# Bhuley & Others v. Assistant Director of Consolidation & Ors

- **Citation:** (2013) 3 ILRA 1608
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-09
- **Case number:** Civil Misc. Writ Petition No. 6549 of 1990
- **Bench:** Ram Surat Ram (Maurya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhuley-others-v-assistant-director-of-consolidation-ors-42825
- **Pages:** 6

## Headnote

S.C., Sri K.R. Sirohi, Sri Yogesh Kumar
Singh, Sri G.N. Verma, Sri Dr. Madhu
Tandon, Sri S.M. Nazar Bokhari, Sri
Nazaruddin, Sri Sanjay Kr. Singh, Sri
Sharfuddin Ahmad, Sri Nazar Bokhari.

U.P. Consolidation of holdings Act 1953Section 5(i)(c)(ii)-Sale deed executed on
4.9.82-notification in the unit under section
4(2)(b)-published
on
24.09.82-whether
such transaction hit by section 5(i)(c)(ii) in
absence of permission to sale the part of
holdings?-held-'no' consolidation operation
come into existence only after publication
notification-order passed by consolidation
authorities-illegal
quashed-consequential
direction given.

Held: Para-12
Section 5 (1) (c) (ii) of the Act imposes a
restriction on transfer by way of sale, gift or
exchange of the holding or any part of it in
the consolidation area, except with prior
permission
of
Settlement
Officer
Consolidation. The consolidation area has
been defined as "the area in respect of
which a notification under Section 4 has
been issued". Mode of issuing notification
under Section 4 has been provided under
Section 4 (2) (b) by publishing the
notification in the official Gazette and in
each unit in the said area. Under Section 2
(8) of the Act, publication in the unit has to
be made by reading out, the document in
the unit on a date of which prior notice shall
be given by beat of drum, and proclamation
by beat of drum, or, in any other customary
mode, in the unit of the fact that the
document is open to public inspection at an
appointed place and time. Thus so long as
notification is not published in the unit the
restrictions imposed upon Section 5 (1) (c)
(ii) of the Act will not apply. Use of different
words under Section Section 5 (1) and 5 (2)
of the Act are nothing to do with the
restriction for transfer, which has been
imposed in the consolidation area, which
has a definite meaning under the Act. In the
cases relied upon by the counsel for the
petitioners, this Court has rightly held that
so long as notification under Section 4 (2)
(b) of the Act is not made in the unit, the
restrictions under Section 5 (1) (c) (ii) will
not apply. I do not find any reason to take a
different
view.
Admittedly
notification
3 All] Bhuley & Others Vs. Assistant Director of Consolidation & Ors.
1609
under Section 4 (2) (b) of the Act, in the
unit was made on 24.09.1982 and sale
deeds were executed on 04.09.1982 as
such these sale deeds are not invalid under
Section
45-A
(2)
of
the
Act.
The
consolidation
authorities
have
illegally
ignored the sale deeds of the petitioners, in
spite of the fact that its due execution was
found to be proved.

Case Law discussed:
1997(1) AWC 29; 1997(88) RD 348; 2001(92)
RD 531; 2004(96) RD 8; (1990) 3 SCC 682;
(1990) 3 SCC 682; (2012) 9 SCC 552.

## Text

1608 INDIAN LAW REPORTS ALLAHABAD SERIES
of her two minor children till any other
competent court of law awards any
maintenance to them.

8. Accordingly, this petition of habeas
corpus stands disposed of with the direction
that the petitioner Rajendra Kumar Saroj shall
pay Rs. 5,000/- per month to his wife Smt.
Neeta Bharatiya for her and her children's
maintenance
till
they
are
awarded
maintenance by any other competent court of
law.

9.

D.D.O.
Government
Press
Allahabad is directed to deduct Rs. 5,000/-
per month plus money order charges from
the salary of petitioner Rajendra Kumar
Saroj S/o late Sunder Lal R/o 84 Nayapura
Stanly Road, P.S.- Shivkuti, District-
Allahabad and send it through money orders
to Smt. Neeta Bhartiya D/o Ram Prasad
Bharatiya R/o 1563 Kidwai Nagar Allapur,
Police Station- George Town, Allahabad
month to month.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2013

BEFORE
THE HON'BLE RAM SURAT RAM (MAURYA), J.

Civil Misc. Writ Petition No. 6549 of 1990

Bhuley & Others... Petitioners
Versus
Assistant Director of Consolidation &
Ors... Respondents

Counsel for the Petitioners:
Dr. V.K. Rai, Sri Vijay Kumar Rai
Sri Prabho Kant, Sri A.K. Jaiswal
Sri M.D. Singh, Sri Sankatha Rai

Counsel for the Respondents:
S.C., Sri K.R. Sirohi, Sri Yogesh Kumar
Singh, Sri G.N. Verma, Sri Dr. Madhu
Tandon, Sri S.M. Nazar Bokhari, Sri
Nazaruddin, Sri Sanjay Kr. Singh, Sri
Sharfuddin Ahmad, Sri Nazar Bokhari.

U.P. Consolidation of holdings Act 1953Section 5(i)(c)(ii)-Sale deed executed on
4.9.82-notification in the unit under section
4(2)(b)-published
on
24.09.82-whether
such transaction hit by section 5(i)(c)(ii) in
absence of permission to sale the part of
holdings?-held-'no' consolidation operation
come into existence only after publication
notification-order passed by consolidation
authorities-illegal
quashed-consequential
direction given.

Held: Para-12
Section 5 (1) (c) (ii) of the Act imposes a
restriction on transfer by way of sale, gift or
exchange of the holding or any part of it in
the consolidation area, except with prior
permission
of
Settlement
Officer
Consolidation. The consolidation area has
been defined as "the area in respect of
which a notification under Section 4 has
been issued". Mode of issuing notification
under Section 4 has been provided under
Section 4 (2) (b) by publishing the
notification in the official Gazette and in
each unit in the said area. Under Section 2
(8) of the Act, publication in the unit has to
be made by reading out, the document in
the unit on a date of which prior notice shall
be given by beat of drum, and proclamation
by beat of drum, or, in any other customary
mode, in the unit of the fact that the
document is open to public inspection at an
appointed place and time. Thus so long as
notification is not published in the unit the
restrictions imposed upon Section 5 (1) (c)
(ii) of the Act will not apply. Use of different
words under Section Section 5 (1) and 5 (2)
of the Act are nothing to do with the
restriction for transfer, which has been
imposed in the consolidation area, which
has a definite meaning under the Act. In the
cases relied upon by the counsel for the
petitioners, this Court has rightly held that
so long as notification under Section 4 (2)
(b) of the Act is not made in the unit, the
restrictions under Section 5 (1) (c) (ii) will
not apply. I do not find any reason to take a
different
view.
Admittedly
notification
3 All] Bhuley & Others Vs. Assistant Director of Consolidation & Ors.
1609
under Section 4 (2) (b) of the Act, in the
unit was made on 24.09.1982 and sale
deeds were executed on 04.09.1982 as
such these sale deeds are not invalid under
Section
45-A
(2)
of
the
Act.
The
consolidation
authorities
have
illegally
ignored the sale deeds of the petitioners, in
spite of the fact that its due execution was
found to be proved.

Case Law discussed:
1997(1) AWC 29; 1997(88) RD 348; 2001(92)
RD 531; 2004(96) RD 8; (1990) 3 SCC 682;
(1990) 3 SCC 682; (2012) 9 SCC 552.

(Delivered by Hon'ble Ram Surat Ram
(Maurya), J.)

1. Heard Sri Vijay Kumar Rai, for
the petitioners and Sri K.R. Sirohi, Senior
Advocate, assisted by Sri Yogesh Kumar
Singh, for the contesting respondents.

2. The writ petition has been filed
against the orders of Consolidation
Officer dated 25.04.1986, Settlement
Officer Consolidation dated 17.07.1989
and Assistant Director of Consolidation
dated
08.03.1990,
passed
in
title
proceedings, under U.P. Consolidation of
Holdings Act, 1953 (hereinafter after
referred to as the Act).

3. The dispute relates to land of
basic
consolidation
year
khata
88
[consisting plots 45 (area 9-3-0 bigha), 69
(area 3-1-0 bigha), 278 (area 1-14-0
bigha), 307 (area 3-04-0 bigha), 315 (area
2-16-0 bigha) and 422 (area 22-2-0
bigha)], which was recorded in the name
of Ram Ratan son of Man Singh and
khata 93 [consisting plots 96 (area 8-13-0
bigha) and 103/1 (area 3-2-0 bigha),
which was recorded in the names of Ram
Ratan son of Man Singh and Desh Raj son
of Ram Chandra, of village Jhatta,
pargana Dankaur, district Buland Shahar.
Ram Ratan executed three sale deeds
dated 04.09.1982, by which he transferred
entire land of khata 88 and his 1/2 share
of khata 99, in favour of the petitioners .

4. Village Jhatta, pargana Dankaur,
district Buland Shahar was placed under
consolidation operation by Notification
No. 2426/G-33-81, dated May 26, 1982
published in U.P. Gazette Part 1-Ka,
dated 10th July, 1982 and notification in
the Unit took place on 24.09.1982,
according to the provisions of Section 4
(2) (b) of the Act. The village was
notified under Section 9 of the Act, in
October, 1985. In CH Form 5, relating to
khatas in dispute, the possession of the
petitioners were noted and name of Smt.
Angoori (respondent-4) was noted as an
heir of Ram Ratan. The petitioners filed
their objections under Section 9 of the
Act, for recording their names over the
land in dispute, on the basis of the sale
deeds dated 04.09.1982, executed by Ram
Ratan in their favour. Smt. Angoori
contested the objections on the ground
that sale deeds were obtained without
prior permission of Settlement Officer
Consolidation and are void documents.
The sale deeds were procured by
committing fraud without payment of
consideration. The sale deeds were
canceled by the decree of Civil Court
dated 24.05.1983, passed in Civil Suit No.
296 of 1982. She claimed to be daughter
of Ram Ratan and his only heir.

5. The objections of the petitioners
were registered as Case No. 376 to 379 and
consolidated and tried together. Apart from
documentary
evidence,
the
petitioners
examined Ratan Lal and Smt. Premwati
alias Ramwati, the marginal witnesses of
the sale deeds and the respondent examined
Prem Singh, Deshraj and Bhagwat Singh.
1610 INDIAN LAW REPORTS ALLAHABAD SERIES
The Consolidation Officer, by his order
dated 25.04.1986 held that the name of Smt.
Angoori was mutated as an heir of Ram
Ratan
by
the
order
of
Assistant
Consolidation Officer dated 05.11.1985.
Although due execution of the sale deeds
dated 04.09.1982 by Ram Ratan in favour
of the petitioners has been proved but as the
sale deeds have already been canceled by
decree of Civil Court dated 24.05.1983 as
such it cannot be given effect to in
consolidation
records.
The
requisite
permission
of
Settlement
Officer
Consolidation was not obtained under
Section 5 (1) (c) of the Act as such the sale
deeds are void. On these findings objections
of the petitioners were dismissed by order
dated 25.04.1986.

6. The petitioners filed appeals
(registered as Appeal Nos. 1079, 1080,
1081 and 1082) from the aforesaid order.
In the meantime exparte decree dated
24.05.1983 was set aside and O.S. No.
196 of 1982 was abated under Section 5
(2) of the Act. The appeals were
consolidated and heard by Settlement
Officer Consolidation, who by order dated
17.07.1989 held that as notification under
Section
4
(2)
was
published
in
Government Gazette on 10.07.1982 and
the
sale
deeds
were
executed
on
04.09.1982 without prior permission of
Settlement Officer Consolidation as such
the sale deeds are void and the names of
the petitioners cannot be mutated on its
basis. The petitioners filed revisions
(registered as Revision Nos. 1980/550,
1981/551
and
1982/552)
from
the
aforesaid orders. The revisions were
consolidated and heard by Assistant
Director of Consolidation (respondent-1)
who by order dated 08.03.1990 upheld the
findings
of
Settlement
Officer
Consolidation
and
dismissed
the
revisions. Hence, this writ petition has
been filed.

7. The counsel for the petitioners
submitted that Section 4 (2) (a) of the Act
(as amended by U.P. Act No. VIII of
1963) provides that when the State
Government decides to start consolidation
operations, either in an area covered by a
declaration issued under sub-section (1)
or in any other area, it may issue a
notification to this effect. The mode of
issuing notification has been provided
under Section 4 (2) (b) of the Act, which
provides that every such notification shall
be published in the official gazette and in
each unit in the said area. Thus so long as
notification according to the provisions of
Section 4 (2) (b) of the Act is not
published, the village is not brought under
consolidation operation. Notification in
Government Gazette was published on
10.07.1982 and in the Unit was published
on
24.09.1982
as
such
prior
to
24.09.1982, the consolidation operation in
the village was not started and the sale
deeds dated 04.09.1982 were not hit by
the provisions of Section 5 (1) (C) of the
Act. The Consolidation Officer found due
execution of the sale deeds by Ram Ratan
was proved as such the names of the
petitioners were liable to be recorded over
the land in dispute on the basis of the sale
deeds executed by Ram Ratan in their
favour. The orders of consolidation
authorities are illegal and is liable to be
set aside. He placed reliance on the
judgments of this Court in Nagina and
another Vs. DDC and others, 1997 (1)
AWC 29, Raj Singh Vs. DDC and others,
1997 (88) RD 348, Ram Chandra Vs.
DDC and others, 2001 (92) RD 531 and
Madan Lal Vs. DDC and others, 2004
(96) RD 8, in which it has been held that
consolidation operation in the village
3 All] Bhuley & Others Vs. Assistant Director of Consolidation & Ors.
1611
commences from the date of publication
of the notification in the Unit. The
counsel for the petitioners also relied
upon several other case law in which the
word publication as mentioned in Land
Acquisition Act, 1894 and Railways Act,
were interpreted.

8. In reply to the aforesaid arguments,
the counsel for the respondent submitted that
in the case law relied upon by the counsel for
the petitioners, different words under Section
Section 5 (1) and 5 (2) of the Act have not
been noticed. Under Section 5 (1) the words
"Upon the publication of the notification
under sub-section (2) of Section 4 in the
Official Gazette" have been used, while
under Section 5 (2) the words "Upon the
publication of the notification under subsection (2) of Section 4" have been used.
This was the cautious act of the legislature.
The consequences of sub-section (1) of
Section 5 follow from the date of the
notification under sub-section (2) of Section
4 in the Official Gazette. Admittedly
notification under Section 4 (2) in the
Government Gazette was published on
10.07.1982 as such sale deeds executed on
04.09.1982 without prior permission of
Settlement Officer Consolidation were void.
The consolidation authorities have rightly
ignored the sale deeds. He submits that the
Court only interprets the provision of law
and has no jurisdiction to add any thing
omitted in the law as held by Constitutional
Benches of Supreme Court in S.P. Gupta Vs.
Union of India and others, AIR 1982 SC 149
and Punjab Land Development Reclamation
Corporation Ltd. Labour Court, (1990) 3
SCC 682. The writ petition is liable to be
dismissed.

9. I have considered the arguments of
counsel for the parties and examined the
record. So far as the arguments of the
counsel for the respondent is concerned it is
well settled that the Court only interprets the
provision of law and has no jurisdiction to
add any thing in it. Constitutional Bench of
Supreme Court in Punjab Land Development
and Reclamation Corpn. Ltd. v. Presiding
Officer, Labour Court, (1990) 3 SCC 682,
held that the court has to interpret a statute
and apply it to the facts. Hans Kelsen in his
Pure Theory of Law (p. 355) makes a
distinction between interpretation by the
science of law or jurisprudence on the one
hand and interpretation by a law-applying
organ (especially the court) on the other.
According
to
him
"jurisprudential
interpretation
is
purely
cognitive
ascertainment of the meaning of legal norms.
In contradistinction to the interpretation by
legal organs, jurisprudential interpretation
does not create law". "The purely cognitive
interpretation by jurisprudence is therefore
unable to fill alleged gaps in the law. The
filling of a so-called gap in the law is a lawcreating function that can only be performed
by a law-applying organ; and the function of
creating
law
is
not
performed
by
jurisprudence
interpreting
law.
Jurisprudential interpretation can do no more
than exhibit all possible meanings of a legal
norm. Jurisprudence as cognition of law
cannot decide between the possibilities
exhibited by it, but must leave the decision to
the legal organ who, according to the legal
order, is authorised to apply the law".
According to the author if law is to be
applied by a legal organ, he must determine
the meaning of the norms to be applied: he
must ''interpret' those norms (p. 348).
Interpretation therefore is an intellectual
activity which accompanies the process of
law application in its advance from a higher
level to a lower level. According to him, the
law to be applied is a frame. "There are cases
of intended or unintended indefiniteness at
the lower level and several possibilities are
1612 INDIAN LAW REPORTS ALLAHABAD SERIES
open to the application of law". The
traditional theory believes that the statute,
applied to a concrete case, can always supply
only one correct decision and that the
positive-legal ''correctness' of this decision is
based on the statute itself. This theory
describes the interpretive procedure as if it
consisted merely in an intellectual act of
clarifying or understanding; as if the lawapplying organ had to use only his reason but
not his will, and as if by a purely intellectual
activity,
among
the
various
existing
possibilities only one correct choice could be
made in accordance with positive law.
According to the author: "The legal act
applying a legal norm may be performed in
such a way that it conforms (a) with the one
or the other of the different meanings of the
legal norm, (b) with the will of the norm
creating authority that is to be determined
somehow, (c) with the expression which the
norm-creating authority has chosen, (d) with
the one or the other of the contradictory
norms; or (e) the concrete case to which the
two contradictory norms refer may be
decided under the assumption that the two
contradictory norms annul each other. In all
these cases, the law to be applied constitutes
only
a
frame
within
which
several
applications are possible, whereby every act
is legal that stays within the frame". Again in
Bharat Aluminium Co. v. Kaiser Aluminium
Technical Services Inc., (2012) 9 SCC 552,
held that it is not the function of the court to
supply the supposed omission, which can
only be done by Parliament. In our opinion,
legislative surgery is not a judicial option,
nor a compulsion, whilst interpreting an Act
or a provision in the Act.

10. Now the relevant provisions of
the Act are required to be examined. By
U.P. Act No. XXXVIII of 1958, the Act
was amended. The relevant provisions are
quoted below:-

Section 2 (2-A)- 'Consolidation area'
means the area, in respect of which a
notification under Section 4 has been
issued, except such provisions thereof to
which
the
provisions
of
the
U.P.
Zamindari Abolition and Land Reforms
Act, 1950 do not apply.

(8) 'Publication in the unit' or 'publish in
the unit' with reference to any document
means reading out of the document in the
unit on a date of which prior notice shall be
given by beat of drum, and proclamation by
beat of drum, or, in any other customary
mode, in the unit of the fact that the
document is open to public inspection at an
appointed place and time.

"5. Effect of declarations.- (1) Upon the
publication of the notification under subsection (2) of 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
notification under Section 4 (2) relates,
namely-

(a) .....

(b).......

(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) .....

(ii) transfer by way of sale, gift or
exchange his holding or any part of it in
the consolidation area.

45-A.
Penalty
for
contravening
provisions of Section 5.- (1).....

(2) A transfer made in contravention
of the provisions of Section 5 (1) (c) (ii)
3 All] Ram Kishun Singh @ Ram Krishna Singh Vs. State of U.P. and Ors.
1613
shall not be valid or recognized; anything
contained in any other law for the time
being
in
force
to
the
contrary
notwithstanding."

11. The relevant portion of the
provisions of Section 4, as it was in 1982
is quoted below:-

4.
Declaration
and
notification
regarding consolidation.- (1)

(2) (a) When the State Government
decides to start consolidation operations,
either in an area covered by a declaration
issued under sub-section (1) or in any other
area, it may issue a notification to that effect.

(b) Every such notification shall be
published in the official Gazette and in
each unit in the said area.

12. Section 5 (1) (c) (ii) of the Act
imposes a restriction on transfer by way of
sale, gift or exchange of the holding or any
part of it in the consolidation area, except
with prior permission of Settlement Officer
Consolidation. The consolidation area has
been defined as "the area in respect of which
a notification under Section 4 has been
issued". Mode of issuing notification under
Section 4 has been provided under Section 4
(2) (b) by publishing the notification in the
official Gazette and in each unit in the said
area. Under Section 2 (8) of the Act,
publication in the unit has to be made by
reading out, the document in the unit on a
date of which prior notice shall be given by
beat of drum, and proclamation by beat of
drum, or, in any other customary mode, in
the unit of the fact that the document is open
to public inspection at an appointed place
and time. Thus so long as notification is not
published in the unit the restrictions imposed
upon Section 5 (1) (c) (ii) of the Act will not
apply. Use of different words under Section
Section 5 (1) and 5 (2) of the Act are nothing
to do with the restriction for transfer, which
has been imposed in the consolidation area,
which has a definite meaning under the Act.
In the cases relied upon by the counsel for
the petitioners, this Court has rightly held
that so long as notification under Section 4
(2) (b) of the Act is not made in the unit, the
restrictions under Section 5 (1) (c) (ii) will
not apply. I do not find any reason to take a
different view. Admittedly notification under
Section 4 (2) (b) of the Act, in the unit was
made on 24.09.1982 and sale deeds were
executed on 04.09.1982 as such these sale
deeds are not invalid under Section 45-A (2)
of the Act. The consolidation authorities
have illegally ignored the sale deeds of the
petitioners, in spite of the fact that its due
execution was found to be proved.

9.
In
view
of
the
aforesaid
discussions, the writ petition succeeds and
is allowed. The orders of Consolidation
Officer dated 25.04.1986, Settlement
Officer Consolidation dated 17.07.1989
and Assistant Director of Consolidation
dated 08.03.1990 are set aside. The
Consolidation Officer shall give effect to
the sale deeds dated 04.09.1982 executed
by Ram Ratan in favour of the petitioners,
in the consolidation records.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2013

BEFORE
THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No. 7672 of 2013

Ram Kishun Singh @ Ram Krishna
Singh... Petitioner
Versus
State of U.P. and Ors.... Respondents