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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).5883 OF 2013

SURAJ PAL (D) THR. LR.  ... Appellant(s)

Versus

RAM MANORATH & ORS. ... Respondent(s)

J U D G M E N T

Deepak Gupta, J.

1. The appellant is aggrieved by the order passed by a learned

Single Judge of the High Court of Allahabad in Civil Misc. Review

Application  No.247459 of  2006 in  Second  Appeal  No.  1540 of

1982.   

2.     The main issue which arises for consideration is whether

permission of the Settlement Officer (Consolidation) was required

to be obtained in terms of Section 5(c)(ii) of the U.P. Consolidation

of Holdings Act (for short ‘the Act’) before sale of the plot No. 386

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(re-numbered as plot No. 348) in consolidation proceedings and

hereinafter referred to as the suit property.   

3.       The admitted facts are that  the suit property was land

used as ‘Abadi’ and was declared ‘Chakout’  (meaning out of the

consolidation  scheme)  after  the  preliminary  survey  was

conducted.  Four brothers were co-tenure holders of the land in

dispute.  One brother executed a sale deed of his 1/4th share in

favour of respondents-defendants.  The remaining three brothers

filed  a  suit  for  permanent  injunction  against  the

respondents-defendants  alleging  that  the  sale  is  void  since  no

permission of the Settlement Officer (Consolidation) as envisaged

under Section 5(c)(ii) was obtained.  They also claimed that they

are  in  possession  of  the  suit  property  and  the

respondents-defendants are  trying to make construction on the

land and had illegally constructed a ‘kothari’ on the suit property.

The respondents-defendants claimed they were in possession but

denied that  they had raised any structure and submitted that

since the land was not subject to the consolidation scheme, no

permission  of  the  Settlement  Officer  (Consolidation)  was

necessary.  The suit was dismissed by the trial court mainly on

the  ground  that  no  permission  of  the  Settlement  Officer

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(Consolidation)  was  required  since  the  land  was  outside  the

consolidation scheme.  The plaintiffs filed an appeal.  The first

appellate court allowed the appeal holding that Section 5(c)(ii) of

the Act was applicable and since no permission in terms thereof

had  been  obtained,  the  sale  deed  was  void  and  ineffective.

Thereafter,  the  defendants  filed  second  appeal  which  was

dismissed.   

4. Thereafter, review petition was filed mainly on the ground

that  since  the  land  in  dispute  did  not  form  part  of  the

consolidation scheme, permission under Section 5(c)(ii) of the Act

was not required.  The learned Single Judge elaborately discussed

the objects, reasons, scheme and the provisions of the Act and

came to the conclusion that no permission was required to sell

the  land  in  question.    The  review  petition  and  appeal  were

allowed by the impugned order.

5. The  appellants  challenge  the  impugned  judgment  on  two

grounds. Firstly, that the learned Single Judge has reopened the

matter and gone beyond the scope of review and secondly that

though  the  land  may  not  be  allotted  under  the  consolidation

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scheme, it still is the part of the holding and would be covered by

Section 5 of the Act.   

6. As far as the scope of review is concerned, if a court finds

that it has committed an error which is apparent on the face of

the record and that error is pointed out to it in a review petition,

there  is  nothing  which  prevents  the  court  from correcting  the

error.   In  the  judgment  initially  passed  by  the  learned  Single

Judge, the court did not take into consideration the arguments

raised that this portion of land was ‘chakout’ and therefore, was

not  part  of  the  consolidation  scheme.   Therefore,  the  learned

Single Judge was justified in reconsidering the matter.   

7.       As far as the merits of the case are concerned, we may refer

to the provisions of Section 5 (c) of the Act, which read as follows:

“5(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

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(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 sub-section (2) of Section 4.”  

8. The  purpose  of  a  consolidation  scheme  is  to  provide

consolidation of agricultural holdings.  Abadi land, groves etc. are

kept outside the scope of consolidation scheme.  They cannot be

re-allocated or re-allotted to any other person.  Therefore, strictly

speaking,  they  are  not  subject  matter  of  the  consolidation

scheme. The intention of introducing Section 5(c)(ii) of the Act was

that if  the land holding is subject to consolidation proceedings

then  permission  of  the  Settlement  Officer  (Consolidation)  is

required before the same is transferred.  This is so because if the

land, which is subject matter of consolidation proceedings, is sold

or permitted to be transferred during consolidation proceedings, it

could affect the entire consolidation scheme.  However, if the land

is not subject matter of the consolidation scheme, though it may

be part of the holding of the tenure holder, then no permission is

required.   Admittedly,  the  suit  property  was  “Chakout”  and

outside the purview of the consolidation scheme inasmuch as its

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value  could  not  be  taken into  consideration while  framing the

scheme and it  could  not  be  allocated  or  allotted  to  any other

person.

9. In view of  the  above  discussion,  we  find no  merit  in  the

appeal and the same is dismissed.  

10. Status  quo,  granted  vide  order  dated  07.09.2007  and

continued  vide  order  dated  19.07.2013,  stands  vacated.

Pending application(s), if any, stand(s) disposed of.

....................................J. (MADAN B. LOKUR)

....................................J. (DEEPAK GUPTA)

New Delhi August 11, 2017