M.H. Beg, J. - (1.) THE Petitioner Chidda Singh seeks a writ of certiorari from this Court for quashing the orders of the Settlement Officer (Consolidation) passed on 14 -3 -1963 and of the Deputy Director of Consolidation passed on 11 -6 -1963. The Petitioner's claim to be the tenure -holder and a cosharer in khatas Nos. 47, 49 and 50 of village Narainpur, Pergana and Tahsil Khafr, in the district of Aligarh, on the ground that he was a bonafide transferee who had obtained the sale deed dated 22 -1 -1962, of the rights of Smt. Kaushaliya, opposite party No. 9, for Rs. 2500/ - and had obtained possession of the share of Smt. Kaushaliya after the sale deed, was allowed by the Consolidation Officer. The Consolidation Officer rejected the claim of Smt. Jai Devi, opposite party No. 5 and others, put forward on the strength of a second sale deed executed by Smt. Kaushaliya, on 2 -5 -1962, of her share for Rs. 3000/ - after permission of the Settlement Officer given on 30 -4 -1962. The objection of Smt. Jai Devi and others was that Smt. Kaushaliya who was not in possession of the land, had executed a legally void sale deed in favour of the Petitioner on 22 -1 -1962 as there was no permission of the Settlement Officer so that the sale deed in favour of the Petitioner contravened the provisions of Section 5(c)(ii) of the UP Consolidation of Holdings Act (hereinafter referred to as the Act). It is also alleged by Jai Devi and others that the sale deed in favour of the Petitioner was fraudulent, but this plea was also repelled by the Consolidation Officer. The officer held that a permission obtained subsequently on 16 -3 -1962 to sell to the Petitioner cured the legal defect. The Consolidation Officer, therefore, did not enforce the claim of Smt. Jai Devi and others based on a second permission of the Settlement Officer (Consolidation) to sell to them obtained on 30 -4 -1962 as a result of which they obtained the second sale deed dated 2 -5 -1962. The view of the Consolidation Officer was that the provisions of the Act were directory only and did not have the effect of invalidating the first sale deed in favour of the Petitioner.
(2.) THE view taken by the Settlement Officer (Consolidation) opposite party No. 11 in an appeal filed by the contesting opposite parties against the order of the Consolidation Officer was that Section 5(c)(ii), read with Section 45 -A(2) of the Act, made the sale deed in favour of the Petitioner void. The appeal of the opposite parties having been allowed, the Petitioner went up in revision to the Deputy Director of Consolidation who also upheld the claim of the opposite parties and affirmed the view taken by the Settlement Officer (Consolidation) as against the view taken by the Consolidation Officer. The arguments advanced before the consolidation authorities have been repeated in this Court and an additional argument put forward was that Section 5(c)(ii) is constitutionally invalid if its provisions are mandatory, because, in that case, the Petitioner's fundamental right to acquire and hold property would be, it was submitted, unreasonably curtailed. Section 5(c)(ii) provides: Notwithstanding anything contained in the UP ZA and LR Act 1950 (UP Act I of 1951) no tenure holder , except with the permission in writing of the 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. Section 45 -A (2) of the Act provides : "A transfer made in contravention of the provisions of Section 5(c)(ii) shall not be valid or recognised, anything contained in any other law for the time being in force, to the contrary notwithstanding." The intention of the Legislature, therefore, to make sales in contravention of previsions of Section 5(c)(ii) invalid was expressed in quite unmistakable language. The permission of the Settlement Officer had to be obtained previous to the sale or transfer. This is also made clear beyond any doubt. Therefore, if the provision was effective and valid, the sale in favour of the Petitioner was certainly invalid.
(3.) THE Petitioner, however, raised the contention that the requirements of Section 5 of the Act giving effect to declarations made Under Section 4 of the Act could only take effect after a declaration had been published in the official Gazette as well as in the particular unit of the district in which the land in question lay. The Petitioner relied on the terms of Section 4 read with Section 5. Section 4 reads as follows: Declaration regarding consolidation. - - (1) Whenever the State Government decides to start consolidation operations in a district or part thereof, it may issue a declaration to this effect. (2) Every such declaration shall be published in the official Gazette and in each unit of the said district. Section 5 opens with the following words: Effect of declarations - -Upon the publication of the notification Under Section 4 in the official Gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification Under Section 52 or Sub -section (1) of Section 6, as the case may be, ensue in the area to which the declaration relates, namely....;