Mithai Lal And Others vs D.D.C. And Others
- Court
- Allahabad High Court
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - B No. - 5744 of 1978
Mithai Lal And Others
.....Petitioner(s)
Versus
D.D.C. And Others
.....Respondent(s)
Counsel for Petitioner(s) :
Counsel for Respondent(s) :
A.F.R.
Court No. - 37
Reserved on 29.4.2026
Delivered on 1.7.2026
HON'BLE CHANDRA KUMAR RAI, J.
1. Heard Sri Arvind Srivastava, learned counsel for the petitioners
and learned Standing Counsel for the State respondents.
2. Mr. Yogendra Pati Tripathi, learned counsel, has appeared before
the Court at the time of disposal of delay condonation / restoration
application as well as substitution application on 01.04.2026, but on
the subsequent dates, Sri Yogendra Pati Tripathi had not appeared
before the Court. Accordingly, the matter was heard finally in
presence of learned counsel for the petitioners as well as learned
Standing Counsel for the State respondents, and judgment was
reserved on 29.04.2026.
3. Brief facts of the case are that the dispute relates to Chak No. 70,
situated in Village Gursardi, Tehsil and District Mirzapur. Respondent
No. 4, Mathura Prasad Pandey (dead) now represented by his legal
heirs, was recorded Bhumidhar of the aforementioned Chak No. 70.
Respondent No. 4, Mathura Prasad Pandey applied for permission
before the Settlement Officer of Consolidation under Section
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5(1)(c)(ii) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter
referred to as 'the U.P. C.H. Act') to transfer the Chak No. 70 in
favour of the petitioners (dead) now represented by their legal heirs.
The Settlement Officer of Consolidation granted the permission on
30.06.1972 with the condition that the transfer shall be made up to
29.07.1972. Since there was a restriction on the transfer of
agricultural land at the relevant point of time on account of legislative
changes, accordingly, the registered agreement to sell was executed
between the parties on 15.07.1972 and possession was delivered to
the petitioners. As soon as the restriction of transfer of agricultural
land was lifted, the registered sale deed was executed by respondent
No. 4 in favour of the petitioners on 16.02.1973. In pursuance of the
execution of the sale deed in favour of the petitioners on 16.02.1973,
an application for mutation was filed before the Consolidation Officer.
In the aforementioned proceeding, respondent No. 4 filed an
objection that mutation should be refused as the sale deed was
executed after 29.07.1972, which was the condition, mentioned in the
order of permission granted by the Settlement Officer of
Consolidation under Section 5(1)(c)(ii) of the U.P. C.H. Act. The
Consolidation Officer, vide order dated 10.05.1977, rejected the
application / objection of the petitioners for recording of his name on
the basis of the sale deed dated 12.02.1973 and maintained the
earlier entry of the chak in question. Petitioners challenged the order
of the Consolidation Officer dated 10.05.1977 by way of appeal under
Section 11 (1) of the U.P.C.H. Act before the Settlement Officer of
Consolidation. The aforementioned appeal was heard and dismissed
by the Assistant Settlement Officer of Consolidation vide order dated
15.09.1977. Petitioners challenged the order of the consolidation
authorities before the Deputy Director of Consolidation under Section
48 of the U.P.C.H. Act, which was heard and dismissed by the
Deputy Director of Consolidation vide order dated 05.07.1978.
WRIB No. 5744 of 1978
3
Hence, this writ petition on behalf of the petitioners for the following
relief:
"(a). Issue account of certiorari quashing the ordrs dated
5.7.1977, 15.9.1977 and 10.5.1977 passed by respondent nos.1 to
3 respectively."
4. This Court admitted the writ petition on 20.7.1978 and stayed the
dispossession of the petitioners from the land in dispute.
5. In pursuance of the order of this Court dated 20.7.1978, parties
have exchanged their pleadings.
6. Learned counsel for the petitioners submitted that there was no
necessity to get permission to transfer the complete chak comprising
of a compact holding even then, petitioners applied for permission
under Section 5 (1) (c) (ii) of the U.P.C.H.Act by way of abundant
caution, accordingly, permission was granted by the Settlement
Officer of Consolidation with the condition that the transfer shall be
made up to 29.7.1972. He submitted that there was a restriction on
transfer at the relevant point of time, accordingly, instead of execution
of a sale deed, a registered agreement to sell was executed between
the parties on 15.7.1972 and possession of the chak was delivered in
favour of the petitioners. He submitted that as soon as the restriction
on transfer was lifted, a registered sale deed was executed by
respondent no. 4 himself on 16.2.1973, as such, respondent no. 4
cannot object to the mutation of the names of the vendees over the
chak in dispute. He further submitted that the object of permission
under Section 5 (1) (c) (ii) of the U.P.C.H.Act was to see that the
transfer did not result in fragmentation of holdings, and in the instant
case, there was a transfer of the complete chak no. 70 in favour of
the petitioners, as such, there was no fragmentation of holdings at all.
He submitted that in view of the restriction on transfer at the relevant
point of time and the execution of the sale deed on 16.2.1973 as
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soon as restriction on transfer was lifted is sufficient grounds for the
execution of the sale deed after the time period fixed by the
Settlement Officer of Consolidation under Section 5 (1) (c) (ii) of the
U.P.C.H.Act He placed reliance upon the following judgments of this
Court in order to demonstrate that if a sale deed has been executed
after the time period fixed by the Settlement Officer of Consolidation
under Section 5 (1) (c) (ii) of the U.P.C.H.Act it cannot be held to be
void.
1. 1996 (87) RD 544 Lalta Prasad Srivastava vs. IXth Additional
District Judge,Agra.
2. 1997 (88) RD 285 Smt. Sita Devi vs. Deputy Director of
Consolidation, Jaunpur and others
3. 2018 (138) RD 685 Surya Narayan vs. Deputy Director of
Consolidation
7. On the other hand, learned standing counsel for the State
respondents submitted that there is no illegality in the exercise of
jurisdiction by consolidation authorities, as the sale deed was
executed by respondent no. 4 in violation of the condition mentioned
in the order of permission granted by the Settlement Officer of
Consolidation under Section 5(1)(c)(ii) of the U.P.C.H. Act. He
submitted that all three consolidation authorities have recorded
concurrent findings; as such, there is no scope for interference
against the impugned judgments passed by the consolidation
authorities. He further submitted that the argument advanced by
learned counsel for the petitioners that possession was transferred to
the petitioners on 15.7.1972 in pursuance of the registered
agreement to sell executed by respondent no. 4 cannot be accepted,
as there is no document which demonstrates that possession was
transferred to the petitioners. He further submitted that the argument
advanced by learned counsel for the petitioners that complete chak
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5
was transferred by respondent no. 4 in favour of the petitioners is
also incorrect as such, permission was very much necessary for
making transfer during consolidation operations. He further submitted
that no interference is required in this matter and the writ petition is
liable to be dismissed.
8. I have considered the arguments advanced by learned counsel for
the petitioners, learned standing counsel for the State respondents,
and perused the record.
9. There is no dispute about the fact that respondent no. 4 was the
recorded owner of Chak No. 70 and respondent no. 4 had applied for
permission to transfer Chak No. 70 in favour of the petitioners. There
is also no dispute about the fact that the Settlement Officer of
Consolidation granted permission on 30.6.1972 under Section
5(1)(c)(ii) of the U.P.C.H. Act in favour of respondent no. 4 to execute
the sale deed of Chak No. 70 in favour of the petitioners up to
29.7.1972. There is also no dispute about the fact that the sale deed
was actually executed on 16.2.1973 by respondent no. 4 in favour of
the petitioners.There is also no dispute about the fact that an
application for mutation was filed on behalf of the petitioners which
has been rejected by the Consolidation Officer on the ground that the
sale deed executed on 16.2.1973 is void, as the time limit for
execution of the sale deed was only up to 29.7.1972. There is also no
dispute about the fact that the appeal under Section 11(1) of the
U.P.C.H. Act and the revision under Section 48 of the U.P.C.H. Act
filed by the petitioners have also been dismissed by the Assistant
Settlement Officer of Consolidation and Deputy Director of
Consolidation.
10. In order to appreciate the controversy involved in the matter,
perusal of Section 5(1)(c)(ii) of the U.P.C.H. Act will be relevant,
which is as under:
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" 5.Effect of notification under Section (4) .........
(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-
.................................................................................................................................................................
(ii). transfer by way of sale, gift or exchange his holding or any part thereof in the
consolidation area."
11. The aforesaid Section 5(1)(c)(ii) of the U.P.C.H. Act has been
omitted by U.P. Act No. 30 of 1991 w.e.f. 19.2.1991. In view of the
aforesaid omission of Section 5(1)(c)(ii) of the U.P.C.H. Act, there is
no necessity for taking permission for making transfer during
consolidation operations with effect from 19.2.1991, but in the instant
matter execution of sale deed was made in the year 1973 in
pursuance of the permission granted in the year 1972, as such, the
instant matter will be examined in the light of the provisions of Section
5(1)(c)(ii) of U.P.C.H. Act, which was existing in the year 1972-73.
12. In order to adjudicate the controversy involved in the matter, it will
be necessary to examine the ratio of law laid down by this Court in
the case of Lalta Prasad Srivastava (supra), in which this Court,
while considering the provision contained under Section 5(1)(c)(ii) of
U.P.C.H. Act, has held that the invalidity of a transfer resulting in the
absence of prior permission as provided under Section 5(1)(c)(ii) of
the U.P.C.H. Act does not per-se render the transaction void or
legally ineffective and the invalidity is curable. Paragraphs No. 28, 29,
and 30 of the judgment rendered in Lalta Prasad Srivastav (supra)
will be relevant for perusal, which are as under:
"28. A Full Bench of this Court in its decision in the case of Smt.
Ram Rati and others v. Gram Samai. Jehwa and others reported
in A. I. R. 1974 Allahabad 106 had clarified that the ban
WRIB No. 5744 of 1978
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envisaged under clause (ii) of Section 5 of U. P. Consolidation of
Holdings Act was intended to prevent fragmentation of holdings
and as such it was placed only on a transfer of a part of the
holding. There could be no objection to the transfer of the
holding as a whole because it would not involve fragmentation
but would involve only a change in ownership. The Full Bench
observed that the scheme under lying the Act was to
consolidate agricultural holdings and to prevent their further
fragmentation for which the said provision and been made. It is
also observed that it was not the intention to restrict the right of
an owner to deal with his property by way of sale, exchange or
transfer except to the ex tent that the necessary to carry out the
objects of the Act. The Full Bench further observed that the
expression any holding occurring in clause (i) of S. 5 (I) (c) of the
act does not include the whole holding so that it is not
necessary to obtain the permission of Settlement Officer
(Consolidation) for the transfer of the holding as a whole.
29. It seems to me that the invalidity of a transfer resulting in the
absence of the prior permission as envisaged under Section 5(1)
(c) (i) of the U. P. Consolidation of Holdings Act does not per se
render the transaction void or legally ineffective. The invalidity is
curable.-Considering the policy and the object behind the
aforesaid provisions, this invalidity can be cured before the
finalisation of the provisional consolidation scheme. It is
obvious that to begin with the Settlement Officer (Consolidation)
had granted the permission which was to remain effective for
thirty days but considering that the sale had been executed after
the period provided for in the order passed in the year 1977, the
Settlement Officer (Consolidation) again granted the permission
in March 1978 extending the duration of the earlier permission.
The in validity if any, therefore, stood cured as it is no bodys
WRIB No. 5744 of 1978
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case that the provisional consolidation scheme had attained
finality by the date of permission which had been granted for the
second time.
30. In the aforesaid view of the matter the transfer in question
could not be held to be void or non-est being legally ineffectual
or without any authority of law."
13. This Court, in the case of Smt. Sita Devi (supra), has held that a
sale deed executed beyond the period fixed in the permission order
cannot be held to be void. Paragraph No. 6 of the judgment rendered
in Smt. Sita Devi (supra), for perusal, which is as under:
"6. In case the permission is granted to execute the sale deed
within a specified period and it has not been executed within
that period but the vendees indicate the circumstances on
account of which the delay occurred and if it is not on account
of their conduct, the sale deed executed after the period fixed for
its execution cannot be held to be void for want of permission as
provided under Section 5(1) (c) of the Act. The intention of the
legislature was that the sale deed should be executed with the
permission of the Settlement Officer Consolidation so that the
consolidation proceedings should not be jeopardised in the
carvation of chaks. In Lalji v. Joint Director of Consolidation and
others, it was held that the purpose of grant of permission by
the Settlement Officer Consolidation to the proposed transfer of
the land under Section 5(1) (c) is that the transfer does not have
adverse effect on the consolidation scheme. Respondent No.1
has found that the vendees were not in any way guilty of laches.
The sale deed shall be obtained by them cannot be treated as
invalid."
14. In the case of Surya Narayan (supra) , it has been held that in
case the whole land is transferred, there is no necessity for taking
permission from the Settlement Officer of Consolidation. Paragraphs
21 to 26 of the judgment rendered in Surya Narayan (supra) will be
necessary, which are as under:
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"21. From the above discussion, it is quite clear that for transfer
of part of the land, the permission from the Settlement Officer,
Consolidation is required as per Section 5 (c) (ii) of the Act. In
case whole land is transferred, then there is no necessity for
taking the permission from the Settlement Officer,
Consolidation. The permission has been obtained by the
respondent-5 from the Settlement Officer, Consolidation in the
present case on 31.1.1973 and accordingly, the registered sale-
deed was executed by the respondent-5 in favour of the
petitioners. Therefore, the sale-deed has been executed in
accordance with the permission granted by Settlement Officer,
Consolidation.
22. So far as the contention of the learned counsel for the
petitioner that the registered instrument cannot be ignored in
the mutation proceeding and for that purpose, suit has to be
filed for cancellation of the said instrument. Here the statute
provides that permission has to be obtained in respect of the
transfer of any part of the holding falls within consolidation area
and in absence of the said permission, the registered instrument
rendered void and in such circumstances, there is no necessity
for filing any suit for cancellation of sale-deed.
23. So far as the question that the present sale-deed in question
has been executed by the respondent-5 in favour of the
petitioners in order to evade the payment of loan alleged to have
taken from the Society, it is clear from the record that the award
as well as sale-deed has been executed on the same day and
prior to sale-deed, 20 times land revenue has been deposited by
the respondent-5, even he applied for obtaining the permission
from the Settlement Officer, Consolidation and in such
circumstances, it cannot be said that the sale-deed has been
executed by the respondent-5 in order to evade the payment of
loan and to render the award ineffective. If any award is passed
against the respondent-5 under any statute that has to be
executed in accordance with law even in absence of the land,
which has been sold by the respondent-5.
24. All the Consolidation Authorities have committed illegality
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while holding that the sale-deed has been executed contrary to
the permission granted by the Settlement Officer, Consolidation.
The provisions of Section 5 (c) (ii) of the Act as stood prior to
amendment by U.P. Act No. 34 of 1974 has totally been ignored
by them.
25. The writ petition deserve to be allowed and the impugned
orders dated 23.7.1979, 25.10.1975 and 15.9.1973 passed by the
Deputy Director of Consolidation, Deoria, Settlement Officer,
Consolidation, Deoria and Consolidation Officer, Deoria
respectively are quashed. Writ petition is, accordingly, allowed.
26. The matter is remanded to the Consolidation Officer, Deoria
to decide the mutation application of the petitioners afresh after
hearing the parties in the light of the observations made above.
Since, the matter is an old one and therefore, the same should
be decided expeditiously preferably within a period of six
months from the date of production of certified copy of this
order. In the circumstances of the case, the parties shall bear
their cost throughout."
15. Perusal of the judgment rendered in Lalta Prasad Srivastva
(supra) fully demonstrates that transfer made in absence of prior
permission as provided under Section 5(1)(c)(ii) of the U.P.C.H. Act
does not per se render the transaction void or legally ineffective;
rather, the invalidity is curable.
16. In the instant matter, the permission was granted, but due to ban
on the transaction at the relevant point of time, the transfer could not
be made; rather, a registered agreement to sell was executed and as
soon as the ban was lifted, the registered agreement to sell was
executed by respondent no. 4 on 16.2.1973 in favour of the
petitioners, in pursuance of the permission granted by the Settlement
Officer of Consolidation on 30.6.1972, as such, the mutation applied
by the petitioners cannot be refused by the Consolidation Officer on
the ground that the sale deed executed by respondent no. 4 is void
WRIB No. 5744 of 1978
11
17. It is material to mention that respondent no. 4 himself executed
the sale-deed as such, he cannot object the mutation proceedings in
order to deprive the petitioners from the property which has been
transferred in his favour by respondent no. 4 himself. It is also
material to mention that, according to the petitioners, the entire Chak
No. 70 was transferred by respondent no. 4 in favour of the petitioner
but the version of the petitioners for transfer of the entire holding has
been denied by private respondent no. 4.
18. Considering the ratio of law laid down by this Court in Lalta
Prasad Srivastva (supra), Smt. Sita Devi (supra), and Surya
Narayan (supra) , as well as in the facts and circumstances of the
case as mentioned, the orders dated 5.7.1978 passed by respondent
no.1, 15.9.1977 passed by respondent no.2 and 10.5.1977 passed by
respondent no.3 are liable to be set aside and the same are hereby
set aside.
19. The writ petition stands allowed.
20. Respondent No. 3- Consolidation Officer, Mirzapur, is directed to
restore the proceeding on its original number and record the name of
the petitioners in pursuance of the sale deed executed on 16.2.1973
over Chak No. 70, within a period of three months from the date of
production of a certified copy of this order.
21. No order as to costs.
July 1, 2026
PS*
(Chandra Kumar Rai,J.)
Digitally signed by :-
PRITI SHARMA
High Court of Judicature at Allahabad