# DEPUTY DIRECTOR OF CONSOLIDATION, AZAMGARH v. DEEN BANDHU RAI

- **Citation:** [1964] 4 S.C.R. 560
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** S. K. DAs, AcTING C. J, K. SuBBA RAo, Raghubar Dayal N. Rajagopala Ayyangar, J. R. MuoHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/deputy-director-of-consolidation-azamgarh-v-deen-bandhu-rai-3174
- **Pages:** 16

## Headnote

Consolidation of Holdings-Application for permission to transfer-Grounds of reiection by Settlement Officer-U.P. Consolidadation of Holdings Act, 1953 (U.P. Act No. V of 1954), ss. 13, H,
15, 16, 18, 19, 20 and 23.
The four respondents made two applications to the Settlement
Officer Consolidation, for permission under sub-s. ( 1) of s. l 6A
for the U.P. Consolidation of Holdings Act 1953 for transfer by
way of exchange of certain plots in 11 villages. The proceedings for
consolidation were in progress in all the 11 villages. The settlement officer refused the permission under sub-section (2) of s. 16A
of the Act and the same was confirmed by the Deputy Director
of Consolidation.
The respondents ch•llenged the said orde" of
Consolidation authorities in a writ petition filed before the High
Court.
The learned single judge dismissed the petition but the
respondents succeeded in a special appeal before the division bench.
The Division Bench held that s. 16A(2) of the Act was mandatory. Under it the Settlement Officer is bound to grant permission to respondents as the exchange was not likely to defeat the
scheme· of corisolidation and they directed the Settlement Officer
to pass an order keeping in view the aforesaid principles.
The
Deputy Director of
Consolidation
preferred
this appeal with
Special leave.
Held: (1) that where an application for transfer fell within
the terms of s. 16A(l) i.e., where it was filed at the stage referred
to in it, the settlement officer is enjoined to allow the application
unless the proposed transfer is likely
to
defeat the scheme of
consolidation.
(2) that if there happened to be conflict between "a principle"
as formulated under s. 18 or a concrete "proposal" as confirmed
under s. 23 on the one hand and the transfer prayed for on the
other, the settlement officer would be entitled to refuse the permission to transfer under section 16A(2) of the Act but otherwise
the application for transfer would be allowed if it satisfied the
conditions laid down under s. 16A(l) and 16A(2) of the Act. It
is for the settlement officer to decide whether such conflicts exist
or not.
(3) that the direction of the learned Judges of Division Bench
to the Settlement Officer was not .in accordance with the provision of s. 16A(2) read with other relevant provisions of the Act.
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4 S.C.R.
SUPREME COURT REPORTS
561
CIVIL APPELLATE JuiUSDICTION : Civil Appeal No. 483
of 1%3.
Appeal by special leave from the judgment and decree
dated Mach 19, 1%2 of the Allahabad High Court in Sepcial Appeal No. 56 of 1%1.
C. B. Agarwala, K. B. Garg and C. P. Lal, for the
appellants.
f. P. Goyal, for the respondents.
August 23, 1%3. The Judgment of the Court was deJhrered by
AYYANGAR J.-Section 16-A of the U.P. Consolidation
of Holdings Act, 1953 (U.P. Act No. V of 1954), which
for brevity we shall refer to as the Act as it stood at the
relevant date, enacted :
"16-A. (1) After the publication of the statement under
section 16 and until the issue of a notification under
seccion 52, a tenure-holder shall not, except with the
permission in writing of the Settlement Officer (Consolidation) previously obtained, transfer by way of sale,
gift or exchange any plot or share in any holding included in the scheme of consolidation notwithstanding
anything contained in the U.P. Zamindari Abolition
and Land Reforms Act, 1950.
(2) The Settlement Officer shall grant the permission
referred to in sub-section ( 1) unless for reasons to be
recorded in writing he is satisfied that the proposed
transfer is likely to defeat the scheme of consolidation."
The four respondents before us made two applications to
the Settlement Officer Consolidation, for permission under
sub-s. ( 1) of the above provision for transfer by way of
exchange of certain plots in 11 villages which were includded in schemes of consolidation in those several villages
in which such proceedings were taking place. The officer,
however, refused the permission sought under sub-s.(2)
and his decis

## Text

19'3
August 23
560
SUPREME COURT REPORTS
[1%4]
DEPUTY DIRECTOR OF CONSOLIDATION,
AZAMGARH
v.
DEEN BANDHU RAI
(S. K. DAs, AcTING C. J., K. SuBBA RAo, RAGHUBAR DAYAL
N. RAJAGOPALA AYYANGAR AND J. R. MuoHOLKAR, JJ.)
Consolidation of Holdings-Application for permission to transfer-Grounds of reiection by Settlement Officer-U.P. Consolidadation of Holdings Act, 1953 (U.P. Act No. V of 1954), ss. 13, H,
15, 16, 18, 19, 20 and 23.
The four respondents made two applications to the Settlement
Officer Consolidation, for permission under sub-s. ( 1) of s. l 6A
for the U.P. Consolidation of Holdings Act 1953 for transfer by
way of exchange of certain plots in 11 villages. The proceedings for
consolidation were in progress in all the 11 villages. The settlement officer refused the permission under sub-section (2) of s. 16A
of the Act and the same was confirmed by the Deputy Director
of Consolidation.
The respondents ch•llenged the said orde" of
Consolidation authorities in a writ petition filed before the High
Court.
The learned single judge dismissed the petition but the
respondents succeeded in a special appeal before the division bench.
The Division Bench held that s. 16A(2) of the Act was mandatory. Under it the Settlement Officer is bound to grant permission to respondents as the exchange was not likely to defeat the
scheme· of corisolidation and they directed the Settlement Officer
to pass an order keeping in view the aforesaid principles.
The
Deputy Director of
Consolidation
preferred
this appeal with
Special leave.
Held: (1) that where an application for transfer fell within
the terms of s. 16A(l) i.e., where it was filed at the stage referred
to in it, the settlement officer is enjoined to allow the application
unless the proposed transfer is likely
to
defeat the scheme of
consolidation.
(2) that if there happened to be conflict between "a principle"
as formulated under s. 18 or a concrete "proposal" as confirmed
under s. 23 on the one hand and the transfer prayed for on the
other, the settlement officer would be entitled to refuse the permission to transfer under section 16A(2) of the Act but otherwise
the application for transfer would be allowed if it satisfied the
conditions laid down under s. 16A(l) and 16A(2) of the Act. It
is for the settlement officer to decide whether such conflicts exist
or not.
(3) that the direction of the learned Judges of Division Bench
to the Settlement Officer was not .in accordance with the provision of s. 16A(2) read with other relevant provisions of the Act.
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-
4 S.C.R.
SUPREME COURT REPORTS
561
CIVIL APPELLATE JuiUSDICTION : Civil Appeal No. 483
of 1%3.
Appeal by special leave from the judgment and decree
dated Mach 19, 1%2 of the Allahabad High Court in Sepcial Appeal No. 56 of 1%1.
C. B. Agarwala, K. B. Garg and C. P. Lal, for the
appellants.
f. P. Goyal, for the respondents.
August 23, 1%3. The Judgment of the Court was deJhrered by
AYYANGAR J.-Section 16-A of the U.P. Consolidation
of Holdings Act, 1953 (U.P. Act No. V of 1954), which
for brevity we shall refer to as the Act as it stood at the
relevant date, enacted :
"16-A. (1) After the publication of the statement under
section 16 and until the issue of a notification under
seccion 52, a tenure-holder shall not, except with the
permission in writing of the Settlement Officer (Consolidation) previously obtained, transfer by way of sale,
gift or exchange any plot or share in any holding included in the scheme of consolidation notwithstanding
anything contained in the U.P. Zamindari Abolition
and Land Reforms Act, 1950.
(2) The Settlement Officer shall grant the permission
referred to in sub-section ( 1) unless for reasons to be
recorded in writing he is satisfied that the proposed
transfer is likely to defeat the scheme of consolidation."
The four respondents before us made two applications to
the Settlement Officer Consolidation, for permission under
sub-s. ( 1) of the above provision for transfer by way of
exchange of certain plots in 11 villages which were includded in schemes of consolidation in those several villages
in which such proceedings were taking place. The officer,
however, refused the permission sought under sub-s.(2)
and his decision was affirmed on an application by way
of revision filed by the respondents, by the Deputy Director of Consolidation. Challenging the lagality of the said
orders of the Consolidation authorities the respondents filed
a petition before the High Court of Allahabad for quashing
the same by the issue of a Writ of Certiorari under
Art. 226 of the Constitution. The learned Single Judge
1963
Deputy Director
of Consolidation,
A1:amgarh
v.
Deen Bandhu
Rai.
Ayyangor, f.
1963
Deputy Director
of Consolidation,
Azamgarh
v.
Deen Bandhu
Rai.
t1yyangar, /.
562
SUPREME COURT REPORTS
[1964]
who heard the petition dismissed it.
A special appeal
was thereupon preferred and the Bench allowed the
appeal holding that the Settlement Officer in passing
his order rejecting the applications for exchange had
proceeded on grounds not germane for. the purpose on
the terms of the statute and on that finding set it side and
issued a writ of mandamus directing the Settlement Officer to pass fresh orders in accordance with the law as was
explained in their judgment. Aggrieved by this the Settlement authorities-the Deputy Director of Consolidation
and the Settlement Officer, Consolidation, sought a certificate from the High Couu: under Art. 133(1) (c) of the
Constitution but this was refused. They then applied for
and obtained special leave of this Court under Art. 136
and that i~ how the appeal is before us.
After hearing learned Counsel for the parties we have
reached the conclusion that while the learned Judges of
the High Court were right in setting aside the order of the
Consolidation authorities refusing the application under
s. 16-A of the Act,
the
directions which the High
Court gave to the Settlement Officer in the matter of
his reconsidering the applications were in their turn
not proper and consequently while the appeal has to be
allowed, the applications have to be remitted to the Settlement Officer for being disposed of properly in accordance
with law.
We shall now proceed to set out our reasons for the
above conclusion.
The facts of the case do not appear very clearly from
the proceedings which are on the record. As far, however, as could be gathered they are briefly as follows: There
are four respondents. Respondents 1 and 2 are brothers,
being the sons of the 3rd respondent, and the 4th respondent is their. mother. A division had been effected of the
entire properties of the family by a decree of Court passed
in 1940. Under this decree and the division effected thereby, while respondents I and 2 i.e., the sons have got parceis
of land in all the 11 villages, the third respondent-the
father -has land in 8 villages and the 4th respondent-the
mother-in 5 villages. In all these 11. villages proceedings
for consolidation were in progress. While so, two applications were made to the Settlement Officer for permission
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4 S.C.R.
SUPREME COURT REPORTS
563
to exchange the lands in such a way as to make the sons
(respondents 1 and 2) the sole tenureholders in 3 villages,
and the father (the third respondent) the sole tenureholder
in 6 villages and petitioner 4 to be the sole tenureholder
in respect of the property in the other two villages. We
shall be referring a little later to the stage which the consolidation proceedings had reached by the time the application was filed, but passing over this, it might be stated
that the petitions for exchange were rejected by the Settlement Officer by an order dated February 28, 1951. As
stated earlier, a revision to the Deputy Director was also
dismissed by an order dated February 28, 1959 but nothing
rums on this. It is the legality and propriety of the reasons
given for the rejection of the applications by the Settlement
Officer that forms the subject of debate between the parties.
To appreciate the points urged before us by learned
Counsel for the appellant it would be necessary to read
certain of the relevant provisions of the Act which bear
upon the procedure for consolidation as well as the grounds
upon which an application seeking permission to transfer
could be dismissed. We might point out even at this stage
that the Act has undergone radical alterations bv amendments effected in 1958 and 1963, and what we ai:e setting
out are the provisions as they stood as the time relevant
to this appeal.
The preamble as well as the short title of the Act
specify the object of the enactment as being "the consolidation of agricultural holdings for the development of agriculture". The expression "Consolidation" is defined in
s. 3(2) thus:
"3.(2). 'Consolidation' means the re-arrangement of
holdings in any area between the several tenure-holders
entitled thereto in such a way as to make the holdings
held by them as such more compact'',
omitting the portions not material for our purpose. Section 4 with which Ch. II opens enacts;
"4.(1) With a view to consolidation, the State Govrenment may declare that it has decided to make a
scheme of consolidation for any district or other local
area.
(2) Every such declaration shall be published in the
official Gazette and in each village of the said district
1963
Deputy Director
of Consolidation.
Azamgarh
v.
Deen Bandhu
Rai.
Ayyangar, /.
:1963
Deputy Direct(Jf'
of Consolidation,
Azamgarh
v.
Dun Bandhu
Rai.
Ayyangar, f.
564
SUPREME COURT REPORTS
[1964]
or local area."
Section 5 specifies the statutory effect of a declaration
under s. 4. This is stated to be that the district or the
local area "shall be deemed to be under consolidation operations from the specified date and the duty of preparing
and maintaining khasra and the Annual Register shalt
stand transferred to the Settlement Officer". The other
provisions of this chapter (Ch. II) relate to the examination
of the revenue records and the correction of entries therein
and provide for objections being taken to the provisionally
published statements of plots, tenureholders
and
other
details regarding these. Chapter III which is more relevant for the question in issue in the present appeal is headed
'Preparation of Consolidation Scheme' and that is the
Chapter in which s. 16-A occurs.
Section
13 contains,
what might be termed, a definition of a 'Consolidation
Scheme' and "it runs:
"13. The ())nsolidation Scheme shall consist of-
( a) the statement of principles referred to in section
14
(b) The statement of proposals referred to in section
19 and
(c) such other statements as may be prescribed."
Section 14 which is referred to ins. 13(a) enacts:
"14. ( 1) The Assistant ())nsolidation Officer shall prepare in respect of each village under consolidation operations, a statement (hereinafter called the Statement
of Principles) setting forth in writing the principles to
be followed in framing the consolidation scheme. The
statement shall also show in broad outlines the proposed resurvey and layout of the village including-
( a) the existing and the proposed means of communications:
(b) the area proposed to be planted with trees or to
be set apart for pasture, fisheries, manure pits,
khaliyans, cremation grounds and grave-yards;
( c) the area to be set apart for abadi;
(d) the location of works of public utility;
( e) provision for public conservancy;
(ee} the basis on which the tenureholders will contribute towards land required for public purposes and
the extent to which vacant land may be utilised
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4 S.C.R.
SUPREME COURT REPORTS
565
with a view to the said purpose; and
(f) any other matter which may be prescribed,
(2) The Assistant Consolidation Officer shall prepare
the statement in consultation with the Consolidation
Committee in the manner prescribed.
(3) If there is a difference of opinion between the
Assistant Consolidation Officer and the Consolidation
Committee in regard to any matter, it shall be referred
to the Settlement Officer (Consolidation) whose decision shall be final."
Section 15 is, as it were, a rider to s. 14 and sets out the
principles to be followed in the preparation of the "statement of principles" under s. 14. It reads:
15. ( 1) The Assistant Consolidation Officer shall, in
preparing the statement of principles under section 14,
have regard to the following principles:
(a) the allotment of plots shall be made on the rental
value thereof:
Provided that the area of the plots proposed to
be allotted shall not differ in any case, except with
the permission of the Director of Consolidation by
more than 20 per cent from the area of the original plots:
(b) as far as possible, only those tenure-holders shall
get land in any particular block who already held
land therein and the number of chaks to be allotted to each tenureholder excluding areas earmarked for abadi and those reserved for public purpose.
shall not exceed the number of blocks in the village except with the permission of the Director of
Consolidation of Holdings ;
( c) every tenure-holder is, as far as possible, allotted
land at the place where he holds the largest part
of holdings;
(d) the tenure-holders belonging to the same family
shall, as far as possible, be given neighbouring
chaks;
( e) location of the residential house of the tenureholder or improvement, if any, made by him shall
as far as possible, be taken into account in allot~
ting chaks;
(f) small tenure-holders shall, as far as possible, be
1963
Deputy Director
of Consolidation,
Azamgarh
v.
Deen Bandhu
Rai.
Ayyangar, ],
1963
Deputy Director
of Consolidation,
Azamgarh
v.
Deen Bandhu
Rai.
Ayyangar, /.
566
SUPREME COURT REPORTS
[1964]
given land near the village abadi.
(g) an existing compact holding or farm which is 6t
acres or more in area, shall not, as far as possible,
be disturbed or divided.
(1-A) ......................... .
(2) The Assistant Consolidation Officer shall also have
regard to such other principles as may be prescribed
or specified by the Consolidation Committee and are
not inconsistent with the provisions of this Act and the
rules."
Section 16 provides for the publication of the principles
prepared under s. 14 in the village to which that statement
relates, and under s. 16 (2) persons likely to be affected by
the scheme are enabled to make objections "in the manner
prescribed" within 15 days of the publication. This
is
f9llowed by s. 16-A which we have already set out.
Section 17 deals with the disposal of objections filed under
s. 16(2) and appeals from such orders and under s. 18
where no objections are filed or where they are filed and
are finally disposed of provision is made for the confirmation of the statement and thereupon the statement, as
confirmed, is declared to become final and is directed to be
published in the village. Section 19 is the provision referred to in s. B(b) as relating to the statement of proposals.
That section enacts;
"19.(1) As soon as ·the statement has been confirmed
under section 18, the Assistant Consolidation Officer
shall, in _accordance with the Statement, prepare a
statement of proposal in the prescribed form showing-
( a) the particulars specified in clause (b) of sub-section ( 1) of section 11 in respect of each tenureholder;
(b) the khasra number of the plots proposed to be allotted to each tenureholder in lieu of the original
plots of his holding, the nature of rights therein,
the rental value and soil classification of the field
so allotted;
( c) briefly the reasons in support of the proposal in
caluse (b).
( d) the compensation for trees; wells, buildings or any
other improvement calculated in the ·manner prescribed;
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i
4 S.C.R.
SUPREME COURT REPORTS
567
( e) the area earmarked for public purposes and the
layout of such areas and the rental value thereof;
( f) the revenue or rent of the allotted plot payable by
the tenure-holder; and
(g) such other particulars as may be prescribed.
(2) The Statement of proposals shall be accompanied
by a village map showing the proposed arrangement of
plots.
( 3) Whenever in preparing a Statement of Proposal
it appears to the Assistant Consolidation Officer that
it is necessary to amalgamate any land used for public
purposes any holding in the scheme, he shall make a
declaration to that effect stating in such declaration
that it is proposed that the rights of the public as
well as of all individuals in or over the land shall be
transferred to any other land earmarked for public
purposes in the statement and whenever the rights are
so transferred they shall stand extinguished in the land
from which they are transferred.
( 4) The Statement of Proposals shall be prepared in
consultation with the Consolidation Committee in the
manner prescribed.
(5) If there is difference of opinion between the Assistant Consolidation Officer and the Consolidation Committee in regard to any matter contained in the Statement of Proposals, it shall be referred to the Settlement
Officer (Consolidation) whose decision shall be final."
Under s. 20(1) the statement of proposals prepared under
s. 19 is required to be published in the village and under
s. 20(2) the persons affected by "the proposals" are permitted within 15 days of such publication to file objections
in writing before the Assistant Consolidation Officer. Section 21 deals with the disposal of objections filed under
s. 20 and the procedure to be followed in such disposal.
Section 23 comes into play where no objections are filed
under s. 20 or if they are filed, after their disposal and the
second sub-section of this section enacts:
"23.(2) The Statement as confirmed shall be published
and shall be final except in so far as it relates to land
which is the subject-matter of references made to the
Civil Judge and which have not been disposed of till
then."
1963
Deputy Director
of Consolidation,
Azamgarh
v.
Deen Bandhu
Rai.
Ayyangar, f.
1963
Deputy Director
of Consolidation,
Azamgarh
v.
Dun Bandhu
Rai.
Ayyangar, /.
568
SUPREME COURT REPORTS
[196'4]
The other chapters and provisions of the Act deal with the
execution and enforcement of schemes so framed and are
not necessary to be set out.
We shall now proceed to narrate the details of the facts
so far as they appear from the record. The exact date upon
which the applications for permission to exchange was
filed is not ascertainable from the record; nor, of course,
the details of the exact prayer made, with reference to
each of the 11 villages. The following is, however, what
is gatherable from the writ petition filed by the respondents; The 11 villages in which the properties of the petitioners are situate are: (!) Garhar Buzurug, (2) Mahmauni,
(3) · Bibipur, (4) Bhitari, (5) Tahabarpur, (6) Taraudhi,
(7) Shambhupur,
(8) Shrikantpur,
(9) Lachahara,
(10) Nawada, and (11) Garhar Khurda. Of these, the
consolidation work in Garhar Buzurug, Mahmauni, Bibipur, Bhitari and Tahabarpur was at the stage of proceedings under s. 12 of the Act and in Nawada and Lachahara proceedings under s. 20 were going on and in Shrikantpur and Shambhupur the scheme had been confirmed
and was being enforced. In the village of Garhar Khurda
publication of the statement of proposals under s. 19 had
been objected to and as a result of the objection being upheld fresh principles were directed to be formulated under
s. 16 and this was being done.
This was admitted by the Consolidation authorities to
be a correct representation of the stage at which the proceedings stood on the date of the application. There was
one further allegation in the writ petition to which it i!
necessary to refer and this was that in the villages of Shrikantpur, Shambhupur and Lachahara the properties sought
be exchanged were in adjacent chaks.
This would be the convenient point to refer to the
grounds upon which the Settlement Officer rejected the
applications under s. 16-A(2). As stated earlier, there were
two applications-one by the father and the two sons, and
the other by the mother and the sons. After setting out
briefly the gist of the applications the Settlement Officer
stated:
"Under this section [16-A(Z)] it is to be cosidered
as to whether the exchange 1s likely to defeat the
scheme of consolidation or not."
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4 :;.c.R.
• SUPREME. COURT REPORTS
569
· · He then pointed out that from his file and the .inquiry- ---
~- 1963 ·
.
which he conducted it was disclosed that the statement of
'
-
principles under s. 16 had been published in 7 villages,, DfeCputy D
1
.i;e~tor
hil ·
f 5 be ·d
th
· · 1
·
f o
onso •aat•on
w
e m respect o
,
s1 es
e prmc1p es, a statement o
Azamgarh '
proposals had also been published· under s. 20 of the
v. ,
'
Act. · Nothing was mentioned in it about .the other 4 vilDeen Bandhu
lages in regard to which also application for exchange had
Rai.
been made ... He promised the disC:ussion of · the reasons
for rejecting the applications by referring to the report of·
Ayy•ngar, l· .
the Consolidation Officer which he had called for on receipt
of the tWo applications thus: ·
·
·
"the consolidation officer reported' tliat chak formation ·
was in hand in these villages."
.
By "these villages" he apparently meant the 5 villages of
Shamhhupur, Nawada, Garhar Khurda, Lachahara and
Sfilik?-ntpur in which . not merely the principles but "the
proposals"' also had been published under· s. 20 ·and he
continued:
·
·
"I entirely agree with him that the exchange of land, .
whieh is of considerably big area shall disturb either
the concluding phase of chak formation or the pro,
posed chaks already formed. If the exchange is permitted, the provisions of Section 15 ( c) and (b) cif the
Act shall necessitate the review of the chaks of these
tenureholders and obviously such a review shall dislo-
. cate and disturb other chak holders also'»
and he concluded by saying:
.
"By the exchange prayed for, the parties, who are big
tenureholders would become bigger still and the obvi- · ·
ous increase of land in their favour shall adversely ·
affect .the interest of ' other' small tenureholders and
· would cause undesired disturbance and dislocation to
them. Moreover, as the parties :ire father, mother and
sons, as far as possible they would be deriving benefits
of see- 15( d) of the C.H. Act also."
.
The learned Judges of the Division Bench analysed the
grounds given by the Settlement Officer for rejecting the
application arid came to the conclusion that the two mairi
reasons which induced him to make an order adverse to
the respondents were (1) that, having regard _to the stage.
at which the chak formation had reached the granting of
the petition would entail considerable work on the officers
'
,
.
.
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\
37-2 S. C. India/64
1963
Deputy Director
of Consolidation,
Azamgarh
v.
Deen Bandhu
Rai
Ayyangar, /.
570
SUPREME COURT REPORTS
[1%4.]
of the Consolidation Department in the matter of readjusting the chaks of others, (2) that the petitioners being
big land-holders the granting of permission would mean
that if the exchanges were allowed they
would have
become even bigger land-holders. The learned
Judges
pointed ont that neither of these considerations would be
legitimate or pertinent grounds on which an application
for exchange made under s. 16-A(l) could be rejected and
so the writ petition was granted.
If the terms of s. 16-A(2) were borne in mind i[ is
clear that where an application fell within the terms of
s. 16-A(l) i.e., where it was filed at the stage referred to
in it, the Settlement Officer is enjoined to allow the appl ication unless the conditions laid down in the last portion
of sub-sec. (2) were satisfied. The condition is that the
officer should be satisfied that the proposed transfer is likely
to defeat the scheme of consolidation. One of the poinrs
urged by the respondents before the High Court was as
regards the meaning of these words "the scheme of consolidation". The contention was that the word "scheme" had
to· be understood in a popular sense or as explained in a
dictionary, and meant "the mode" or "process" of effecting
consolidation. On this construction it was contended that
as the exchanges for which permission was sought would
have, if allowed, effected an aggregation, the applications
should have been granted. Both the learned Single Judge
as well as the learned Judges on appeal rejected this submission and held that by "the scheme of consolidation" was
meant not some method of effecting consolidation as popufarlv understood, but the words were a specific reference
to the provisions of s. 13( a), (b) and ( c) -which we have
quoted. This is obviously correct and, indeed, learned
Counsel for the respondent did not dispute the correctness
of this position before us.
The next question is whether the reasons given for the
rejection of the application for exchange contravene the
matter set out in s. 13 (a), (b) or ( c). It is to the criteria
there iaid down that the Settlement Officer has to <lirect
his attention and it is only where he is satisfied that either
"the principles" formulated under s. i4 or "the proposals"
under s. 19 or some other matters prescribed to be taken
into account under s. 13( c) are contravened by allowing
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4 S.C.R.
SUPREME COURT REPORTS
571
the proposed transfer, that he could reject an application
and besides he is enjoyed to record the reasons which
induce him to do so in writing.
We should point out that the order of the Settlement
Officer is far from clear as to the precise grounds upon
which the rejection was based.
We also entertain little
doubt about two points: (1) that at least in great part the
reasons underlying the order of the Settlement Officer for
rejecting the applications were the two we have set out
earlier as those relied on by the High Court as grounds
for holding his order to be invalid, and (2) that these
reasons are not germane or pertinent for rejecting the application for exchange under s. 16-A(2). If these matters were
taken into account, it is clear that the resulting order could
not be justified and we consider, therefore, that the learned
Judges of the High Court acted properly in setting aside
the order ·of the Settlemrnt Officer under Art. 226.
Before parting with the order of the Settlement Officer
there is one other matter also to which reference has to
be made. In their petition to the High Court and in the
affidavit they filed in support of their petition, the respondents asserted that the lands in 3 villages which they
sought to cxchange-Shrikantpur, Shambhupur and Lachahara-were in adjacent chaks-in the "proposals". This
allegation was not denied by the appellant in the counteraffidavit filed before the High Court, but on the other hand
there was an express admission regarding the correctness of
this allegation. If really the lands were in adjacent and
contiguous chaks, it is difficult to see how the granting of
the permission to exchange would violate any "principle"
or "proposal", for in such an event the rights of no others
would be affected and instead of a mother _and a son or
a father and the son holding adjacent chaks, one of them
would be holding both. Mr. Aggarwala did not contest
this position either. In fact, even the Settlement Officer
pointed out in his order that having regard to the relationship between the parties they would be "deriving benefits
of s. 15 ( d) of the Act", which Mr. Aggarwala suggested
was a reference to the feature of contingulty in the light
of their relationship. If this was what the officer had in
mind, that would be a circumstance which should have led
him to allow the exchange in regard to some, at least, of
1963
Deputy Dil:ector
of Consolidatiolf,
Azamgarh
v.
Deen Ba111lhu
Rai.
A yyan gar, J.
1963
Deputy Director
of Consolidation,
Azamgarh
v.
Deen Bandhu
Rai.
Ayyangar, f.
572
SUPREME COURT REPORTS
[1964}
the lands, and in this view the rejection of the permission
to exchange in respect of every item of land could not be
sustained. This would be an additional reason why that
order should be set aside.
\Ve shall deal next with the complaint of the learned
Counsel for the appellant regar<linl:( the directions of the
learned Judges to the Settlement OHiccr in regard to the
fresh disposal of the applications. The learned Judges explained what, according to them, was the law on the point
and practically required the Settlement Officer to grant
the permission sought and it is this portion of the judgment of the learned Judges that is challenged by the appellant as erroneous and incorrect. The learned Judges stated
the position thus:
"It seems to us that there was nothing in the statement
of principles or statement of proposals which could
militate against formation of larger chaks in the case
of a particular tenure-holder. On the contrary the
whole scheme of the Act including the statements of
principles and proposals envisage that as far as possible
every tenure-holder should have one single Chak and
the chak should be as large as possihle. The transfer,
therefore, instead of defeating the scheme of consolidation would only have furthered it . . . . . . Section
16-A(2) is in the mandatory form in which the Settlement Officer is bound to grant permission unless he is
satisfied that the proposed transfer is likely to defeat
the scheme of consolidation and as we have arrived at
the view that this exchange was not likely to defeat
the scheme, he was bound ta grant permission",
and in the concluding portion of the judgment they directed the Settlement Officer to pass an order keeping in view
the principles of law which thev have set out earlier i.e.,
in the passage extracted. This brings us to the question
as to the scheme of the Act and the precise import of the
phrase "likely to defeat the scheme of consolidation" in
s. 16-A(2).
Adopting the language of s. 13 of the Act, the question to be considered is whether the transfer for which permission is sought would contravene the principles referred
to in s. 14 or the proposals referred to in s. 19. The two
matters to be noticed in respect of both "the principles"
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4 S.C.R.
SUPREME COURT REPORTS
573
of consolidation under s. 14 and of "the proposals" under
s. 19, is that the Act specifically provides ior objections \1cing
filed and for their being considered before the "principles"
or the "proposals" attain finality.
It is
not very clear
whether the present respondents filed or did not file any
objections to t'.1e princip;es or the proposals under s. 16(2)
or s. 20(2) respectively based upon their claim to exchange.
If such obiections have been filed, they would
be dealt with in the manner prescribed and the decision on the ohicctimis and on the application for sane·
tion \VoulJ be rounded
on
t~1e same grounJs.
If,
however, no such objections were filed
the •question
which would have
to he considered by the Settlement
Officer in dealing with the application under s. 16-A(l)
would be whether the !lroposed transfer, if permitted,
would affect substantially and in a concrete manner any
of the "princioks" which had become final under s. 18
or the "proposals"' which were confirmed under s. 23. The
conflict to justify a reiection under s. 16-A(2) must exist
between "a principle"
as
formulated
or
a
concrete
"proposal" as con firmed, on the one hand and the transfer
prayed for. If there should be such a conHict the officer
would be entitled to refuse the permi<1ion but otherwise
the applicant would be entitled to the grant of the permisc :on sought.
We need hardly add that it is for the
officer to decic!e whether these conflicts exist and to pass
a s1<aking order setting out the grounds for holding that
suc:i conflict nist an,! the juris<liction of the Court
would be attract.,:.\ onlv if there were an error apparent
on the face of the record or similar infirmity in his
order. The direction of the learned Judges, therefore,
does not, with great respect to them,
appear to us
to be in accordance with the proper interpretation of
s. 16-A(2) read with the other relevant provisions and
we, therefore, set aside the order of the karned Judges also.
Before concluding there is one matter to which we
have alreacly aJ\crted and that relates to an assertion by
the respondents in thc;r petition to the High Court tha·t
the lands, tran~fer nf w~1ich was sour;ht, \!Vere contiguously
situa:•cd in tlFee o( the villages concrned in the applications.
We ha,·e further noticed that this statement
was admitted bj' the appellant in his counter-affidavit.
1963
Deputy Director
of Consolidation,
A.zamgrrrli
v.
Deen Bandhu
Rai.
Ayyangar, f.
1963
Deputy Director
of Consolidation,
Azatngarh
v.
Deen Bandhu
Rai.
Ayyangar /.
574
SUPREME COURT REPORTS
f1964]
. Mr. Aggarwala, while conceding that if the factual position
was as above, the applications for transfer by way of exchange would have in respect of those plots had to be allowed, submitted that a mistake had been made in drafting the
counter-affidavit in the High Court and that in fact, except in one village, there were lands belonging to third
parties intervening between the chaks of the several respondents in the other two villages.
Normally, there is
no doubt that where allegations of fact are admitted, a
party would not be allowed to go behind them, but this
case is rather peculiar, in that parties do not seem to have
paid att<!llltion to the details of the facts, but rather
concentrated on what they considered to be points of
law. In view of this we consider that it would not
be proper to hold the appellant to the admission made
in his affidavit before the High Court and particularly
in view of the order we are passing directing the Settlement
Officer to dispose of the applications filed to him in
accordance with law, the Settlement Officer could have
regard to the actual location of the plots in the matter of
granting the permission sought.
It is only necessary to mention that subsequent to the
order of the learned Judges of the Division Bench the
Settlement Officer took up the matter afresh and passed
an order on August 31, 1962 granting permission under
s. 16-A(l).
But it is clear on a perusal of the said
order that the same was granted not after any examination of the application with reference to the relevant provisions of the Act and of the "principles" and "proposals"
under ss. 14-18' and ss. 19-23 respectively but only because
of the order of the High Court. Learned Counsel for the
respondents attempted to suggest that that second order
dated August 31, 1962 had become final and therefore
could constitute a preliminary objection to the hearing of
the appeal, on the ground that without setting- aside this
order the appellant could not obtain any relief regarding
the correctness of the order of the High Court now under
appeal. We consider that this objection by the respondents
is without substance as this subsequent order of the Settlement Officer is wholly dependent on and was passed in
mechanical compliance with the order of the High Court,
and if the order of the learned Judges was wrong and
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4 S.C.R.
SUPREME COURT REPORTS
575
ought to be set aside the existence of this order would be
no bar to such a course, for this order of the Settlement
Officer would fall with the order of the High Court on
which it was based.
We therefore allow the appeal and set aside the order
of the learned Judges as also the order of the Settlement
Officer dated August 31, 1962 which was dependent on
it, and direct the Settlement Officer to take the applications
of tl1e respondents for permission to effect the exchange
to his file and dispose of tl1em in accordance witl1 law and
in the light of the observations contained in this judgment.
'We consider it necessary to add, to avoid any misconception, that the Act has (in 1958 and 1963) undergone radical alterations, and the Settlement Officer in dealing with
the applications according to law would have regard to
these later enactments only in so far as they apply to the
case on hand.
In the circumstances of the case we make no order as
to costs in this Court.
THE UNIVERSITY OF MYSORE AND ANR.
ti.
C. D. GOVINDA RAO AND ANR.
(P. B. GAJE"DRAGADKAR, K. SuBBA RAo, K. N. WANCHOO,
N. RAJAGOPALA AYYANGAR AND J. R. MuoHoLKAR, JJ.)
iVrits-(hro VVarranto, Scope of-Appointment of Reader by
Board of .Jppointments
of 1\fysore University-Constitutjon.
Art. 226-jurisdiction of High Court to interfere.
The University of Mysore,
~.<\ppellant no. 1, advertised
inviting applications for 6 posts of Professors and 6 posts of Readers.
A.mong the1n were included the post of a Professor
of
English an<l of a Reader in English.
Candidates for the post of
H.eader \Vere required to possess (a) a first or high second class
1v1aster':-; Degree of an Indian University in the subject; (h)
a
Research Degree of Doctorate standard or published work of a
high standard and
( c) experience of teaching post-graduate classes for 10 years in case of Professors and 5 years in case of Readers.
Anniah Gowda, appellant no. 2, 'vas selected by a Board
of _i\ppointment which was constituted to examine the fitness of
the several applicants and he was appointed a Reader in En~lish
in the Central College, Bangalore.
-
1963
Deputy Director
of C onsolidati1Jrt,
Azamgarh
v.
Deen Bandhu
Rai.
Ayyangar, f.
1963
A~gust 25