PADMALABHA SWAIN Vs. PRASANNA KUMAR RAUT

JUDGEMENT

(1.) IN a revision before the Commissioner of Consolidation (Consolidation Revision No. 187/81) where Padmalabha, the original petitioner was figuring as opp. party No. 6, a memo was filed on his behalf by his advocate on the death of the opp. party No. 6 therein, one Susila Swain that no substitution in her place was necessary as Padmalabha was her only legal heir. While the matter was pending consideration the present Opp. party Nos. 1 to 4 filed a petition under Order 22, Rule 10, Cods of Civil Procedure before the Commissioner to implead them as parties in place of Sushila alleging that they had purchased the disputed property by two registered sale deeds executed on 14 -7 -1982 by Susila. Objections to such petition were filed by both Padmalabha as also the opp. party No. 11 here who was the revision petitioner before the Commissioner. In the objections the stand was taken that since the purchases by the opp. party Nos. 1 to 4 were after the publication of notification under Section 13(1) of the Consolidation of Holdings and Prevention of Fragmentation of Land Act (hereinafter referred to aa 'the Act'), such transactions were void and hence they were not entitled to be impleaded as parties to the revision. The Commissioner overruled the objections holding the view that the provisions of Section 4(2) as also Sections 34 and 35 of the Act did not prohibit the transfer by way of sale or otherwise of the entire interest of a person though transfer of fragments thereof is prohibited and that hence the sales by Susila to opp. party Nos. 1 to 4 were not hit by the provisions of Section 4(2) as Susila had transferred her entire interest. For the purpose, the learned Commissioner relied upon a Full Bench decision in AIR 1971 Allahabad 87 (Smt. Asharfunisa Begum v. Deputy Director of Consolidation, Camp at Hardoi and Ors.). Aggrieved by such decision Padmalabha came before this Court during pendency of which case he having died, the present petitioners have been substituted in his place.

(2.) SECTION 4(2) of the Act mandatorily prohibits the transfer of any agricultural land by way of sale, gift, mortgage or exchange after publication of the notification under Section 13(1) of the Act unless it has been done with the written previous permission of the Consolidation Officer and further directs that no document purporting to effect such transfer shall be registered by the registering authority unless it is accompanied by the certified copy of the written permission. There can be hardly any dispute that the provision is in a mandatory cast and compels rigorous performance. Any transaction effected in contra -vention of that provision would be automatically void as is enjoined under Section 23 of the Contract Act.

(3.) MR . Dey however contends that the bar under Section 4(2) of the Act did not apply to the case at hand inasmuch as neither the notification under Section 13(1) had been published by the date of the sales nor the lands are agricultural lands but are homestead ones.