Suraj Pal (D) Thr. Lrs. vs Ram Manorath

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).5883 OF 2013

SURAJ PAL (D) THR. LR. ... Appellant(s)

Versus

RAM MANORATH & ORS. ... Respondent(s)

JUDGMENT

Deepak Gupta, J.

1. The appellant is aggrieved by the order passed by a learned

Single Judge of the High Court of Allahabad in Civil Misc. Review

Application No.247459 of 2006 in Second Appeal No. 1540 of

1982.

2. The main issue which arises for consideration is whether

permission of the Settlement Officer (Consolidation) was required

to be obtained in terms of Section 5(c)(ii) of the U.P. Consolidation Signature Not Verified Digitally signed by SANJAY KUMAR

of Holdings Act (for short ‘the Act’) before sale of the plot No. 386 Date: 2017.08.11 12:24:23 IST Reason: 2

(re-numbered as plot No. 348) in consolidation proceedings and

hereinafter referred to as the suit property.

3. The admitted facts are that the suit property was land

used as ‘Abadi’ and was declared ‘Chakout’ (meaning out of the

consolidation scheme) after the preliminary survey was

conducted. Four brothers were co-tenure holders of the land in

dispute. One brother executed a sale deed of his 1/4 th 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) was obtained. They also claimed that they

are in possession of the suit property and the

respondents-defendants are trying to make construction on the

land and had illegally constructed a ‘kothari’ on the suit property.

The respondents-defendants claimed 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

the ground that no permission of the Settlement Officer 3

(Consolidation) was required since the land was outside the

consolidation scheme. The 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.

4. Thereafter, review petition was filed mainly on the 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 elaborately discussed

the objects, reasons, scheme and the provisions of the Act and

came to the conclusion that no permission was required to sell

the land in question. The review petition and appeal were

allowed by the impugned order.

5. The appellants challenge the impugned judgment on two

grounds. Firstly, that the learned Single Judge has reopened the

matter and gone beyond the scope of review and secondly that

though the land may not be allotted under the consolidation 4

scheme, it still is the part of the holding and would be covered by

Section 5 of the Act.

6. 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

the 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, the learned

Single Judge was justified in reconsidering the matter.

7. As far as the merits of the case are concerned, we may refer

to the provisions of Section 5 (c) of the Act, which read as follows:

“5(c) 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 –

(i) use his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including, pisciculture and poultry farming; or 5

(ii) 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.”

8. 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, strictly

speaking, 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 inasmuch as its 6

value could not be taken into consideration while framing the

scheme and it could not be allocated or allotted to any other

person.

9. In view of the above discussion, we find no merit in the

appeal and the same is dismissed.

10. Status quo, granted vide order dated 07.09.2007 and

continued vide order dated 19.07.2013, stands vacated.

Pending application(s), if any, stand(s) disposed of.

....................................J. (MADAN B. LOKUR)

....................................J. (DEEPAK GUPTA)

New Delhi August 11, 2017