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

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 included in schemes of consolidation in those several village 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 legality 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 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 aside 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 of Officer Consolidation, sought a certificate from the High Court 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 is how the appeal is beforeThere 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 has 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 1 and 2 i.e., the sons have got parcels 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 far consolidation were in progress. While so, two applications were made to the Settlement Officer for permission to exchange the lands in such a way as to make the sons (respondents 1 and 2) the sole tenure holders in 3 villages, and the father (the third respondent) the sole tenure-holder in 6 villages and petitioner 4 to be the sole tenure-holder 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 turns on this. It is the legality and propriety, of the reasons given for the rejection of the applications by the Settlement Officer that fours the subject of debate between the parties.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 application 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 : (1) Garhar Buzurg, (2) Mahmauni, (3) Bibipur, (4) Bhitari, (5) Tahabarpur, (6) Taraudhi, (7) Shambhupur, (8) Shrikantpur, (9) Lachabara, (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 frests principles were directed to be formulated under S. 16 and this was being done.9. 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 is necessary to refer and this was that in the villages of Shrinkantpur, Shambhupar and Lachahara the properties sought to be exchanged were in adjacent chaks.10. 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 statedthis Section (16-A (2)) it is to be considered as to whether the exchange is likely to defeat the scheme of consolidation orthen pointed out that from his file and the inquiry which he conducted it was disclosed that the statement of principles under S. 16 had been published in 7 villages, while in respect of 5, besides the principles, a statement of proposals had also been published under S. 20 of the Act. Nothing was mentioned in it about the other 4 villages in regard to which also application for exchange had been made. He premised the discussion of the reasons for rejecting the applications by referring to the report of the Consolidation Officer which he had called for on receipt of the two applications thusconsolidation officer reported that chak formation was in hand in these villages."By "these villages" he apparently meant the 5 villages of Shambhupur, Nawada, Garhan Khurda, Lachahara and Shrikantpur in which not merely the principles but "the proposals" also had been published under S. 20 and he continuedentirely agree with him that the exchange of land, which is of considerably big area shall disturb either the concluding phase of chak formation or the proposed chaks already formed. If the exchange is permitted the provisions of S. 15 (c) and (b) of the Act shall necessitate the review of the chaks of these tenure-holders and obviously such a review shall dislocate and disturb other chakholdershe concluded by sayingthe exchange prayed for, the parties, who are big tenure-holders would become bigger still and the obvious increase of land in their favour shall adversely affect the interest of other small tenure-holders and would cause undesired disturbance and dislocation to them. Moreover, as the parties are father, mother and sons, as far as possible they would be deriving benefits of S. 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 and came to the conclusion that the two main 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 of the Consolidation Department in the matter of readjusting the chaks of others, and (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 out that neither of these considerations would be legitimate or pertinent grounds on which an application for exchange made under S. 16-A (1) could be rejected and so the writ petition was granted.12. If the terms of S. 16-A (2) were borne in mind it is clear that where an application fell within the terms of S. 16-A(1) i.e. where. it was filed at the stage referred to in it, the Settlement Officer is enjoined to allow the application unless the conditions laid down in the last portion of sub-s. (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 points urged by the respondents before the High Court was as regards the meaning of these words "the scheme ofcontention 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 or consolidation" was meant not some method of effecting consolidation as popularly 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.

Reasoning: 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.