Allahabad High Court
Duli Chand vs State Of U.P. And Others on 12 August, 2011
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 6
Case :- WRIT - C No. - 45851 of 2011
Petitioner :- Duli Chand
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Ram Swaroop Singh,Shiva Kant Singh
Respondent Counsel :- C.S.C.,Anuj Kumar
Hon'ble Amreshwar Pratap Sahi,J.
Heard learned counsel for the petitioner, learned Standing Counsel for Respondent Nos. 1 to 3 and learned counsel for the Gaon Sabha.
This petition arises out of a transaction of sale, which has been annulled by the competent authority invoking the provisions of Section 157-AA read with Sections 166 & 167 of the U.P. Zamindari Abolition & Land Reforms Act.
The petitioner admittedly is a Schedule Caste and he claims that respondent No.5, who was also a Schedule Caste, had executed a sale-deed in favour of the petitioner in respect of the land in dispute on 13.1.2004. The provisions of Section 157-AA place restrictions on transfer by Member of a Schedule Caste and Sub-section (4) clearly provides that no transfer under this section shall be made except with the previous approval from the Assistant Collector concerned. A transfer in violation of the provisions of the Act is treated to be void under Section 166 of the Act and the consequences follow under Section 167. A perusal of the said provisions, therefore, leaves no room for doubt that previous approval of the Assistant Collector is a sine-qua-non.
In the instant case, it is the admitted case of the petitioner that no previous approval had been sought and that an application was moved afterwards on 1.4.2004 seeking permission. Learned counsel for the petitioner submits that the Assistant Collector did not have the power to pass the impugned order as he is not enjoined with the duty of any such exercise, particularly under Section 167 which requires that the Collector shall take appropriate action. The second submission is that post facto approval is also contemplated, and the petitioner has subsequently applied for the same, hence the transaction cannot be treated to be void. For this proposition, he relies on two decisions. One Division Bench decision of the Uttarakhand High Court in the case of Smt. Ramwati Vs. Chandra Gopal and others, 2011 (113) RD 526 and the other decision of a learned single Judge of this Court in the case of Chandra Prakash Singh Vs. IVth Addl. District Judge, Mirzapur, and others, 2011 (113) RD 711. Learned counsel, therefore, submits that the courts below have erred in proceeding on an erroneous assumption of law to non-suit the petitioner hence the orders deserve to be set aside.
Having considered the aforesaid submission, the words previous approval employed in sub-section (4) at the best can be construed in favour of the vendor if an application is filed prior to the transaction of sale. The grant of approval or disapproval after the execution of the sale-deed could be subject matter of consideration as indicated in the judgment relied upon by the learned counsel for the petitioner but not in the present case where no such application had been filed at all before the transaction took place.
The power to grant permission vests in the Assistant Collector under Sub-section (4) and it is trite law that power to do also includes the power to undo. The Assistant Collector was, therefore, well within his jurisdiction to pass the order. The first contention is, therefore, rejected.
The second submission on the strength of the aforesaid two decisions also cannot be countenanced for the simple reason that in the division bench decision relied on by the learned counsel for the petitioner, the application had already been filed before the Collector seeking permission under Section 157-AA as required under sub-section (4) thereof. In the case decided by the learned single Judge, the application had been moved before the court concerned as it was a court sale and, therefore, in both the transactions involved in the said 2 decisions, the applications had already been moved prior to the transaction of sale.
In the instant case, the petitioner or the respondent - vendor did not move any application prior to the transaction and as a matter of fact the application was moved almost after 4 months of the execution of the sale-deed. The aforesaid 2 decisions, therefore, are clearly distinguishable on facts and the ratio thereof will not apply on the facts of the present case.
Accordingly there is no merit in the writ petition. It is dismissed.
Order Date :- 12.8.2011
Irshad
