# Dharmraj v. D.D.C. Faizabad & Ors

- **Citation:** (2021) 8 ILRA 195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-26
- **Case number:** Consolidation No. 4584 of 1987
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmraj-v-d-d-c-faizabad-ors-47181
- **Pages:** 13

## Headnote

A. UP Consolidation of Holdings Act, 1953
-
Sections
5(1)(c)(ii)
&
45(A)
-
Consolidation process - Transfer of the
holding during the course - Requirement
of
permission
of
SOC
in
writing
-
Amendment Act No. 34 of 1974 came into
force w.e.f. 07.12.1974, bringing within its
boundaries all transfers whether it related
to part or the whole of the holding - Saledeed executed after the amendment - No
permission of SOC was taken - Effect -
Held, any deed in contravention of Section
5(1)(c)(ii) shall not be treated to be valid
nor can be recognized, despite anything
contained in any other law for the time
being in force in view of Section 45(A) -
This error is apparent on the face of the
record and the order passed by the DDC
cannot be sustained. (Para 23, 36 and 42)
B. Interpretation of Statute - Doctrine of
Precedent - Per-incuriam - Meaning and
applicability - It is to relax or dilute the
Rule of Stare-decisis - The general and
sancrosanct proposition, what is quotable
in law is binding, can be avoided and
ignored if it is rendered 'Inignoratiun' of a
Statue or other 'Binding Authority' - Held,
where a decision has been rendered per
incuriam, it is robbed of its precedent
value. (Para 46 and 49)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

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8 All. Dharmraj Vs. D.D.C. Faizabad & Ors.
195
earlier the allegations made in paragraph 14
of the counter-affidavit have not been
controverted or denied by the petitioners in
their rejoinder-affidavit. The allegations
have to be taken as having been admitted or
in
any
case,
the
allegations
go
uncontroverted.
This
is
well
settled
principle of law that allegations of fact
made on affidavit by a party when require
to be controverted by affidavit have not
been denied and continued have got to
taken to be have been admitted to be
correct. In the case of Juggi Lal Kamla Pat
v. Ram Janki Gupta and another, reported
in MANU/UP/0101/1962 : AIR 1962 Alld
407, it has been laid down by this High
Court as under:--

"A statement on oath, whether
true or false, has to be met by a counteraffidavit in reply, or by challenging the
statement by cross-examining the deponent.
If that is not done, it would be presumed
that the allegations, if untrue would have
been rebutted by the other side."

24. This court, in the case of
Pramod Kumar Chaturvedi Versus
State of U.P. and others (Supra), has
held that when the counter affidavit was
not filed, it is axiomatic that the
respondents no.4 has nothing to say
against the allegations and therefore the
averments,
by
reason
of
remaining
uncontroverted have to be treated as
correct in view of law laid down by the
Apex Court in its decision reported in AIR
1973 SC 627, 1982 SCC (2) 471 and 1987
SCR (4) 73.

25. In view of above since no
counter affidavit has been filed by the
opposite party no.3, the allegations made
in the writ petition are uncontroverted and
it can be safely presumed that the
allegations made in the writ petition are
true otherwise it would have been rebutted
by the other side.

26. In view of above and considering
the overall facts and circumstances of the
case the other judgments relied by learned
counsel for the opposite parties are of no
assistance to him and are distinguishable.
This court is of the considered opinion that
the impugned judgment and orders have
been passed in illegal manner beyond the
term of remand and without authority of
law and recording erroneous and perverse
findings without application of mind.
Therefore, the same are not sustainable in
the eyes of law and are liable to be
quashed.

27. The writ petition is, accordingly,
allowed. The judgment and order dated
05.03.1979, passed by the Settlement
Officer
Consolidation,
Faizabad,
contained in annexure no.3 to the writ
petition and judgment and order dated
09.12.1980, passed by the Deputy Director
of Consolidation, contained in Annexure
no.4 to the writ petition are hereby
quashed. The consequences shall follow
accordingly as per law. No order as to
costs.
----------
(2021)08ILR A195
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.07.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

Consolidation No. 4584 of 1987

Dharmraj ...Petitioner
Versus
D.D.C. Faizabad & Ors. ...Respondents

Counsel for the Petitioner:
196 INDIAN LAW REPORTS ALLAHABAD SERIES
S.K. Mehrotra

Counsel for the Respondents:
C.S.C., A.S. Chaudhry, Prabhakar Vardhan
Chaudha

A. UP Consolidation of Holdings Act, 1953
-
Sections
5(1)(c)(ii)
&
45(A)
-
Consolidation process - Transfer of the
holding during the course - Requirement
of
permission
of
SOC
in
writing
-
Amendment Act No. 34 of 1974 came into
force w.e.f. 07.12.1974, bringing within its
boundaries all transfers whether it related
to part or the whole of the holding - Saledeed executed after the amendment - No
permission of SOC was taken - Effect -
Held, any deed in contravention of Section
5(1)(c)(ii) shall not be treated to be valid
nor can be recognized, despite anything
contained in any other law for the time
being in force in view of Section 45(A) -
This error is apparent on the face of the
record and the order passed by the DDC
cannot be sustained. (Para 23, 36 and 42)
B. Interpretation of Statute - Doctrine of
Precedent - Per-incuriam - Meaning and
applicability - It is to relax or dilute the
Rule of Stare-decisis - The general and
sancrosanct proposition, what is quotable
in law is binding, can be avoided and
ignored if it is rendered 'Inignoratiun' of a
Statue or other 'Binding Authority' - Held,
where a decision has been rendered per
incuriam, it is robbed of its precedent
value. (Para 46 and 49)
Writ petition allowed. (E-1)
Cases relied on :-
1. Ram Rati Vs Gram Samaj, AIR 1974 (Alld.)
106
2. Riasat Khan Vs Dy. Director of Consolidation,
Lucknow & ors., 1981 RD 22
3. Smt. Ram Kali Vs Hira Lal & ors.,1986 RD 147
4. Siya Sharan Yadav & ors. Vs D.D.C. & ors.,
2014 (125) RD 463
5. Ram Bhawan & ors. Vs Joint Director of
Consolidation, Faizabad & anr., 2018 (138) RD
432
6. Smt. Asharfunisa Begum Vs Dy. Director of
Consolidation & ors., AIR 1971 (Alld.) 87 (FB)
7. Smt. Ram Rati & ors. Vs Gram Samaj & Ors.,
AIR 1974 (Alld.) 106 (FB)
8. Shabbir Ahmad Vs Abdul Sattar, (2000) 7 SCC
323
9. Lalta Prasad Vs IX A.D.J. Agra, 1996 (87) RD
544
10. Prema Devi Vs Raja Ram, (2014) 32 LCD
2179
11. Nand Kishore Marwah & ors. Vs Samundri
Devi, (1987) 4 SCC 382
12. A.R. Antulay Vs R.S. Nayak & anr., 1988 (2)
SCC 602
13. Bhavnagar University Vs Palitana Sugar Mill
(P) Ltd. & anr., (2003) 2 SCC 111

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Shri I.D. Shukla, learned
counsel for the petitioner and Shri P.V.
Chaudhary, learned counsel for the privaterespondents as well as learned standing
counsel for the State-respondents.

2. The issue involved in the instant
writ petition relates to the validity of a saledeed executed on 17.05.1975 which is said
to be hit by the provisions of Section
5(1)(c)(ii) of the U.P. Consolidation and
Holdings Act, 1953.

3. The submission of the learned
counsel for the petitioner is that the original
respondent no.2 Ram Dular, who is now
represented by his legal heirs sought his
mutation in respect of Chak-456 constituted
by the Plot Nos.71, 72, 73, 119, 120, 122,
124 and 125. He applied for his mutation
by moving an application under Section 12
8 All. Dharmraj Vs. D.D.C. Faizabad & Ors.
197
of the U.P. Consolidation and Holdings
Act, 1953 on the basis of the registered
sale-deed dated 17.05.1975 executed by the
original tenure-holder namely Sita Ram.

4. The petitioner and the respondents
no.2 to 4 also made an application for
mutation on the basis that the original tenureholder Sita Ram died and the petitioner and
the respondents no.2 to 4 being his real
brothers and the legal heirs have succeeded to
his estate and on the basis of the succession
and claimed their names to be mutated.

5. It is in this backdrop that the issue
arose before the Consolidation Officer
whether the sale-deed dated 17.05.1975 relied
upon by the respondent no.2 Ram Dular was
hit by Section 5(1)(c)(ii) of the U.P.
Consolidation and Holdings Act, 1953 since
no permission from the Settlement Officer of
Consolidation (for short, 'SOC') was taken.

6. The respondent no.2 while defending
his claim before the Consolidation Officer
had submitted that there was no need to take
permission from the SOC since Sita Ram had
executed
a
registered
sale-deed
dated
17.05.1975 in respect of his whole holding
and, therefore, the bar contained in Section
5(1)(c)(ii) of the U.P. Consolidation and
Holdings Act, 1953 did not affect the transfer
and he was entitled to succeed.

7.

The
Consolidation
Officer,
Akbarpur, District Faizabad by means of the
order
dated
20.08.1982
rejected
the
contention of the respondent no.2 and found
that the sale-deed dated 17.05.1975 was bad
in the eyes of law and accordingly it refused
to recognize the same, hence, as a
consequence, the names of the petitioner and
the respondents no.2 to 4 were mutated as the
successors of Sita Ram on the basis
succession.

8. The respondent no.2 Ram Dular
filed an appeal against the said order which
also came to be dismissed by the SOC by
means of the order dated 14.06.1983.

9. Being aggrieved against the order
of dismissal of his appeal, Ram Dular
preferred a revision under Section 48 of the
U.P. Consolidation and Holdings Act, 1953
before
the
Deputy
Director
of
Consolidation, Faizabad (for short, 'DDC,
Faizabad'), who by means of the order
dated 20.04.1987 allowed the revision and
ordered for mutation of the name of
respondent no.2 alone on the ground that
since Sita Ram had transferred his entire
holding in favour of the respondent no.2,
hence, no permission as contemplated
under Section 5(1)(c)(ii) of the U.P.
Consolidation and Holdings Act, 1953 was
required. This order passed by the DDC,
Faizabad
dated
20.04.1987
is
under
challenge in this writ petition.

10. Insofar as the facts are concerned,
there is not much dispute between the
parties. It is not disputed that the
respondent no.2 claimed his rights on the
basis of the registered sale-deed dated
17.05.1975 claiming full rights over the
Chak-456 situate in Village Akbarpur,
Gram Saidpur, District Faizabad whereas
the contention of the petitioner is that upon
the death of Shri Sita Ram, the petitioner
and the respondents no.2 to 4 being the
brothers succeeded to the property and the
sale-deed was hit by Section 5(1)(c)(ii) of
the U.P. Consolidation and Holdings Act,
1953. It is also not disputed by the parties
that Sita Ram had not sought any
permission
from
the
SOC
prior
to
executing the sale-deed dated 17.05.1975.

11. It will be relevant to mention here
that petitioner no.1, respondents no.2 and 4
198 INDIAN LAW REPORTS ALLAHABAD SERIES
died during the pendency of the writ
petition and were duly substituted by their
legal heirs. However, for sake of easy
reference, the Court is referring to the
original parties as impleaded in this writ
petition.

12. In view of the aforesaid, the only
issue that require consideration is whether
the sale-deed dated 17.05.1975 is valid or
not.

13. Addressing the Court on the
aforesaid issue, Shri I.D. Shukla, learned
counsel for the petitioner has urged that
Section 5(1)(c)(ii)
contained in U.P.
Consolidation and Holdings Act, 1953
categorically provided that no tenureholder except with the permission in
writing
of
the
Settlement
Officer
Consolidation previously obtained shall
transfer by way of sale, gift or exchange his
holding or any part of his holding in the
consolidation area.

14. It is further submitted that the
aforesaid provision was the subject matter
of controversy before the Full Bench of this
Court in the case of Ram Rati vs. Gram
Samaj, AIR 1974 (Alld.) 106. It is further
urged that the Full Bench expressed its
opinion that expression 'any part of his
holding' used in Section 5(1)(c)(ii) of the
U.P. Consolidation and Holdings Act, 1953
meant only part of the holding and not the
whole holding.

15. He further urged that after the
decision of the aforesaid Full Bench of
Ram Rati (supra), the Legislature amended
the aforesaid provision by means of the
U.P. Amending Act No.34 of 1974, which
came into force w.e.f. 07.12.1974 and
Section
5(1)(c)(ii)
of
the
U.P.
Consolidation and Holdings Act, 1953 was
amended and it was made applicable to all
transfers whether in respect of the entire
holdings or any part thereof. He submits
that since the aforesaid sale-deed in
question was executed on 17.05.1975 i.e.
after Section 5(1)(c)(ii) of the U.P.
Consolidation and Holdings Act, 1953 was
amended which came into effect from
07.12.1974. Thus, the contention that the
embargo of Section 5(1)(c)(ii) of the U.P.
Consolidation and Holdings Act, 1953 was
only applicable in respect of part of the
holding is incorrect.

16. The said embargo now applied
both on the part of the holding as well as
the entire holding and since the sale-deed
was executed after the amendment came
into force, hence, the view taken by the
DDC, Faizabad in the impugned order is
contrary to the law, hence, the impugned
order suffers from an error apparent on the
face of the record and is liable to be set
aside.

17. Shri I.D. Shukla in support of his
submission has relied upon the decision of
this Court in the case of (i) Riasat Khan vs.
Dy. Director of Consolidation, Lucknow &
Ors., 1981 RD Page 22; (ii) Smt. Ram Kali
vs. Hira Lal & Ors.,1986 RD Page 147
and (iii) Siya Sharan Yadav & Ors. vs.
D.D.C. & Ors., 2014 (125) RD 463.

18. Per contra, Shri P.V. Chaudhary,
learned counsel for the respondent no.2
submits that the view taken by the DDC,
Faizabad was apposite. He submits that the
purpose of consolidation is only to provide
compact agriculture land holding to the
tenure-holder. He has further urged that
even otherwise during pendency of the
aforesaid proceedings the law has changed
and
Section
5(1)(c)(ii)
of
the
U.P.
Consolidation and Holdings Act, 1953 has
8 All. Dharmraj Vs. D.D.C. Faizabad & Ors.
199
been deleted from the statute books. He
submits that in light of the U.P. Amending
Act No.30 of 1991 which was published in
the extraordinary gazette on 19.02.1991,
Section
5(1)(c)(ii)
of
the
U.P.
Consolidation and Holdings Act, 1953 was
omitted.

19. He further submitted that it will be
relevant to notice the preamble of the
amending Act No.30 of 1991. He submits
that in order to remove the practical and
legal
difficulties
experienced
in
implementation of U.P. Z.A. & L.R. Act
and U.P. Consolidation and Holdings Act,
1953 and for extending the consolidation
scheme in the hill areas, it was considered
necessary to amend the aforesaid Acts as
well as to do away with the provisions of
taking permission of the SOC for transfer
of holdings after the commencement of
consolidation scheme in order to prevent
corruption and ensure quick disposal of
cases relating to consolidation.

20. The emphasis made by Shri
Chaudhary is that it being the intention of
the legislature to remove and delete the
aforesaid provision, this subsequent event
must be taken note of by the Court while
deciding the aforesaid writ petition. The
law is it stands today, there is no
requirement for any tenure-holder to seek
permission
from
the
SOC
prior
to
executing any sale-deed. Since, the saledeed which was executed in favour of the
respondent no.2 has not been declared as
void nor has been cancelled by any Court
of law till date, hence, the rights of the
respondent
no.2
stands
preserved.
Accordingly,
in
the
facts
and
circumstances,
substantial
justice
has
already been done by the DDC, Faizabad
which has further been cemented with the
deletion of the impugned provision by
amending Act No.30 of 1991. Accordingly,
in this backdrop, the writ petition deserves
to be rejected.

21. Shri Chaudhary in support of his
submission has relied upon a decision of
this Court in the case of (i) Ram Bhawan
& Ors. vs. Joint Director of Consolidation,
Faizabad & Anr., 2018 (138) RD 432. He
also relies upon a Full Bench decision of
this Court in the case of (ii) Smt.
Asharfunisa Begum vs. Dy. Director of
Consolidation & Ors. AIR 1971 (Alld.) 87
(FB); (iii) Smt. Ram Rati & Ors. vs. Gram
Samaj & Ors., AIR 1974 (Alld.) 106 (FB);
(iv) Shabbir Ahmad vs. Abdul Sattar,
(2000) 7 SCC 323; (v) Lalta Prasad vs. IX
A.D.J. Agra, 1996 (87) RD 544; (vi)
Prema Devi vs. Raja Ram, (2014) 32 LCD
2179.

22. In order to appreciate the
submissions of the learned counsel for the
parties, at the very outset, it will be relevant
to notice the provisions of Section
5(1)(c)(ii) of the U.P. Consolidation and
Holdings Act, 1953 as it stood prior to the
amendment and also after the amendment
in 1974.

"Section 5(1)(c)(ii) as it existed
before
its
amendment
by
U.P.
Act
No.XXXIV of 1974 read thus:-

(c)
Notwithstanding
anything
contained in U.P. Zamindari Abolition and
Land Reforms Act, 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 any part of his holding in the
consolidation area.

* * * * * * * * * * *

After its amendment by U.P. Act
No.XXXIV of 1974, which amendment Act
200 INDIAN LAW REPORTS ALLAHABAD SERIES
came into force on December 7, 1974, it
reads thus:-

(c)
Notwithstanding
anything
contained in 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."

23. From the perusal of the aforesaid
provision, it is clear that prior to the
amendment in the year 1974, the language
used in Section 5(1)(c)(ii) indicates that the
embargo pertained to transfer where it
related to any part of the holding of the
tenure-holder.
This
provision
was
considered by the Full Bench of this Court
in the case of Smt. Ram Rati & Ors. vs.
Gram Samaj & Ors., (supra). The Full
Bench noticed that the issue had already
been decided by an earlier Full Bench of
this Court in the case of Smt. Asharfunisa
Begum (supra). The Full Bench noticed
that a plain reading of the provisions
indicated that the embargo was only in
respect to the part of the holding and,
therefore, in the opinion of the Full Bench
only such transfer was hit by Section
5(1)(c)(ii) which related to the part of
holding and in case if any tenure-holder
transferred his entire holding, the same
would not fall within the mischief of the
aforesaid section.

24. It will also be relevant to notice that
once the aforesaid interpretation was ascribed
by the Full Bench in the case of Smt.
Asharfunisa Begum (supra) this matter was
again referred to a Full Bench in the case of
Smt. Ram Rati & Ors. vs. Gram Samaj &
Ors., (supra) for the reason that there was
some discrepancy regarding the use of the
language in Section 5(1)(c)(ii) in Hindi and
its English version. Settling that controversy
the subsequent Full Bench in the case of Smt.
Ram Rati & Ors. vs. Gram Samaj & Ors.,
(supra) approved the interpretation ascribed
by the earlier Full Bench of this Court in the
case of Smt. Asharfunisa Begum (supra) and
held that English version of the Act would
prevail over the Hindi version and thus, it
would
be
seen
that
the
issue
was
authoritatively decided by the Full Bench.

25. Be that as it may, the issue in the
present case relates to a sale-deed which was
executed on 17.05.1975 i.e. after the
amendment in Section 5(1)(c)(ii) of the U.P.
Consolidation and Holdings Act, 1953, which
became effective from 07.12.1974.

26. As already noticed above, the
language prior and after the amendment is
very clear, the legislature thought best to
include all transfer whether in respect of part
of the holding or the entire holding and thus,
in order to avoid any misgivings, the
amendment was introduced.

27. Once, the amendment was
brought on the statute book and was
enforced, the sale-deed dated 17.05.1975
cannot be saved from the mischief since
admittedly the sale-deed is subsequent to
the amendment and once the amendment
had taken place, it could not be said that by
virtue of the decision of Full Bench in the
cases of Smt. Asharfunisa Begum (supra)
and Smt. Ram Rati & Ors. vs. Gram Samaj
& Ors., (supra), the sale-deed in question is
saved as both the Full Bench considered the
provisions of Section 5(1)(c)(ii) of the U.P.
Consolidation and Holdings Act, 1953 as it
stood prior to amendment in the year 1974.

28. In view of the aforesaid, the
reliance placed by Shri Chaudhary on the
8 All. Dharmraj Vs. D.D.C. Faizabad & Ors.
201
two Full Bench decisions in the cases of
Smt. Asharfunisa Begum (supra) and Smt.
Ram Rati & Ors. vs. Gram Samaj & Ors.,
(supra) do not come to his rescue.

29. The other issue raised by Shri
Chaudhary that the provisions of Section
5(1)(c)(ii) of the U.P. Consolidation and
Holdings Act, 1953 has been deleted
from the statute by amending the Act
No.30 of 1991 effective from 19.02.1991
and on the date when the writ petition is
being decided, the aforesaid change in
law must be noticed including the
intention of the legislature as expressed
in the prefactory notes and statement
appended to the Amending Act of 1991
which expresses the intention of the
legislature.

30. The aforesaid argument of Shri
Chaudhary is also fallacious and does not
impress the Court. It will be noticed that
the writ petition is not a continuity of the
proceedings. An appeal is considered in
continuity of the original proceedings.
The parties have contested their case
before the Consolidation Officer as well
as SOC and the DDC, Faizabad and thus,
the remedies in terms of the U.P.
Consolidation and Holdings Act, 1953
stands exhausted.

31. The writ petition has been
preferred under Articles 226/227 of the
Constitution of India where the issue
before the Court is to see the validity of
the
order
passed
by
the
authority
concerned. It is also to be noticed that the
law as it exists which give rise to the
cause of action crystallizes the rights of
the parties. It is well-settled that the
rights of the parties will be determined on
the basis of the rights available to them
on the date of the suit and this Court is
fortified in its view in light of the
decision of the Apex Court in the case of
Nand Kishore Marwah & Ors. vs.
Samundri Devi, (1987) 4 SCC 382.

32. Considering the aforesaid
aspect, the sale-deed in question was
executed on 17.05.1975 after Section
5(1)(c)(ii) of the U.P. Consolidation and
Holdings Act, 1953 was amended in 1974
and it encompassed within its ambit, all
transfers whether in part or whole of the
holding, hence, the sale-deed dated
17.05.1975 which is the basis of the
claim of the respondent no.2 was
squarely hit by the aforesaid provision.

33. Apparently, the order passed by
the Consolidation Officer and the SOC
takes note of the amended provision of
Section
5(1)(c)(ii)
of
the
U.P.
Consolidation and Holdings Act, 1953 and
thus, it cannot be said that there is any fault
in the order passed by the two authorities.
However, the DDC, Faizabad while passing
the impugned order has relied upon the
earlier position prior to amendment and
basing its decision on obsolete proposition
of law set aside the order passed by the
Consolidation Officer and the SOC and has
validated the sale-deed.

34. The decision relied upon by Shri
Chaudhary, if noticed, would reveal that
the case of Prema Devi (supra) does not
come to his rescue, as in the said case of
Prema Devi, it was a case where the Court
was exercising its jurisdiction in an appeal
which is a continuation of the proceedings.
Hence,
the
said
decision
is
clearly
distinguishable on the facts.

35. From the perusal of the impugned
order passed by the DDC, Faizabad dated
20.08.1987 it would indicate that it has
202 INDIAN LAW REPORTS ALLAHABAD SERIES
relied upon a decision in the case of Smt.
Ram Rati & Ors. vs. Gram Samaj & Ors.,
(supra). From the perusal of the decision of
Smt. Ram Rati & Ors. vs. Gram Samaj &
Ors., (supra), the redeeming feature which
can be noticed from the said decision is that
the sale-deed in question was dated
29.05.1968 and that it related to the entire
holding of the tenure-holder. The Court
placed reliance upon the decision found
that the sale-deed to be valid. Apparently,
in light of the discussions made above, the
reliance placed by the DDC, Faizabad on
the decision of Smt. Ram Rati & Ors. vs.
Gram
Samaj
&
Ors.,
(supra)
was
misplaced for the reason that it related to
the position prior to the amendment in the
Act.

36. In the instant case, the sale-deed
was executed in the year 1975 whereas the
Act was amended in 1974 and the
amendment brought within its boundaries
all transfers whether it related to part or the
whole of the holding, thus, this error is
apparent on the face of the record and the
order passed by the DDC, Faizabad cannot
be sustained.

37. It will also be relevant to notice
that since the rights of the parties had
crystallized on the date when the cause of
action arose i.e. on the date of the
execution of the sale-deed which is
subsequent to the amendment of the year
1974 and all remedies under the U.P.
Consolidation and Holdings Act, 1953
stood exhausted in the year 1987 i.e. when
the final authority under the Act i.e. DDC,
Faizabad passed the impugned order dated
20.04.1987. The amendment brought in the
Act in the year 1991 during pendency of
the writ petition cannot be treated to be
retrospective so as to grant any benefit to
the respondent no.2. Thus, for the aforesaid
reasons, this Court does not find that there
is any merit in the submissions of the
learned counsel for the respondent no.2.

38. Much emphasis was laid by Shri
Chaudhary on the decision of this Court in
the case of Ram Bhawan & Ors. (supra) to
buttress his submission that even in the
case of Ram Bhawan (supra), the saledeeds in question related to the period post
the amendment in the year 1974 and also
related to the entire holdings and the Court
considering the intention of the legislature
as well as relying upon the two Full Bench
decision in the cases of Smt. Asharfunisa
Begum (supra) and Smt. Ram Rati & Ors.
vs. Gram Samaj & Ors., (supra) allowed
the writ petition.

39. Upon careful reading of the
aforesaid decisions, this Court with utmost
respect is unable to follow the aforesaid
decisions. The aforesaid decisions only
takes note of the provision of Section
5(1)(c)(ii) of the U.P. Consolidation and
Holdings Act, 1953. However, there is no
consideration of Section 45(A) of the U.P.
Consolidation and Holdings Act, 1953.

40. It will be relevant to notice
Section 45(A) of the U.P. Consolidation
and Holdings Act, 1953 and is being
reproduced
hereunder
for
ease
of
reference:-

"Section
45(A).
Penalty
for
contravening provisions of Section 5.-(1)
Any person contravening the provisions of
Section 5(c)(i) shall, on conviction by a
Court of contempt jurisdiction, be liable to
a fine not exceeding rupees one thousand.

(2)
A
transfer
made
in
contravention of the provisions of Section
5(c)(ii) shall not be valid or recognized;
anything contained in any other law for the
8 All. Dharmraj Vs. D.D.C. Faizabad & Ors.
203
time being in force to the contrary
notwithstanding."

41. The aforesaid provision clearly
indicates the consequence of an act done in
violation of Section 5(1)(c)(ii) of the U.P.
Consolidation and Holdings Act, 1953. It
specifically provides that a transfer made in
contravention of the provisions of Section
5(1)(c)(ii) of the U.P. Consolidation and
Holdings Act, 1953 shall not be valid or be
recognized
notwithstanding
anything
contained in any other law for the time
being in force.

42. The use of the language made in
the aforesaid section clearly indicates that
so far as the consolidation authorities are
concerned,
any
deed
which
is
in
contravention of Section 5(1)(c)(ii) of the
U.P. Consolidation and Holdings Act, 1953
shall not be treated to be valid nor can be
recognized, despite anything contained in
any other law for the time being in force.

43. The aforesaid sub-section (2) of
Section 45(A) of the U.P. Consolidation
and Holdings Act, 1953 is a non-obstante
clause. Once, the consequence of the
aforesaid Act is provided and the same has
not been considered by this Court in the
case of Ram Bhawan (supra), apparently
for the said reason the said decision is
rendered per incuriam.

44. It will be relevant to note the
meaning of the word 'per incuriam'. In
Black's Law Dictionary, Eighth Edition,
the word ''per incuriam" has been defined
as under:-

"per incuriam (per in-kyoor-eeem), adj. (Of a judicial decision) wrongly
decided, usu. because the judge or judges
were ill-informed about the applicable law.

There is at least one exception to
the rule of stare-decisis. I refer to the
judgments rendered per incuriam. A
judgment per incuriam is one which has
been rendered inadvertently. Two examples
come to mind: first, where the judge has
forgotten to take account of a previous
decision to which the doctrine of stare
decisis applies. For all the care with which
attorneys and judges may comb the case
law, errare humanum est, and sometimes a
judgment which clarifies a point to be
settled is somehow not indexed, and is
forgotten. It is diction to a previous
judgment that should have been considered
binding, and in ingnorance of that
judgment, with no mention of it, must be
deemed rendered per incuriam; thus, it has
no authority...
the
same applies
to
judgments
rendered
in
ignorance
of
legislation of which they should have taken
into account. For a judgment to be deemed
per incuriam, that judgment must show that
the legislation was not invoked.' LouisPhilippe
Pigeon,
Drafting
and
interpretating Legislation 60 (1988).

As a general rule the only cases
in which decisions should be held to have
been given per incuriam are those of
decisions
given
in
ignorance
or
forgetfulness of some inconsistent statutory
provision or of some authority binding on
the court concerned, so that in such cases
some features of the decision or some step
in the reasoning on which it is based is
found on that account to be demonstrably
wrong. This definition is not necessarily
exhaustive, but cases not strictly within it
which can properly be held to have been
decided
per
incuriam, must
in our
judgment, consistently with the stare
decisis rule which is an essential part of
law, be of the rarest occurrence." Rupert
Cross & J.W. Harris, Precedent in English
Law 149 (4th ed. 1991)."
204 INDIAN LAW REPORTS ALLAHABAD SERIES

45. In the Advanced Law Lexicon by
P. Ramanatha Aiyer's (5th edition), it has
been defined as under:-

"Per incuriam. (Lat.) (of a
judicial decision) wrongly decided, usually
because the Judge or Judges were illinformed about the applicable law.

Through inadvertence or through
want of care. Through carelessness,
through inadvertence.

'Per incuriam' means 'through
want of care'. A decision of the Court
which is mistaken. A decision of the Court
is not a binding precedent if given per
incuriam, i.e. without the Court's attention
having been drawn to the relevant
authorities, or statutes.

"As a general rule the only cases
in which decisions should be held to have
been given per incuriam are those of
decisions
given
in
ignorance
or
forgetfulness of some inconsistent statutory
provision or of some authority binding on
the Court concerned, so that in such cases
some features of the decision or some step
in the reasoning on which it is based is
found on that account to be demonstrably
wrong. This definition is not necessarily
exhaustive, but cases not strictly within it
which can properly be held to have been
decided
per
incuriam, must
in our
judgment, consistently with the stare
decisis rule which is an essential part of
our law, be of the rarest occurrence."
RUPERT
CROSS
&
J.W.
HARRIS,
President in English law 149 (4th ed.
1991).

In HALSBURY'S Law of England
(4th Edn.) Vol.26 at pp. 297-98, para 578,
it is stated:

"A decision is given per incuriam
when the Court has acted in ignorance of a
previous decision of its own or of a Court
of coordinate jurisdiction which covered
the case before it, in which case it must
decide which case to follow (Young v.
Bristol Aeroplane Co. Ltd.) (1944) 1 KB
718, at p.729 : (1944) 2 All ER at p.293,
300). In Huddersfield Police Authority v.
Watson, 1947 KB 842 Lord GODDARD,
CJ. said that a decision was given per
incuriam when a case or statute had not
been brought to the Court's attention and
the Court gave the decision in ignorance or
forgetfulness of the existence of the case or
statute): or when it has acted in ignorance
of a House of Lords decision, in which case
it must follow that decision; or when the
decision is given in ignorance of the terms
of a statute or rule having statutory force.
[Young v. Bristol Aeroplane Co. Ltd.,
(1944) 1 KB 718 at p.729 : (1944) 2 All ER
293, 300 CA[As cited in State of Punjab v.
Devans, Modern Brewaries Ltd., (2004) 11
SCC 26 157 para 340]"

Per incuriam. "per incuriam" are
those decisions given in ignorance or
forgetfulness of some statutory provision or
authority binding on the Court concerned,
or
a
statement
of
law
caused
by
inadvertence or conclusion that has been
arrived at without application of mind or
proceed without application of mind or
proceed without any reason so that in such
a case some part of the decision or some
steps in the reasoning on which it is based,
is found that account to be demonstrably
wrong. [State of Madhya Pradesh v.
Narmada Bachao Andolan, (2011) 7 SCC
639, para 67]

46. Actually, the concept of perincuriam has been developed by the
English Courts which is to relax or dilute
the Rule of Stare-decisis. The general and
sancrosanct proposition, what is quotable in
law is binding, can be avoided and ignored
if it is rendered 'Inignoratiun' of a Statue or
other 'Binding Authority'. The aforesaid
8 All. Dharmraj Vs. D.D.C. Faizabad & Ors.
205
concept has also been adopted by our
Constitutional Courts.

47. The Constitution Bench of the
Apex Court in the case of A.R. Antulay Vs.
R.S. Nayak and Another, 1988 (2) SCC
602 while dealing with the issue of a
decision being per-incuriam, in paragraphs
104 and 105 has held as under:-

"..........104. To err is human, is the
oft-quoted saying. Courts including the apex
one are no exception. To own up the mistake
when judicial satisfaction is reached does
not militatte against its status or authority.
Perhaps it would enhance both."

105. It is time to sound a note of
caution. This Court under its Rules of
Business ordinarily sits in divisions and not
as a whole one. Each Bench, whether small
or large, exercises the powers vested in the
court and decisions rendered by the Benches
irrespective of their size are considered as
decisions of the court. The practice has
developed that a larger Bench is entitled to
overrule the decision of a smaller Bench
notwithstanding the fact that each of the
decisions is that of the court. That principle,
however, would not apply in the present
situation and since we are sitting as a Bench
of Seven we are not entitled to reverse the
decision
of
the
Constitution
Bench.
Overruling when made by a larger Bench of
an earlier decision of a smaller one is
intended to take away the precedent value of
the decision without affecting the binding
effect of the decision in the particular case.
Antulay, therefore, is not entitled to take
advantage of the matter being before a
larger Bench. In fact, if it is a case of
exercise of inherent powers to rectify a
mistake it was open even to a Five Judge
Bench to do that and it did not require a
Bench larger than the Constitution Bench
for that purpose."

48. In the aforesaid case of A.R.
Antulay (Supra), in a dissenting opinion by
one of Hon'ble Judge of the Apex Court,
though on the issue of per-incuriam, it is in
consonance with the view expressed in the
majority judgement, and worthy of mention
and recorded in paragraphs 182 and 183 of
the said report is being reproduced
hereinafter:-

".......182. It is asserted that the
impugned directions issued by the FiveJudge Bench was per incuriam as it
ignored the statute and the earlier Chadha
case [AIR 1966 SC 1418 : (1966) 2 SCR
678 : 1966 Cri LJ 1071] .

183. But the point is that the
circumstance that a decision is reached per
incuriam, merely serves to denude the
decision of its precedent value. Such a
decision would not be binding as a judicial
precedent.
A
co-ordinate
Bench
can
disagree with it and decline to follow it. A
larger Bench can overrule such decision.
When a previous decision is so overruled it
does not happen -- nor has the overruling
Bench any jurisdiction so to do -- that the
finality of the operative order, inter partes,
in the previous decision is overturned. In
this context the word ''decision' means only
the reason for the previous order and not
the operative order in the previous
decision, binding inter partes. Even if a
previous decision is overruled by a larger
Bench, the efficacy and binding nature, of
the adjudication expressed in the operative
order remains undisturbed inter partes.
Even if the earlier decision of the FiveJudge Bench is per incuriam the operative
part of the order cannot be interfered
within the manner now sought to be done.
That apart the Five-Judge Bench gave its
reason. The reason, in our opinion, may or
may not be sufficient. There is advertence
to Section 7(1) of the 1952 Act and to the
206 INDIAN LAW REPORTS ALLAHABAD SERIES
exclusive jurisdiction created thereunder.
There is also reference to Section 407 of
the Criminal Procedure Code. Can such a
decision be characterised as one reached
per incuriam? Indeed, Ranganath Misra, J.
says this on the point : (para 105)

"Overruling when made by a
larger Bench of an earlier decision of a
smaller one is intended to take away the
precedent value of the decision without
effecting the binding effect of the decision
in the particular case. Antulay, therefore, is
not entitled to take advantage of the matter
being before a larger Bench."

49. Thus, it would be seen that where
a decision has been rendered per incuriam,
it is robbed of its precedent value and thus,
this Court is unable to follow the aforesaid
decision as it does not take note of the
provisions of Section 45(A) of the U.P.
Consolidation and Holdings Act, 1953 and
for the foregoing reasons, the said decision
of Ram Bhawan (supra) does not come to
the rescue of the respondent no.2.

50. Lastly, decision of Lalta Prasad
(supra) is also distinguishable on facts
inasmuch as in the said case though the
provisions of Section 45(A) of the U.P.
Consolidation and Holdings Act, 1953 has
been considered, but it has been held that
invalidity of the transfer in absence of prior
permission as envisaged under Section
5(1)(c)(ii) of the U.P. Consolidation and
Holdings Act, 1953 does not per se makes
the transfer transaction void or legally
ineffective as the said invalidity is curable
which can be cured before the finalization
of the provisional consolidation scheme.

51. In the case of Lalta Prasad (supra)
the permission was granted on 05.10.1977
and the permission provided that the saledeed should be executed within thirty days,
however, the sale-deeds in question were
executed on 23.02.1978 i.e. after the time
period provided in the said permission.
Thus, apparently, the facts of the aforesaid
case are quite different inasmuch as in that
case there was a permission which was
taken prior to the transfer, but in the instant
case at hand, there is no permission at all,
hence, the said decision also does not help
the respondent no.2.

52. It is settled law that with slight change
in the facts there is huge difference in the
precedent value of a decision. This Court is
fortified in its view in light of the decision of the
Apex Court in the case of Bhavnagar
University vs. Palitana Sugar Mill (P) Ltd. &
Anr., (2003) 2 SCC 111. The relevant
paragraph of the aforesaid report is quoted
hereinafter:-

"59. A decision, as is well known, is
an authority for which it is decided and not
what can logically be deduced therefrom. It is
also well settled that a little difference in facts
or additional facts may make a lot of difference
in the precedential value of a decision. [See
Ram Rakhi v. Union of India [AIR 2002 Del
458 (FB)], Delhi Admn. (NCT of Delhi) v.
Manohar Lal [(2002) 7 SCC 222 : 2002 SCC
(Cri) 1670 : AIR 2002 SC 3088], Haryana
Financial Corpn. v. Jagdamba Oil Mills[(2002)
3 SCC 496 : JT (2002) 1 SC 482] and Nalini
Mahajan (Dr) v. Director of Income Tax
(Investigation) [(2002) 257 ITR 123 (Del)] .]"

53.