Case: Deputy Director Of Consolidation,Azamgarh Vs. Deen Bandhu Rai

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 to grant permission,"18. 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 they 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).19. 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" of consolidation under S. 14 and of "the proposals" under S. 19, is that the Act specifically provides for objections being 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 the principles or the proposals under S. 16(2) or S. 20(2) respectively based upon their claim to exchange. If such objections have been filed, they would be dealt with in the manner prescribed and the decision on the objections and on the application for sanction would be founded on the same grounds. If however, no such objections were filed the question which would have to be considered by the Settlement Officer in dealing with the application under S. 16-A(1) would be whether the proposed transfer, if permitted, would affect substantially and in a concrete manner any of the "principles" which had become final under S. 18 or the "proposals which were confirmed under S. 23.The conflict to justify, a rejection under S. 16-A(2) must exist between "a principle" as formulated or a concrete "proposal" as confirmed, on the one hand and the transfer prayed for. If there should be such a conflict the officer would be entitled to refuse the permission but otherwise the applicant would be entitled to the grant of the permission sought. We need hardly add that it is for the officer to decide whether these conflicts exist and to pass a speaking order setting out the grounds for holding that such conflicts exist and the jurisdiction of the Court would be attracted only 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 learned Judges also.20. Before concluding there is one matter to which we have already adverted and that relates to an assertion by the respondents in their petition to the High Court that the lands, transfer of which was sought, were contiguously situated in three of the villages concerned in the applications. We have further noticed that this statement was admitted by the appellant in his counter-affidavit. 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 attention 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.21. 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 August 31, 1962 granting permission under S. 16-A (1). But it is clear from a perusal of the said under 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 dependant 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 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.22.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]2. 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 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 Settlement Officer under Art.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 contiguity 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 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 settwo matters to be noticed in respect of both "the principles" of consolidation under S. 14 and of "the proposals" under S. 19, is that the Act specifically provides for objections being 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 the principles or the proposals under S. 16(2) or S. 20(2) respectively based upon their claim to exchange. If such objections have been filed, they would be dealt with in the manner prescribed and the decision on the objections and on the application for sanction would be founded on the same grounds. If however, no such objections were filed the question which would have to be considered by the Settlement Officer in dealing with the application under S. 16-A(1) would be whether the proposed transfer, if permitted, would affect substantially and in a concrete manner any of the "principles" which had become final under S. 18 or the "proposals which were confirmed under S. 23.The conflict to justify, a rejection under S. 16-A(2) must exist between "a principle" as formulated or a concrete "proposal" as confirmed, on the one hand and the transfer prayed for. If there should be such a conflict the officer would be entitled to refuse the permission but otherwise the applicant would be entitled to the grant of the permission sought. We need hardly add that it is for the officer to decide whether these conflicts exist and to pass a speaking order setting out the grounds for holding that such conflicts exist and the jurisdiction of the Court would be attracted only 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 learned Judgesview 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 August 31, 1962 granting permission under S. 16-A (1). But it is clear from a perusal of the said under 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 dependant 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 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.