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Smt. Asharfunisa Begum Vs. Dy. Director of Consolidation Camp at Hardoi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 547 of 1968
Judge
Reported inAIR1971All87
ActsTenancy Law; Uttar Pradesh Consolidation of Holdings Act, 1953 - Sections 5(1)
AppellantSmt. Asharfunisa Begum
RespondentDy. Director of Consolidation Camp at Hardoi and ors.
Appellant AdvocateR.C. Srivastava and ;S. Rahman, Advs.
Respondent AdvocateH.D. Srivastava, ;Umeshchandra and ;S.P. Pathak, Advs.
DispositionPetition allowed
Excerpt:
property - transfer of holding - section 5 sub-section 1 (c) (ii) of u.p. consolidation of holding act, 1954 - section 5 (1) (c) (ii) restricts only part of holding of tenure-holder - instead of transfer of the whole holding - hence no permission of settlement officer (consolidation) is necessary in case of transfer of the whole holding held by a person in a consolidation area. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is.....gur sharan lal, j. 1. this writ petition which relates to consolidation proceedings under the u.p. consolidation of holdings act, 1953 (hereinafter referred to as 'the act') has been referred to a full bench to enable reconsideration of the division bench decision of this court in ram behari shukla v. munna lal shukla, 1968 all lj 223.2. the facts of the case are briefly these, one bashir mohammad owned bhumidhari and sirdari holdings in village itara, pargana alamnagar, tahsil shahbad of district hardoi, as also land in villages pihani and nepania of the same tahsil and a house in qasba pihani. according to the petitioner smt. ashrafunnisa begum, who is the widow of bashir mohammad, the latter made an oral gift on 24-10-1965 of the aforesaid property in her favour exclusively and.....
Judgment:

Gur Sharan Lal, J.

1. This writ petition which relates to consolidation proceedings under the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as 'the Act') has been referred to a Full Bench to enable reconsideration of the Division Bench decision of this Court in Ram Behari Shukla v. Munna Lal Shukla, 1968 All LJ 223.

2. The facts of the case are briefly these, one Bashir Mohammad owned Bhumidhari and Sirdari holdings in village Itara, Pargana Alamnagar, Tahsil Shahbad of district Hardoi, as also land in villages Pihani and Nepania of the same Tahsil and a house in Qasba Pihani. According to the petitioner Smt. Ashrafunnisa Begum, who is the widow of Bashir Mohammad, the latter made an oral gift on 24-10-1965 of the aforesaid property in her favour exclusively and delivered possession to her. Shortly after Bashir Mohammad died. Thereafter Opposite Party No. 4 Zamir Mohammad, son of Bashir Mohammad, filed an objection claiming exclusive heirship to Bashir Mohammad as his son. The petitioner made an objection claiming exclusive right to the aforesaid property on the basis of the aforesaid oral gift in her favour. The Consolidation Officer to whom the controversy was referred by the Assistant Consolidation Officer rejected the petitioner's claim and held opposite party No. 4 to be the heir of Bashir Mohammad on his death. The claim on the basis of gift was rejected both on the ground that the gift had not been satisfactorily proved and that permission of the Settlement Officer Consolidation to transfer the land under Section 5(1) (c) (ii) of the Act while consolidation proceedings were going on in that village, had not been obtained as required and without such permission the transfer was void. An appeal against the decision was dismissed by the Settlement Officer Consolidation. The petitioner then filed a revision under Section 48 of the Act but the same was also dismissed by the Deputy Director of Consolidation (Opp. party No. 1) who held that the gift which covered both Bhumidhari and Sirdari land could operate only in regard to Bhumidhari land since Sirdari land was non-transferable. About the Bhumidhari land itself heagreed with the conclusions of the aforesaid two lower consolidation authorities. The petitioner then filed this writ petition challenging the order of opposite party No. 1.

3. The petitioner's contention in this court is that since the entire Bhumidhari and the entire Sirdari holding in village Itara was transferred to her, no permission of the Consolidation Officer was required for this transfer. It is also contended that the Deputy Director of Consolidation did not apply his mind nor give his own decision, on the question of gift in regard to which the findings of the two lower consolidation authorities had been questioned in the revision.

4. The writ petition has been contested by opposite party No. 4 who filed a counter affidavit against which the petitioner filed a rejoinder affidavit.

5. A perusal of the order of the Deputy Director of Consolidation of which a copy will be found as Annexure 1 to the writ petition, shows that he proceeded to state in the second paragraph of his order the argument that was advanced before him on behalf of the revisionist (petitioner) by her counsel on the two questions of necessity of obtaining permission of the Settlement Officer Consolidation and the proof of the fact of gift. Then observing that 'there is considerable force in the arguments of the learned counsel for opposite parties' he proceeded to consider only the question whether permission was required and held that it was required. The statement about existence of force in the arguments might very well have been intended to relate to the point of need for permission which was discussed in the ending part of the paragraph. There is substance, therefore, in the argument on the petitioner's side that the order would show that the question whether the gift had been proved or not was never considered by the Deputy Director of Consolidation. The order on this ground needs therefore to be quashed, but only in case it is not found justified on account of the absence of permission of the Settlement Officer Consolidation for making the transfer. The finding of the Consolidation authorities that permission is necessary will now be examined.

6. The relevant part of Section 5 of the Act is reproduced below:--

'5. Effect of Declaration. -- (1) Upon the publication of the notification under 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 areato which the declaration relates; namely

******

(c) notwithstanding anything contained in the U.P. Zamindari Abolition and Land Reforms Act, 1950, no tenure-holder, except with the permission in writing of the Settlement Officer, Consolidation, previously obtained shall-

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

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

Provided that a tenure-holder may continue to use his holding or any part thereof, for any purpose for which it was in use prior to the date specified in the notification issued under Section 4.' The contention of the petitioner's learned counsel is that the bar to transfer by way of sale, gift or exchange without the permission of the Settlement Officer Consolidation created by Sub-clause (ii) of Clause (c) of Sub-section (1) of Section 5 is in respect of part of the holding in the consolidation area and if the whole holding is transferred, no permission will be necessary. On the other hand, the contention on behalf of opposite party No. 4 is that the said Sub-clause (ii) of Clause (c) creates a bar to transfer without permission, be it part of the holding or the whole holding. Two cases have been cited at the bar in this connection. One is a Single Judge decision in Leelawati (Nathi Singh) v. Kanchhida, 1962 RD (HC) 226 in which a provision not very similar to that in Section 5 (1) (c) (ii) and contained in old Section 16-A of the Act was interpreted. Sub-section (1) of Section 16-A ran as below:-- '16-A (1) -- After the publication of the statement under Section 16 and until the issue of a notification under Section 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.'

On a question arising whether the bar to transfer without the permission of the Settlement Officer (Consolidation) existed only where part in any holding was transferred or also to the transfer of the holding as a whole, A. P. Srivastava J. held that it extended to the transfer of a holding as a whole as well. The reason given for the finding was that the provision meant that one or more of the plots of the Khata could not betransferred without permission and so it was not possible to accept the contention that though one or more plots of Khata could not be transferred, the whole Khata could be transferred without permission. There was no elaboration but the reasoning appears to have been that when the transfer of any plot or share of a holding was prohibited it meant a prohibition against a transfer of the whole holding as well.

The provision in Section 5 (1) (c) (ii) directly came to be considered by a learned Single Judge of this Court in a writ petition case. He took the view that the prohibition was only against the transfer of part of a holding and not of the whole holding. On a special appeal being filed the view taken by the learned Single Judge was affirmed. The special appeal case, is reported in 1968 All LJ 223. It appears from the report of the case that though the learned Single Judge was aware of the broad proposition that where there is a prohibition against the transfer of a part of the holding it should be construed to mean prohibition against the transfer of the whole holding, yet for two reasons he held the said Sub-clause (ii) of Clause (c) to contain a prohibition against transfer of a part of a holding only and not the whole holding. One reason was that while in Sub-clause (i) of Clause (c) the Legislature had used the words 'his holding or any part thereof thereby clearly indicating the provision in that sub-clause to apply both to the holding as a whole and to any part thereof, in Sub-clause (ii) of the same Clause (c) different words were used, they being 'any part of his holding'. This difference in language appeared to the learned Single Judge to indicate that in the case of Sub-clause (ii) the provision was meant to apply only 'to any part' but not to the whole. In our view it is not possible to make much out of this difference in phraseology between Sub-clauses (ii) and (i) as it is not possible to say with certainty that this difference was deliberate. The words 'any part of his holding', if used in Sub-clause (i) in place of the words 'holding or any part thereof would rot bring about any change in the meaning of Sub-clause (i), for it would not even then be possible to say that the prohibition about using the holding for purposes not connected with agriculture, etc. related to a part only of the holding and not the whole, though of course the expression 'holding or any part' makes the provision more obvious in regard to its being applicable to the whole holding also besides being applicable to any part thereof.

Having regard to the nature of the prohibition in Sub-clause (ii), if emphasis is placed on the word 'any' In the expression 'any part of his holding', then the prohibition would extend to the whole as well, but if emphasis is placed on the word 'part' in the same expression, then it would extend to a part of the holding only and not to the whole. If the word 'only' had appeared after the words 'any part' the position would have been beyond controversy and the provision would have extended only to the transfer of a part of the holding and not to the whole holding. Sub-clause (ii) by itself is thus open to both the interpretations and the proper interpretation to be placed upon it has therefore to be determined having regard to the object underlying the prohibition and the scheme and object of the Act as a whole. The prohibition contained in the sub-clause is a restriction upon the fundamental right conferred by Clause (f) of Article 19 of the Constitution of India, of course in cases where the nature of the holding carries with it the right of transfer under the U.P. Zamindari Abolition and Land Reforms Act. The restriction must be justifiable in order to be valid. The meaning to be given to Sub-clause (ii) must be arrived at, therefore, having regard also to the requirement of keeping the sub-clause valid. In other words, if out of the two interpretations possible, one will maintain the validity of the sub-clause while, the other will not, then the first interpretation should be adopted.

7. The second reason for theinterpretation placed by the learned Single Judge and the Division Bench on the sub-clause to the effect that it prohibits without the permission of the Settlement Officer (Consolidation) transfer of a part only of a holding and not the whole was that the object underlying the prohibition was fulfilled by prohibiting the transfer of a part only of a holding and did not call for prohibition of transfer of the holding as a whole. During consolidation operations complications will arise if only part of a holding is transferred because then there will spring up two tenure-holders the original tenure-holder holding one part and the transferee holding the other part leading to complications. If however the whole holding is transferred then all that will be necessary in carrying out the consolidation operations in progress will be to substitute the name of the transferee in place of that of the original tenure-holder. There is no doubt that if it can be shown that the transfer of the whole holding will not create any complications and hindrance in the progress of the consolidation operations then the restriction in regard to transfer of the whole holding would be unjustified and unreasonable and therefore hitby Article 13 read with Article 19(1)(f) of the Constitution.

8. In connection with this question of complication arising in the consolidation operations by reason of transfer, the question arose at the hearing as to why there would be no complication if a whole holding was transferred. If a person holds two or more Khatas of Bhumidhari holdings and one Khata is transferred then it might mean disturbing the proposed or even finalised chaks. The tenure-holder owning these Khatas could have been given one or more Chak in lieu of those Bhumidhari Khatas and if he transfers one Khata then the Chaks proposed or finalised would have to be disturbed and out of them or otherwise a chak would have to be carved out for the transferee. Sri R. C. Srivastava, learned counsel for the petitioner, however, urged before us that no such contingency would arise as under the meaning given to the expression 'holding in the Act the whole land held by a tenure-holder as a Bhumidhar even though recorded in the Khitauni under different Khatas would be one holding and therefore, if one Khata only is transferred it would be a case of a transfer of the part of the holding and not of the whole holding. We find there is force in his contention. The consolidation of Holdings Act contemplates that the whole land held by a person under one tenure -- Bhumidhari or Sirdari --will be comprised in one Bhumidhari holding or in one Sirdari holding, as the case may be. A person may have both one Bhumidhari holding and one sirdari holding but he cannot have two of either.

In the Consolidation of Holdings Act certain words and expressions' have been defined in Section 2 and thpy include the expressions 'tenure-holder' and 'holding'. According to Sub-clause (ii) of the section, 'tenure-holder' means a 'Bhumidhar' or 'Sirdar' of the land concerned and includes an 'Asami'. This expression has not been defined in the U.P. Zamindari Abolition and Land Reforms Act. It has also not been defined in the U.P. Land Revenue Act. No doubt in the U.P. Zamindari Abolition and Land Reforms Act it has been provided that there will be three classes of tenure holders Bhumidhar, Sirdar and Asami and the definition of tenure-holder in the U.P. Consolidation of Holdings Act will therefore appear to be based on the meaning and classification of 'tenure' and 'tenure-holders' in the former Act.

9. The expression 'holding' has been specifically defined in the U.P. Consolidation of Holdings Act. To under stand the implications of this definition, reference may first be made to the definition of holding contained in Clause (7)of Section 3 of the U.P. Tenancy Act, 1939 which definition also holds good for the U.P. Zamindari Abolition and Land Reforms Act by virtue of Clause (26) of Section 3 of that Act. The said definition of holding reads:--

' 'holding' means a parcel or parcels of land held under one lease, engagement or grant, or in the absence of such lease, engagement or grant under one tenure and in the case of a thekadar includes the theka area.'

It will appear that under the above definition if there are several separate leases, engagements or grants then the same person or set of persons can possess several holdings of the same tenure. However 'holding' as defined in Clause (4-C) of Section 3 of the U.P. Consolidation of Holdings Act means 'a parcel or parcels of land held under one tenure by a tenure-holder singly or jointly with other tenure-holders.' This definition has no connection with the source of acquisition of the tenure, and purports to include all land held under one tenure. So all land held as Bhumidhar by a person in the consolidation area will be one holding. So there will be a transfer of a whole holding held under the Bhumidhari tenure only when all land held as Bhumidhar is transferred irrespective of the fact that the said land may have been shown, before consolidation, under more than one Khata numbers.

Accordingly if the whole holding is transferred that will not disturb the progress of the consolidation proceedings. The scheme of U.P. Consolidation of Holdings Act is to treat a person as a Bhumidhar tenure-holder or Sirdar tenure-holder and not to have separate holdings under the same tenure. This is apparent in the instant case from the documents filed in which all plots of land held by the deceased Bashir Mohammad as Bhumidhar are grouped together and corresponding chak or chaks were allotted together in lieu of that land and similarly all plots of land held as sirdar was grouped together for allotting a chak or chaks in lieu thereof as constituting one holding. We are accordingly of the view that it will be only part of a holding under one tenure, if transferred by a tenure-holder during consolidation operations, that would create complications and the object of speedy consolidation would be thwarted, but if the whole holding is transferred that position will not arise. The Legislature must be presumed not to have intended to place more restrictions than were necessary or to have intended to make an invalid provision hit by Article 13 read with Article 19(f) of the Constitution. We are accordingly of the opinion that withthe meaning of 'holding' as clarified above, Sub-clause (ii) of Clause (c) of Sub-section (1) of Section 5 restricts only the transfer of any part only of the holding of a tenure-holder and not the whole holding and in our view the Division Bench case referred to above was correctly decided on the basis of a similar interpretation placed on Sub-clause (ii) of Clause (c) of Sub-section (i) of Section 5 of the Act.

10. In view of the above interpretation of the term 'holding' the land held by the deceased Bashir Mohammad as 'Sirdar' constituted a separate holding from the land held by him as Bhumidhar. So if the alleged oral gift comprised his entire sirdar land as well as Bhumidhari land, it will operate as a gift of the entire Bhumidhari holding even though the gift with regard to sirdari holding may be void under the U.P. Zamindari Abolition and Land Reforms Act and for that reason it cannot be deemed as a gift of a part of the holding so as to require the permission of the Settlement Officer Consolidation under Section 5 (1) (c) (ii) as held by the Deputy Director.

11. In the result we allow the writ petition with costs and quash the order of the Deputy Director of Consolidation and direct him to rehear the revision and decide it after considering the question whether the alleged gift has been proved, taking it to be the law that no permission of the Settlement Officer Consolidation was necessary in the case of transfer of the whole Bhumidhari land held by Bashir Mohammad in the consolidation area.

K. B. Srivastava, J.

12. I have had the advantage of reading the judgment prepared by brother Gursharan Lal, and though I agree to the order proposed in the writ petition, I would wish to add a few words of my own.

13. The facts are as follows:--Village Itara, Pergana Alamnagar, Tahsil Shahabad, in the district of Hardoi, was brought under consolidation operations by means of a notification under Section 4 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act). One Bashir Mohammad, husband of the petitioner Ashrafunnisa, was the tenure-holder of two Bhumidhari Khatas Nos. 12 and 15 and two Sirdari Khatas Nos. 224-A and 461. In lieu of these four Khatas, Chak No. 297 was allotted to him in due course. Before, however, the provisional consolidation scheme could be confirmed, Bashir Mohammad died on November 2, 1965. On his death, the petitioner filed a petition claiming the four Khatas exclusively, on the basis of an allegedoral gift said to have been made by Bashir Mohammad in her favour on October 24, 1965, shortly before his death. Her claim was resisted by Zamir Mohammad, opposite party No. 4, who denied the gift and asserted himself to be the exclusive heir of Bashir Mohammad, as his son. There being no conciliation between the parties, the Assistant Consolidation Officer forwarded the case for disposal to the Consolidation Officer who held that the gift was not proved, that the Sirdari Khatas were not transferable and could not have been transferred, and in any case, that the gift insofar as it concerned the Bhumidhari' Khatas, was void as it was not made with the previously obtained permission in writing of the Settlement Officer, Consolidation, as required by Section 5 (1) (c) (ii) of the Act, and therefore, the petitioner had no title to any of the said four Khatas and he accordingly dismissed her objection on October 25, 1966.

The petitioner filed an appeal before the Settlement Officer, Consolidation, who confirmed the findings of the Consolidation Officer and dismissed the appeal on February 4, 1967. The petitioner then went up in revision to the Deputy Director, Consolidation who while dismissing the revision on March 26, 1968, made the following observations in his judgment:--

'The learned counsel on the other side, however, pointed out that a part of the Chak in dispute is Sirdari land, which could not be transferred and that as such the gift could operate only upon a part of the Chak which is Bhumidhari, and, since the effect of the gift was to transfer a part of the Chak to the applicant, permission of the S. O. C. was necessary in terms of Section 5-C (2) of U.P. C. H. Act. He also argued that there are contradictions in the statements of witnesses with regard to the date of gift and that the oral gift appears to be highly improbable in the face of the circumstance that at the time of alleged oral gift several persons were present who used to do the work of writing documents and were well acquainted with the legal procedure, and the deceased had a few years earlier executed a sale deed in favour of the applicant with regard to certain property for the discharge of dower debt, and there is no reason, why this property also was not given to applicant at that very time. There is considerable force in the arguments of the learned counsel for O. Ps.'

After the above quoted passage, the Deputy Director merely dealt with the validity of the gift but did not decide the question as to whether or not one had actually been made, unless the decision may be taken to be implied by the use of the words 'There is considerable force in the arguments of the learned counsel for the opposite parties.'

14. The petitioner, after the dismissal of her revision, filed the present writ petition on July 8, 1968. The argument advanced at the time of the admission of the writ petition was that the prohibition contained in Section 5 (1) (c) (ii) of the Act applied to the transfer of a part of the holding without previous permission but it did not apply if the transfer was in respect of the whole holding and reliance for this proposition of law was placed upon 1968 All LJ 223. The Division Bench admitted the writ petition but was of opinion that the decision in R. B. Shukla's case, 1968 All LJ 223 required reconsideration by a Full Bench and it is in this manner that this petition is before us.

15. Section 5 of the Act, in so far as it is relevant for the purposes of this petition, reads thus:--

'5 (1) -- Upon the publication of the notification under Sub-section (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 Sub-section (2) of Section 4 relates namely,--

(c) Notwithstanding anything contained in the U.P. Zamindari Abolition and Land Reforms Act, 1950 no tenure-holder, except with the permission in writing of the Settlement Officer, Consolidation, previously obtained shall-

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

(ii) transfer by way of sale, gift or exchange any part of his holding in the consolidation area.' (The portions have been underlined by me.)

16. The debate before us has been with regard to the correct interpretation to be placed upon the use of different phraseology in the two sub-clauses of Clause (c) of the section. The Legislature has thought it fit to use the words 'his holding or any part thereof' in Sub-clause (i), while in Sub-clause (ii), it has used the words 'any part of his holding'. One line of argument is that the Legislature was well aware of the difference in the phraseology used in the two sub-clauses and while in Sub-clause (i) it intended to legislate that the entire holding was affected as also a part thereof, but in the second sub-clause.it intended to cover only a part and not the entire holding; and that being so, what has been prohibited by the Legislature is a transfer of a part and not of the whole of the holding. It was also argued that this Court can only interpret and not legislate and the intention of the Legislature has to be gathered from the language used.

17. Now, under Section 152, U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Zamindari Act) the interest of a Bhumidhar is transferable subject to certain conditions enumerated in Chapter VIII. Under Section 154, a Bhumidhar can make a gift of his Bhumidhari tenure to any person provided such person shall not, as a result of the gift, become entitled to land which, together with land, if any, held by himself or together with his family, exceeds 12 acres. Under Section 153 of the Zamindari Act, the interest of a sirdar is not transferable except under certain circumstances, e. g., as provided by Sections 153 (2), 156, 157 and 161. His right to make a gift is a very limited one under Section 153 (2). Thus while the Zamindari Act confers the right of transfer to a Bhumidhar and a Sirdar in certain contingencies, such right of transfer has been further restricted by Section 5 (1) (c) of the Act, That this is so will be clearly apparent from the opening words 'notwithstanding anything contained' in the Zamindari Act, as occurring in Clause (c). The distinction between Sub-clauses (i) and (ii) is with regard to user or transfer of a holding. The prohibition contained in Sub-clause (i) is with regard to the user, while the prohibition contained in Sub-clause (ii) is with regard to transfer. In respect of user, the ban extends to the entire as also part of the holding as the Legislature has provided that no tenure-holder, except with the permission in writing of the Settlement Officer (Consolidation) previously obtained, shall 'use his holding or any part thereof' except for certain specified purposes. And as against this, in respect of transfer, the Legislature has provided that no tenure-holders, except with the permission in writing of the Settlement Officer (Consolidation), previously obtained, shall transfer by way of sale, gift or exchange 'any part of his holding'. In short, while the ban under Sub-clause (i) extends to the whole and the part, the ban under Sub-clause (ii) extends only to the part and not to the whole. There seems to be a purpose why these two different situations were visualized by the Legislature and different kinds and extent of prohibition were imposed for these two situations.

18. The Statement of Objects and Reasons of the Act reads thus:--

'After the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, there was naturally a pressing demand for the consolidation of holdings in the State. Since the complicated and numerous types of tenures, both proprietary and cultivatory, the greatest stumbling block in the way of successful consolidation of holdings, have been abolished it is an opportune time to start this work. The advantages of having in compact blocks all the land farmed by one family need only be briefly mentioned. Boundary lines should be reduced in 'number and extent, saving land and diminishing boundary disputes, larger fields would be possible and time saved in making trips to the fields. Further, if land were all in one piece barriers, such as fences, hedges or ditches could be erected to obtain privacy and prevent trespassing, thieving and gleening. The control of irrigation and drainage water would be easier; control of pests, insects and disease would also be less difficult.'

19. Referring to the object of the Act, in Attar Singh v. State of U.P., AIR 1959 SC 564, the Supreme Court made the following observations:--

'The object of the Act is to allot a compact area in lieu of scattered plots to tenure-holders so that large scale cultivation may be possible with all its attendant advantages. Thus by the reduction of boundary-lines saving of land takes place and the number of boundary disputes is reduced. There is saving of time in the management of fields inasmuch as the farmer is saved from travelling from field to field, which may be at considerable distances from each other. Proper barriers such as fences, hedges and ditches can be erected around a compact area to prevent trespassing and thieving. It would further be easier to control irrigation and drainage and disputes over water would be reduced considerably where compact areas are allotted to tenure-holders. Lastly, the control of pests, insects and plant-disease is made easier where farmers have compact areas under cultivation. These advantages resulting from consolidation of holdings are intended to encourage the development of agriculture and larger production of food grains, which is the necessity of the day.'

The preamble of the Act reads:--

'An Act to provide for the consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture.

Whereas it is expedient to provide for the consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture.'

20. The Supreme Court held in M. K. Ranganathan v. Govt. of Madras, AIR 1955 SC 604 that:--

'The statement of objects and reasons is certainly not admissible as an aid to the construction of a statute. But it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the evil which he sought to remedy.'

See also Aswini Kumar Ghose v. Arabinda Bose, AIR 1952 SC 369 and K. K. Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080.

21. The preamble of a Statute is a key to the understanding of it. Jagdish Sahai, J. observed in Sobha v. State, AIR 1963 All 29, that a preamble is a key to the interpretation of an Act and can be used to know the aims and objects of the legislation. The Statement of Objects and Reasons can be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated an Act to be passed and the extent and urgency of the evil which it sought to remedy. A perusal of the Statement of Objects and Reasons and the preamble will clearly establish that the intention of the Legislature was to provide for consolidation of agricultural holdings for the development of agriculture. If an agricultural holding is used for purposes not connected with agriculture, development will be retarded and similarly is a farmer is to travel from place to place to look to his scattered fields, again development will be retarded. The prohibition under Sub-clause (i) is for the purpose of promoting development of agriculture and the purpose of the prohibition under Sub-clause (ii) is to avoid fragmentation by sale, gift or exchange. It appears to me that it is because of this that while under Sub-clause (i), the prohibition applies to the entire as well as to the part of a holding; under sub Clause (ii) it extends to a part only, because if the whole holding is transferred, there can be no fragmentation and the only effect will be the substitution of the transferee in place of the transferor. Sub-clauses (i) and (ii) of Clause (c), therefore, were purposely enacted to subserve the purposes of the legislation and to avoid the existing evil.

22. I shall now refer to the second aspect of the matter. Section 3 (4-C) of the Act defines the word 'Holding' and says that it means 'a parcel or parcels of land held under one tenure by a tenure-holder singly or jointly with other tenure-holders.' A holding, therefore, comprises either one parcel or several parcels of land, and (2) suchparcel or parcels of land must be held under one tenure. That being so, a holding may consist of a single plot or several plots but all such plots must be of the same tenure. Section 3 (11) of the Act defines the term 'Tenure-holder' and says that it 'means a Bhumidhar or Sirdar and includes -- (a) an Asami, (b) a Government lessee or Government grantee, or (c) a co-operative farming society satisfying such conditions as may be prescribed.' A tenure-holder will thus be either a Bhumidhar, or Sirdar, or Asami etc. etc. The term 'Tenure' has not been defined by the Act. Section 3 (12) of the Act, however, says that words and expressions not defined in the Act but used or defined in the U.P. Zamindari Abolition and Land Reforms Act 1950, shall have the meaning assigned to them in the Act in which they are used or defined.' The Zamindari Act also does not define the word 'tenure' but has used it at several places. Chapter VIII is headed 'Tenure--Classes of Tenure'. Section 129 of the Zamindari Act deals with 'Classes of tenure'. It says that 'there shall be for the purposes of the Act, the following classes of tenure-holders; that is to say, (1) bhumidhar, (2) sirdar, and (3) asami.' Section 130 deals with a Bhumidhar, Section 131 with a Sirdar, Section 133 with an Asami and Section 133-A with a Government lessee'.

It is obvious, therefore, that while a tenure-holder is a Bhumidhar or Sirdar etc., a tenure is a Bhumidhari or Sirdari etc. etc. Now, under the definition of 'Holding' under the Act, a holding consists of a plot or plots under one tenure and not under several tenures. That being so, there might be several Khatas of Bhumidhari, each Khata comprising a single or several plots, but all these Khatas should be deemed to be under one tenure. If a farmer has Sirdari Khatas as also Bhumidhari Khatas, the Sirdari Khatas will constitute one tenure, while the Bhumidhari Khatas will constitute a second tenure and the two tenures will be separate and not one tenure. In the instant case, the petitioner's contention was that both the Bhumidhari Khatas Nos. 12 and 15 were gifted to her by her husband Bashir Mohammad. The gift, therefore, must be taken to have been in respect of the entire one tenure and the fact that the Sirdari Khatas were also alleged to have been gifted will not mean that a part of the tenure alone was transferred because the Sirdari and Bhumidhari tenures were different tenures and the whole Bhumidhari tenure was transferred, and not merely a part of it. The prohibition contained in Section 5 (1) (c) (ii) of theAct applies to the transfer of a part and not to the transfer of the whole and, therefore, the permission of the Settlement Officer (Consolidation) was not necessary.

23. It now remains to considerthe two cases cited before us. The opposite party Zamir Mohammad placed reliance on 1962 RD (HC) 226 for the proposition that if the prohibition is for the transfer of a part, the law deems that it is for the transfer of the whole also. In that case, there was an agreement between Nathi Singh and Kanchhida for the sale of some plots belonging to Kanchhida. In pursuance of that agreement, the sale was made but without the permission of the Settlement Officer (Consolidation). The decision of the case depended upon the interpretation of the old section 16-A of the Act before it was substituted by the present Section 5. The old section 16-A in so far as it is relevant reads thus:--

'After the publication of the statement under Section 16 and until the issue of a notification under Section 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'. The argument advanced in that case was that Section 16-A prohibited only sale, gift or exchange of one or more plots of a Khata while Kanchhida had transferred the entire Khata and, therefore, there was no necessity for a permission. Srivastava, J., dealing with this argument held as follows:--

'The argument that the section prohibits only the transfer of some of the plots in the Khata and not of the whole Khata is clearly untenable. What the section prohibits is a transfer by way of sale gift or exchange of any plot in the Khata of a holding. This means that one or more of the plots of a Khata cannot be transferred without prior permission. I do not find it possible to accept the contention that though one of more plots of a Khata cannot be transferred the whole Khata can be transferred without such permission.'

24. I am of the view that Nathi Singh's case, 1962 RD (HC) 226 involved the interpretation of the repealed Section 16-A which used somewhat different words, namely, 'any plot or share in any holding'. The decision in that case may not be very helpful when the words usedin the old section may easily comprise the whole share. We are called upon to interpret a wholly different phraseology as used in section 5 and no useful purpose will be served by taking into consideration the decision in Nathi Singh's case, 1962 RD (HC) 226. The utmost that can be said is that it laid down the broad proposition that where there is a prohibition on the transfer of a part, it may apply to the transfer of the whole. However, whether or not the broad proposition would actually apply will depend upon the language used in a given Statute. In section 5 (1) (c) (i) and (ii) the language used is different and the intention must be gathered from the language used. In that view of the matter, I think that effect must be given to the words used notwithstanding the broad proposition which may or may not be of universal application. I have observed earlier that the user of the different phraseology in the two sub-clauses subserves the purpose of the legislation.

On the other hand, the learned counsel for the petitioner placed reliance upon 1968 All LJ 223. In that case, one Chak was allotted to one Jagat Narain Singh and he executed a sale deed in respect of the entire Chak to one Munna Lal Shukla. Later, Jagat Narain Singh executed another sale deed for the same property in favour of one Ram Behari Shukla. Munna Lal Shukla applied for mutation but this was dismissed by the Consolidation Officer, Munna Lal appealed but the appeal was dismissed. He then filed a revision which was also dismissed by the Director of Consolidation. He then instituted a writ petition on the ground that since Jagat Narain Singh had sold the entire Chak and not a part to him; therefore, the consolidation authorities had wrongly decided that the sale in his favour was void for want of previous permission. Sahgal, J. held that this contention was correct and no permission was necessary. Then Ram Behari Shukla filed special appeal which was decided by Oak, C.J. and U.S. Srivastava, J. The Division Bench took into consideration the different phraseology used in the two sub-clauses and the purpose behind the legislation and held that Sub-clause (ii) does not prohibit sale of the entire holding. I am in respectful agreement with this decision.

25. The result is that I agree with the order proposed by my brothers Gur Sharan Lal and Jagmohan Lal.


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