Smt. Jal Devi vs State Of U.P. And Others
2012 Latest Caselaw 4766 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 6
 
Case :- WRIT - C No. - 51441 of 2012
 
Petitioner :- Smt. Jal Devi
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- B.L. Yadav
 
Respondent Counsel :- C.S.C.,D.D. Chauhan
 

 
Hon'ble Sanjay Misra,J.

Heard Sri B.L. Yadav, learned counsel for the petitioner, learned Standing Counsel for the Respondents No.1, 2, 3 & 4 and Sri D.D. Chauhan for the Respondent No.7, Gaon Sabha.

Notice need not be issued to the Respondents No.5 & 6 in view of the order being passed herein.

This writ petition has been filed assailing the order dated 31.08.2012 passed by the Additional Collector (Administration) Etah, in Case No.7 of 2012 under Section 166/167 of the U.P.Z.A. & L.R. Act. According to learned counsel for the petitioner, the petitioner is the purchaser of the land in question from the Respondent No.5, Munna Lal and under the impugned order which has been based on a complaint of a third person it has been held that there was violation of Section 157-A of the Act and as such in view of Section 166/167 of the Act the land would vest in the State Government and the Tehsildar has been directed to obtain possession. According to learned counsel, the impugned order is without jurisdiction inasmuch as if the petitioner was to be evicted from the land in question proceedings as contemplated under Section 331 of the Act read with Schedule II thereunder ought to have been initiated by the Gaon Sabha and in absence of any such proceedings the petitioner could not be dispossessed from the land in question.

Having considered the submission of learned counsel for the petitioner and perused the record, the provision of Section 166 of the Act have been invoked in the present case when the land has been transferred by a person falling within category of Section 157(A) of the Act. The consequences as provided under Section 166 are by operation of law and such consequences are that such a transfer in contravention of Section 157-A of the Act shall be void. Such a transfer would be void by operation of law. Section 167 of the Act provides for consequences that shall ensue in respect of a transfer which is void under Section 166 of the Act. Sub Section 2 of Section 167 of the Act clearly provides that when the land has been vested in the State Government under that provision it shall be lawful for the Collector to take over possession of such land and direct such person occupying the land to be evicted therefrom and for the purpose of taking over possession or evicting such an occupant the Collector may use or cause to be used such force as may be necessary.

Schedule II of the Act relates to the proceedings under Section 331 of the Act and the description of proceedings, the Court of original jurisdiction the Court of First Appeal and the Court of Second Appeal have been described thereunder.

According to learned counsel, Item No.15 is relevant for the present case. Item No.15 of Schedule II relates to Section 166 read with Section 201 and Section 202(a) of the Act, wherein it provides that a suit for ejectment of a transferee from a bhumidhar with non-transferable rights or of an assami, shall lie before the Assistant Collector (Ist Class). It is on the basis of the aforesaid provision in the schedule that learned counsel states that the order impugned passed by the Additional Collector (Administration) Etah is without jurisdiction. The above submission of learned counsel for the petitioner is quite misconceived. Item No.15 of Schedule II of the Act relates to ejectment of a transferee of a bhumidhar with non-transferable rights or of an assami. Clearly, in the present case the petitioner pleads to have purchased the property from the Respondent No.5, who was competent to transfer such property and he was not a bhumidhar with non-transferable rights. As such the submission of learned counsel for the petitioner while referring the Item No.15 of Schedule II is self-contradictory. In case, his argument that his vendor did not have any transferable rights so as to attract Item No.15 of Schedule II then the sale deed itself would be bad. But the sale deed has been obtained from the respondent no.5, who according to learned counsel for the petitioner had transferable rights and in that event Item No.15 Schedule II clearly does not apply. As such the proceedings under Section 166/167 of the U.P.Z.A. & L.R. Act were not maintainable before the Assistant Collector (Ist Class) as provided under the Item No.15 Schedule II.

The law is settled that Additional Collector can perform the duties of the Collector if so authorized hence the submission of learned counsel for the petitioner that the impugned order is without jurisdiction has no merit and is rejected.

Insofar as the finding recorded in the impugned order relating to violation of the provisions of Section 157-A of the Act are concerned, there is no doubt that sale made in favour of the petitioner was without complying with the mandatory provisions of Section 157-A of the Act. Under such circumstances, clearly the provisions of Section 166 of the Act were attracted and such a transfer became void by operation of law. The consequences as provided under Section 167 of the Act then followed and the impugned order dated 31.08.2012 has been passed by the Additional Collector, wherein he has directed for expunction of the name of the petitioner from the revenue records and the vesting of the land in the State Government under Section 166/167 of the Act. He has directed for initiating proceedings for dispossession of the petitioner in accordance with law. Clearly, eviction has been ordered in the impugned order and the Tehsildar has been directed to get the revenue records corrected and initiate proceedings for taking possession and eviction of the petitioner. Such jurisdiction is clearly available under Section 167(2) of the Act and, therefore, it cannot be held that the impugned order to the above extent is in any manner illegal.

Learned counsel for the petitioner has placed reliance on a decision of the Division Bench of this Court in the case of 'Indrapal and another Vs. Up Ziladhikari (Sub-Divisional Officer) Chhibramau, District Farrukhabad, reported in 2002(93) RD 761 and placed reliance on paragraph 15 therein. Paragraph 15 of the judgment is quoted below:-

"That the impugned order appears to have been passed on the basis of alleged applications made by some tenure holders, names not disclosed without any proceedings under Section 201 or Section 202A read with Section 167 of U.P. Zamindari Abolition and Land Reforms Act, though the Case No. is mentioned as 01 of 1997 under Section 167 of U.P.Z.A. & L.R. Act. Section 167 itself is not any proceedings as mentioned in Schedule II of Section 331 of U.P.Z.A. & L.R. Act, rather Section 167 of U.P.Z.A. & L.R. Act simply provides the consequences that ensue in respect of any property by virtue of Section 166 of U.P. Zamindari Abolition and Land Reforms Act. That proceedings itself is not a suit".

Clearly, the Court held that Section 167 of the Act is not any proceedings mentioned in Schedule II of Section 331 of the U.P.Z.A. & L.R. Act. The Division Bench has clearly held that rather Section 167 of the Act provides for consequences that ensue in respect of any property by virtue of Section 166 of the Act. Law as provided in Section 166 and 167 of the Act has been clearly laid down by the Division Bench in the above referred case. The proceedings contemplated under Schedule II of Section 331 of the Act and the Item No.15 therein have no relevance to a transfer made where the transferee was admittedly not a bhumidhar with non-transferable rights.

The writ petition has no merit. It is, accordingly, dismissed.

No order is passed as to costs.

Order Date :- 4.10.2012

pawan