Chhotey Lal vs State Of U.P. And 2 Ors.
2016 Latest Caselaw 2207 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 18
 

 
Case :- WRIT - C No. - 20054 of 2016
 

 
Petitioner :- Chhotey Lal
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Petitioner :- R.P. Mishra
 
Counsel for Respondent :- C.S.C.,Manu Singh
 

 
Hon'ble Anjani Kumar Mishra,J.

Heard learned counsel for the petitioner and Sri Manu Singh, who has accepted notice on behalf of Respondent no.3, Gaon Sabha.

The writ petition arises out of proceedings under Section 166/167 of the U.P. Zamindari Abolition and Land Reforms Act, wherein the sale deed in favour of the petitioner, executed by one Sumer Singh, has been held to be hit by Section 157-A / 157-AA of the U.P. Zaminari Abolition and Land Reforms Act. The same has therefore been treated to be a void transaction and the land, subject matter of the sale, has been ordered to be recorded in the name of the State.

The contention of the learned counsel for the petitioner is that in the sale deed, the vendor had mentioned that he belongs to the Backward Category. The petitioner was not aware of the fact that he belongs to the Scheduled Castes.

The second contention is that in view of Rule 338 of the Act, the proceedings could have been initiated within a period of 6 years from the sale deed. In the case at hand, the proceedings have been initiated upon a complaint which was made almost 13 years after the sale deed was executed and the name of the petitioner had been duly mutated in the revenue records on its basis.

It is further contended that once Rules have been framed by the State, especially Rule 338 of the U.P. Zamindari Abolition and Land Reforms Rules, the Court is bound to abide by the same and the orders that have been passed, contrary to the said rule, are not sustainable.

The Courts below have recorded a categorical finding that the petitioners' vendor belongs to the Scheduled Caste. This finding has not been specifically challenged in the writ petition. The only contention is that the petitioner was under the impression that his vendor was an OBC.

In so far as, the contention that the proceeding against the petitioner was barred by time in view of Rule 338 and the entry at Sl.No.19 contained in Appendix III of the Rules, it would be relevant to note the admitted facts.

The petitioners' vendor belongs to the Scheduled Caste. The petitioner himself belongs to the OBC category. Section 157-A provides that where a bhumidhar with transferable rights, belonging to the Scheduled Castes executes a sale deed in favour of a person who does not belong to the Scheduled Caste, he has to obtain the previous approval of the Collector.

A similar provision is to be found in Section 157-AA of the Act wherein also a member of the Scheduled caste who becomes a bhumidhar with transferable rights in accordance with the provisions of Section 131(B) of the Act, is required to obtain prior permission before executing a sale deed.

Section 166 of the Act mandates that any transfer made in contravention of the provisions of the Act shall be void. The consequences of such a void transfer are enumerated in Section 167.

In the case at hand, the finding  is that the vendor, belonging to the Scheduled Caste, executed a sale deed in favour of the petitioner who belongs to the OBC Category, as already noticed above. Such a transfer made without the prior permission of the Collector is necessarily a void transfer in view of Section 166 of the Act. A transfer which is void, necessarily means that it was void ab-initio i.e. void from its inception. It is settled law that a void transaction can be ignored even in collateral proceedings. Besides, no benefit can accrue in favour of the petitioner by means of a transfer, which is void ab initio.

In such view of the matter, the submission made by the learned counsel for the petitioner that a limitation is attached for declaring a void transaction to be void, cannot be accepted. Such interpretation would be contrary to the basic nature of the transaction itself, which under law is, void.

I therefore do not find any substance in the submission that the impugned orders could not have been passed in view of Rule 338 of the Rules.

There is yet another reason why the said provision will not be attracted in the instant case.

The petitioner has relied upon the entry No.19 in Appendix III of the Rules. This entry mentions the period of limitation of six years for a suit for ejectment of a bhumidhar. It reas as bleow :-

Sl.No.

Section of the Act

Description of suit, application and other proceeding

Period of limitation

Time from which period begins to run

Proper court fees

Suits for ejectment of bhumidhar

Six years

From the date of illegal transfer

As in the Court fees Act, 1870, on one year's revenue

Suits for ejectment of a sirdar or asami

'Do

Ditto

Ditto

The provision which has been invoked in the instant case is Section 166 of the Act which was incorporated by U.P. Act No.20 of 1982 with effect from 03.06.1981. The Section invoked, was introduced, later in time as compared to the entry at Sl.19 in Appendix III, which in any case, does not pertain to Section 166, but provides the limitation for proceedings under Section 163 of the Act. Section 163 was omitted by U.P. Act No.20 of 1982. Moreover, the Appendix III does not provide for any limitation for invoking Section 166.

Besides, Section 167, provides that the subject matter of a void transfer is deemed to vest in the State, free from all encumbrances, from the date of the transfer itself and it further empowers the Collector to even use force to evict any person in occupation and to obtain possession using such force.

The Courts below have rightly held that no limitation has been provided for initiating proceedings against a bhumidhar under Section 166/167 of the Act.

At this stage, learned counsel for the petitioner submits that he is also relying upon the entry at Sl. No.20 in Appendix III.

The vendor of the petitioner was a bhumidhar with transferable rights and therefore the entry at Sl.No.20 has absolutely no application in the instant case which provides a limitation for suits under Section 167, for ejectment of a sirdar or asami only. It does not refer to bhumidhars.

Section 163 which has been omitted by Act No.20 of 1984 read as follows -

"163. (1) Where a transfer of any holding or part thereof has been in contravention of the provisions of Section 154, the transferee shall, notwithstanding anything in any law be liable to ejectment from such holding or part on the suit of the Gaon Sabha, which shall thereupon become vacant land; but nothing in this section will prejudice the right of the transferor to realize the whole portion of the price remaining unpaid, or the right of any other person other than the transferee to proceed against such holding or land in enforcement of any claim thereto.

(2) To every suit for ejectment under this section the transferor shall be made a party."

Section 163 prior to its being omitted, was a provision for ejectment of any person, who, on account of a transfer became entitled to land which together with any land held by him or by his family, in aggregate, exceed 30 acres, in Uttar Pradesh. The entry at Sl.No.19 in Appendix III pertains to such a suit for ejectment. The provision in the case at hand is a totally different provision which holds that any transfer made in violation of the provisions of the Act is void. This entry in Appendix III therefore, cannot be held to apply to proceedings under Section 166/167 of the Act as they stand today, in the statute book viz-a-viz a bhumidhar.

It has lastly been submitted that the established principle for interpretation of statutes is that any interpretation which renders a provision redundant, is not to be made. The contention therefore is that since the entry at Sl. No.19 provides a limitation of 6 years, the same must be read harmoniously and any interpretation which renders it redundant, is to be avoided. Even this submission, in my considered opinion does not improve the case of the petitioner.

As noticed above, the entry at Sl.No. 19 in Appendix III pertains to a suit under Section 163 of the Act, which section has since been omitted. Appendix III to the Rules is part of subordinate legislation, the Rules which have been framed in exercise of the powers conferred by the Act itself.

In my considered opinion, any subordinate legislation will not regulate the provisions of the Act or over ride the categorical provisions of the Act itself. Rules are framed to aid in the implementation of the provisions contained in the Act and are not meant to over ride the provisions of the Act itself.

Once Section 163 was omitted by the legislature vide U.P. Act No.20 of 1983, the limitation provided for initiating proceedings under the said Section 163 is of no consequence. In my considered opinion, this entry at Sl.No.19 in Appendix III was rendered redundant, once the Section itself was omitted. This entry should also have been deleted as a consequence of omission of Section 163.

Besides as already noticed above, Section 166 is categorical that as a consequence of any void transfer, the land which is the subject matter of such void transfer is deemed to vest in the State, free from all encumbrances, from the date of the void transfer.

The submission that has been made, in my considered opinion is valid only for interpretation of various Sections of the Act itself. It cannot be gainfully submitted that a redundant provision in the subordinate legislation namely the Rules can regulate a over ride a categorical provision in the Act itself.

The Rule relied upon namely Rule 338 as also the entry at Sl.No.19 in Appendix III were substituted by a notification dated 25th August 1953. Section 166 has been included in the Act in 1981. The Rules framed earlier in time cannot in my considered opinion regulate and govern a subsequent incorporation in the Act itself.

In this connection, it would further be relevant to note that Section 163 was omitted from the statue because of the amendment made in the Act by the U.P. Land Laws Amendment Act 1982, Act No.20 of 1982 as it had ceased to have any relevance in view of the amended provisions.

Besides the following extract from the Prefactory Note 1- Exract from Statement of Objects and Reasons as attached to the bill which became Act No.20 of 1983, further clarifies the position beyond any semblance of doubt -

"3. Under the existing provisions the transfers made in contravention fo the provisions of the said Act are declared void after following the given procedure. It has been considered necessary to provide that such transfers shall be deemed to be void and no declaration shall be necessary therefor."

The writ petition is therefore dismissed.

Order Date :- 4.5.2016

RKM