SARASWATI DEVI Vs. DEPUTY DIRECTOR OF CONSOLIDATION AZAMGARH

JUDGEMENT

(1.) B. Dikshit, J. This writ petition arises out of proceeding under Section 12 of the U. P. Consolidation of Holdings Act (in short Act') for mutating the name of Smt. Saraswati.

(2.) THE facts relevant for the purpose of present controversy are that petitioner Smt. araswati Devi applied for mutation on the basis of a sale deed dated 22-3-1979 ex ecuted by Chhotey Lal in respect of 1/4 share in plot Nos. 8437-275, 844/-272, 945/890, 846/-570, 853/-112, 952/-174 total area 2. 293 acres. THEre is no dispute be tween parties that Chhotey Lal by said sale deed transferred whole of his share in said holding. An objection was filed by opposite party Akchhaibar, who is a co-tenure holder with Chhoteylal, that the transfer is bad in law and sale deed cannot be given effect as no prior permission of Settlement Officer Consolidation required to be taken under Section 5 (1) (c) (ii) of the Act was obtained by transferor before executing the sale deed. THE Consolidation Officer, after hearing the parties, rejected the mutation applica tion holding that the sale deed is bad in absence of prior permission of Settlement Officer Consolidation. THE petitioner preferred an appeal against the order passed by Consolidation Officer. THE Assistant Settlement Officer, Consolidation Azam-garh by order dated 16-7-1984 allowed the appeal and directed mutation in favour of petitioner. He held that Chhotey Lal trans ferred his whole share in the Khata in dis pute for which no prior permission was necessary. THE contesting opposite parties preferred revision. THE Deputy Director of Consolidation by order dated 17-8-1987 reversed the finding recorded by Assistant Settlement Officer Consolidation. He held that prior permission of Settlement Officer Consolidation was necessary before execut ing the sale deed. He allowed the revision and restored the order of Consolidation Of ficer. Aggrieved, the petitioner has come up before this Court in writ petition.

(3.) THE learned counsel for contesting opposite parties opposed the petition and contended that the sale is void ab initio as it violates Section 5 (1) (c) (ii) of the Act. He also argued that the omission of said section by Section 5 of Uttar Pradesh Land Laws (Amendment) Act, 1974 does not give it retrospective operation and relying on the case of Coates v. Diment 1951 (1) All. E. R. 890 argued that the contracts which were void from inception under repealed section are not to be accepted valid when statutory provision declaring such transaction as void are repealed. He relied upon following por tion of judgment of Coates case (supra) to substantiate his argument: "i do not consider that Section 33 (3) of the Act of 1947 means more than that Section 50 of the Act of 1923 is to cease to have effect with respect to any future contracts. In future the tenant's rights are to be governed by Section 33 (1) and (2) notwithstanding any agreement to the contrary, but no contrary intention is indicated with regard to earlier contracts which have already been rendered void by repealed section, and I am unable to accept that a clause in an agreement long ago rendered void at the moment of its incep tion springs into life when the statutory provision declaring it void is itself repealed. By virtue of Section 50 of the Act of 1923 declaring Cl. 1 void in part, the tenant had long ago acquired a right or privilege from being ejected without notice from the whole or part of his holding under clause 1, and, in my opinion Section 38 (2) of the Inter pretation Act, 1889, preserved that right or privilege notwithstanding the repeal of Section 50 of the Act of 1923. "