learned counsel for the respondents contended that the sale deed having been executed without permission of the Settlement Officer (Consolidation), the same is void ab initio. The provisions of section 5 (1) (ii) (c) of the Act having been amended there is complete bar in executing a sale deed without the permission of the SOC and the decision relied upon by the learned counsel for the petitioner reported in 1964 ALJ 247 (Supra) will have no application to the facts of the present case. According to him, there is no prayer in the writ petition nor any relief has been sought for the effect that the Settlement Officer (Consolidation) may be commanded to grant permission or the so called refusal be quashed. He placed reliance on a decision reported in 1981 RD-22, where the learned Single Judge after considering the Full Bench decision reported in AIR 1974 Alld. 106, came to the conclusion that the Full Bench did not take note of the Amending Act of 1974. As regards the legality or illegality of the sale deed is concerned, learned counsel cited a decision reported in 1987 RD wherein it was held that such transaction is void. He urged that any judgment which is rendered in ignorance of Statute shall be per incuriam in view of the decisions reported in R. A. Antuley v. S. R. Naik, AIR 1988 SC 1531 and AIR 1991 SC 188. According to him, the findings recorded by the courts below are those of fact and this court may not Interfere with those findings in the writ jurisdiction. In support of this contention as well, he cited few case laws. From the perusal of the decision of Hon'ble Supreme Court in 1964 ALJ (Supra) and the amendment by Act No. 34 of 1974, it is clear that the Hon'ble Supreme Court considered the provisions of section 16-A (i) and (ii) and those provisions do not exist any more. Section 5 (i) (c), which is relevant for the purpose of the present case, is quoted below :- "Notwithstanding anything contained in the U. P. Zamindari Abolition and Land Reforms Act, 1950, no tenure holder, except with the permission in writing of 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 ; or (ii) transfer by way of sale, gift or exchange his holding or any part thereof in the consolidation area. The respondent nos. 1 to 3 have come to the conclusion that in the absence of permission of the Settlement Officer (Consolidation) as required under the Act, the alleged sale deed will not confer any right on the petitioners. I do not find that any apparent error has been committed by the Consolidation authorities in coming; to the conclusion as is clear from the provisions of section 5 (1) (ii) (o) of the Act that in the absence of permission for grant of sale, the transaction will be a void transaction and transferee cannot get any right on the basis of such a transaction In 1981 RD 22 and 1987 RD-200, this Court has held that in the absence of permission for sale, a transaction without obtaining the permission will be a void transaction. As regards the case of the petitioners that they were delivered actual physical possession in pursuance of an agreement to sell in the year 1980 and this will amount to sale under section 164 of the U. P. Zamindari Abolition and Land Reforms Act, the Consolidation Authorities have recorded a clear cut finding and disbelieved the case of the petitioners that there was an agreement to sell entered into between the petitioners and the respondent no. 4 and that they were delivered possession in pursuance of the said agreement. This theory of the petitioners having been disbelieved, the said finding will be a finding of fact. The Consolidation Authorities have also come to the conclusion that in fact the application for permission for sale was rejected and it was not kept in abeyance. Dy. Director of Consolidation has also come to the conclusion that the will executed in favour of respondent no. 5 is a valid document. This finding is based on the admission of the respondent no. 4 that the will in favour of respondent no 5 is a genuine one. This finding may be relevant so far as respondent nos. 4 and 5 are concerned. However, it is not necessary to gp into that aspect of the matter regarding genuineness of unregistered will in favour of respondent no. 5 but it may have a relevancy with respondeat no. 4. However, since I am of the view that the petitioners having failed to establish their title in the absence of permission as required under section 5 (1) (ii) (c) of the Act, they have not derived any title in respect of khata. no. 13 and, therefore, the question of considering the right of respondent no. 5 may not be relevant. ;