Prem Chandra vs Additional Commissioner ...
2015 Latest Caselaw 1916 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 5
 

 
Case :- MISC. SINGLE No. - 4857 of 2015
 
Petitioner :- Prem Chandra
 
Respondent :- Additional Commissioner (Administration)Lucknow Mandal & Ors
 
Counsel for Petitioner :- H.N. Tiwari,Avinash Tripathi
 
Counsel for Respondent :- C.S.C.,Yogendra Nath Yadav
 

 
Hon'ble Ritu Raj Awasthi,J.

Notice on behalf of respondents no. 1 to 3 has been accepted by the learned Chief Standing Counsel. Mr. Yogendra Nath Yadav, Advocate has accepted notice on behalf of respondent no. 4.

Heard learned counsel for the parties.

This writ petition has been filed challenging the order dated 22.5.2014 passed in the proceedings under Section 166/167 U.P.Z.A.&L.R. Act as well as the orders 27.2.2015 and 24.7.2015 passed in revision preferred against the said order and the review of the revisional order.

Learned counsel for petitioner submits that the petitioner had purchased a land registered at Khata No. 640tha by way of registered sale-deed dated 10.11.1998 from one Bhusey son of Bhagwant. The seller and purchaser both belonged to Scheduled Caste category. The name of petitioner was mutated on the basis of the said sale-deed in the revenue records khatauni. The petitioner in the year 2011 had moved an application under Section 143 U.P.Z.A.&L.R. Act for change of use of land. Vide order dated 15.6.2011 the land in question was declared as non-agricultural land. It is submitted that on a complaint made by a third party the proceedings under Section 166/167 U.P.Z.A.&L.R. Act was initiated and on the basis of report submitted by the Tehsildar concerned the order impugned dated 22.5.2014 was passed. Thereafter, the petitioner had preferred Revision No. 20141000001377 which was rejected vide order dated 27.2.2015. The petitioner thereafter had filed review petition which was rejected vide order dated 24.7.2015. It is contended that once the land was declared as non-agricultural land under Section 143 U.P.Z.A&L.R. Act, the proceedings under Section 166/167 U.P.Z.A.&L.R. Act could not have been initiated. Under Section 143 (2) U.P.Z.A.&L.R. Act, after the declaration under Section 143, the provisions of U.P. Zamindari Abolition and Land Reforms Act cease to apply to the Bhumidhar with transferable rights and he shall thereupon be governed in the matter of devolution of land by personal law to which he is subjected.

It is also contended that the respondent no. 2, Assistant Collector, Mohanlalganj has committed error while declaring the land in question as agricultural land in the proceedings under Section 166/167 U.P.Z.A.&L.R. Act.

Contention is that no separate proceedings under Section 144 U.P.Z.A&L.R. Act were held and the power under Section 166/167 U.P.Z.A.&L.R. Act cannot be clubbed with the power vested under Section 144 U.P.Z.A.&L.R. Act.

Learned counsel for petitioner also contended that the petitioner is in possession over the land in question as such he is entitle to get the benefit of Section 122-B (4F) U.P.Z.A.&L.R. Act.

Learned standing counsels, on the other hand, submits that in view of Section 157-AA U.P.Z.A.&L.R. Act, there is restriction of transfer of land in question. The land belonging to a Scheduled Caste, which is allotted to him under Section 131-B U.P.Z.A.&L.R. Act, cannot be transferred by way of sale-deed to any other person without permission from the Assistant Collector. The entire transaction of the alleged sale-deed, on the basis of which the petitioner had acquired the right over the land in question, was void.

It is further submitted that since the said transaction was itself void as such the application, if any, or the proceedings held pursuant to the said application under Section 143 U.P.Z.A&L.R. Act were itself bad and not maintainable.

I have considered the submissions made by the learned counsel for the parties and gone through the records.

It is the admitted case of the petitioner, as has been submitted by learned counsel for the petitioner before the Court, that the land in question belongs to a Schedule Caste which was allotted to him in exercise of powers under Section 131-B U.P.Z.A.&L.R. Act. The petitioner on the basis of the alleged registered sale-deed dated 10.11.1998 had acquired the land in question from Bhusey son of Bhagwant.

It is also admitted position that before execution of the said sale-deed no permission from the competent authority i.e., Assistant Collector, Mohanlalganj, Lucknow was obtained.

Section 157-AA U.P.Z.A.&L.R. Act specifically provides that no person belonging to Schedule Caste having become bhumidhar with transferable rights under Section 131-B U.P.Z.A.&L.R. Act shall have the right to transfer the land by way of sale, gift, mortgage or lease to person other than a person belonging to Scheduled Caste and such transfer, if any, shall be in the following order of preference:

(a) land less agricultural labourer;

(b) marginal farmer;

(c) small farmer; and

(d) a person other than a person referred to in Clauses (a), (b) and (c).

Section 157-AA U.P.Z.A.&L.R. Act on reproduction reads as under:

"157-AA. Restrictions on transfer by member of Scheduled Castes becoming Bhumidhar under Section 131-B.- (1) Notwithstanding anything contained in Section 157-A and without prejudice to the restrictions contained in Sections 153 to 157, no person belonging to Schedule Caste having become bhumadhar with transferable rights under Section 131-B U.P.Z.A.&L.R. Act shall have the right to transfer the land by way of sale, gift, mortgage or lease to person other than a person belonging to Scheduled Caste and such transfer, if any, shall be in the following order of preference:

(a) land less agricultural labourer;

(b) marginal farmer;

(c) small farmer; and

(d) a person other than a person referred to in Clauses (a), (b) and (c).

(2) A transfer in favour of a person referred to in Clause (a) of sub-section (1) shall be made in order of preference given below. If a person referred to in Clause (a) is not available then transfer may be made to a person referred to a person referred to in Clause (b) of the said sub-section and if a person referred to in Clause (b) is also not available then to a person referred to in Clause (c) of the said sub-section if a person referred to in Clause (c) is also not available then to a person referred to in Clause (d) of the said sub-section in the same order of preference:-

(a) first, to the resident of the village where the land is situate;

(b) secondly, if no person referred to in Clause (a) is available, to the resident of any other village within the Panchayat area comprising the village where the land is situate;

(c) thirdly, if no person referred to in Clauses (a) and (b) is available, to the resident of a village adjoining the Panchayat area comprising the village where the land is situate. 

(3) If no person referred to in sub-section (1) belonging to a Scheduled Caste is available, the land may be transferred to a person belong to a Scheduled Tribe in the order of preference given in sub-sections (1) and (2).

(4) No transfer under this sections shall be made except with the previous approval of the Assistant Collector concerned.

(5) A transferee of land under sub-section (1) shall have no right to transfer the land by way of sale, gift, mortgage or lease before the expiry of a period of ten years from the date of transfer in his favour."

Section 131-B U.P.Z.A.&L.R. Act on reproduction reads as under:

"131-B. Bhumidhar with non-transferable rights to become bhumidhar with transferable rights after ten years.- (1) Every person who was a bhumidhar with non-transferable rights immediately before the commencement of the Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1995 and had been such bhumidhar for a period of ten years or more, shall become a bhumidhar with transferable rights on such commencement.

(2) Every person who is bhumidhar with non-transferable rights on the commencement referred to in sub-section (1) or becomes a bhumidhar with non-transferable rights after such commencement, shall become bhumidhar with transferable rights on the expiry of period of ten years from his becoming a bhumidhar with non-transferable rights.

(3) Notwithstanding anything contained in any other provision of this Act, if a person, after becoming a bhumidhar with transferable rights under sub-section (1) or sub-section (2). Transfers the land by way of sale, he shall become ineligible for a lease of any land vested in Gaon Sabha or the State Government or of surplus land as defined in the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960."

In the present case, the restriction imposed under Section 157-AA U.P.Z.A.&L.R. Act would be fully applicable, as such, I am of the considered view that the alleged sale-deed dated 10.11.1998 was void and the petitioner on the basis of said sale-deed could not have acquired any right over the land in question.

So far as the contention of learned counsel for petitioner that once the land under Section 143 U.P.Z.A.&L.R. Act is declared as non-agricultural land, the proceedings under Section 166/167 U.P.Z.A.&L.R. Act could not have been initiated or if held were bad in law is concerned, it is to be observed that the petitioner on the basis of having acquired the right over the land in question by the alleged sale-deed dated 10.11.1998 had moved an application under Section 143 U.P.Z.A.&L.R. Act for getting the land in question declared as non-agricultural land. Since the petitioner has no right to the land in question on the basis of alleged sale-deed, he had no right to move the application under Section 143 U.P.Z.A.&L.R. Act, as such, the entire proceedings held under Section 143 U.P.Z.A.&L.R. Act were not maintainable and bad in law.

So far as the contention of learned counsel for petitioner that the petitioner is in possession over the land in question, as such, he is entitle to get the benefit of Section 122-B (4F) U.P.Z.A.&L.R. Act is concerned, suffice is to observe that the petitioner has claimed the right over the land in question on the basis of alleged sale-deed dated 10.11.1998 and he is in possession over the land in question subsequent to the said transaction. Since it has been held that the said execution of sale-deed was void and was barred by Section 157-AA U.P.Z.A.&L.R. Act, the petitioner could not have got the possession over the land in question, as such he is not entitle to claim the benefit of Section 122-B (4F) U.P.Z.A.&L.R. Act.

By the impugned order i.e., 22.5.2014, the Assistant Collector, Mohanlalganj, on the basis of report dated 20.1.2014 submitted by Naib Tehsildar through Tehsildar, Mohanlalganj, has come to conclusion that the land in question has been transferred in favour of petitioner on the basis of the alleged sale-deed dated 10.11.1998, which is in violation of provision of Section 157-AA U.P.Z.A.&L.R. Act, as such, in exercise of powers under Section 166/167 U.P.Z.A.&L.R. Act the land in question shall vest with the State Government. Since the land in question in the earlier proceedings under Section 143 U.P.Z.A.&L.R. Act was declared as non-agricultural land, as such, it has been provided by the Assistant Collector that the land shall be treated as agricultural land. The revisional Court has considered the submissions made by petitioner and has rejected the revision preferred against the order dated 22.5.2014.

It has been held by this Court that the entire proceedings under Section 143 U.P.Z.A.&L.R. Act were not maintainable and bad in law, as such, even if the land in question was declared as non-agricultural land, it has no meaning and it was liable to be treated as agricultural land for the purpose of proceedings under Section 166/167 U.P.Z.A.&L.R. Act.

In view of above, I do not find any infirmity or illegality in the orders impugned.

The writ petition being devoid of merit is dismissed.

Order Date :- 20.8.2015

Santosh/-