Baliram Yadav vs Board Of Revenue Lko, & Others
2017 Latest Caselaw 6102 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 24.10.2017
 
Delivered on 01.11.2017
 
Court No. - 33
 
										AFR
 
Case :- WRIT - B No. - 11196 of 2008
 
Petitioner :- Baliram Yadav
 
Respondent :- Board Of Revenue Lko, & Others
 
Counsel for Petitioner :- Mohd. Aman Khan; Anil Kumar Mishra
 
Counsel for Respondent :- C.S.C., A.N. Agarwal
 

 
Hon'ble Manoj Misra, J.

The present petition has been filed challenging the order dated 31.10.2007 passed by Member (Judicial), Board of Revenue, Lucknow in Revision No.129 of 2003-04 to the extent it directs the Collector to initiate proceedings under Section 167 of the U.P. Zamindari & Land Reforms Act, 1950 (in short the Act).

The facts giving rise to the present petition are as follows:

One Smt. Subra Bano, recorded as Bhumidhar, executed a sale deed dated 19.11.2003 in favour of the petitioner. On the basis of the aforesaid sale deed, the petitioner applied for mutation. The Assistant Record Officer by his order dated 26.12.2003, upon finding that the sale deed was duly executed and that parties to the sale were neither Scheduled Caste nor Scheduled Tribe, directed mutation of the name of the petitioner. Against the order dated 26.12.2003, the third respondent (Jayanti Devi) filed an appeal under Section 210 of the U.P. Land Revenue Act, 1901 (in short L.R. Act). She claimed that the land in dispute was originally recorded in the name of Jagardev who was a member of Scheduled Tribe; Subra Bano purchased the land, vide sale deed dated 17.01.1987, from Jagardev, without the permission of the Collector required under Section 157-B of the Act; and therefore, the transfer was void. The Record Officer vide order dated 18.06.2004 dismissed the appeal by holding that Jayanti Devi could not substantiate her right in the land. Aggrieved by the order of the Record Officer, the third respondent filed a revision before the Board of Revenue.

The Board of Revenue though, by its order dated 31.10.2007, dismissed the revision but observed that if the sale deed executed by Jagardev in favour of Subra Bano was void on account of not obtaining permission of the Collector, then the consequences as provided by Section 167 of the Act would follow. Accordingly, the Board of Revenue directed the Collector to hold enquiry and draw proceeding under Section 167 of the Act. It is with this direction that the petitioner is aggrieved and has prayed that the said direction be quashed.

The learned counsel for the petitioner submitted that the sale deed executed by Jagardev in favour of Smt. Subra Bano is dated 17.01.1987 whereas the limitation for taking recourse to proceeding under Section 167 of the Act is six years, as provided by Entry No.20 in Appendix-III of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 (in short the Rules), therefore, keeping in mind the provisions of Rule 338 of the Rules, the Board of Revenue was not legally justified in directing proceeding under Section 167 of the Act.

The learned standing counsel who appeared for the respondents 1 and 2 submitted that by U.P. Act No.20 of 1982, w.e.f. 03.06.1981, section 167 of the Act stood substituted. Under the substituted section, there is deemed vesting of the subject matter of transfer in the State with effect from the date of transfer if the transfer is made in violation of the provisions of the Act and that in that regard no suit need be filed. Therefore, after the amendment, the Rules cannot bar proceeding under sub-section (2) of section 167 of the Act notwithstanding that they are taken after six years.

I have given thoughtful consideration to the rival submissions.

Before proceeding to test the weight of rival submissions, it would be useful to examine the Legislative changes brought about in Section 167 of the Act.

Originally Section 167 of the Act read as follows:

"Where a sirdar or asami has made any transfer in contravention of the provisions of this Act, the transferee and every other person who may have thus obtained possession of the whole or part of the holding shall be liable to ejectment on the suit of the Gaon Sabha or the land-holders, as the case may be."

Thereafter, by Amending Act XVII of 1956 the words "or the collector on behalf of the Gaon Sabha" were introduced in between the words "Gaon Sabha" and the words "or the land- holder".

Later, by means of Section 38 of U.P. Act No. XXXVII of 1958, the existing section 167 was renumbered as sub-section (1) and sub-section (2) was added with some modification so as that section 167 read as follows:-

"S. 167 Consequences of void transfers. (1) Where a sirdar or asami has made any transfer in contravention of the provisions of this Act, the transferee and every person who may have thus obtained possession of the whole or part of the holding shall be liable to ejectment on the suit of the Goan Sabha or the landholder, as the case may be.

(2) A decree for ejectment under sub-section (1) may direct the ejectment of the sirdar or asami from the whole or part of the holding as the Court may, having regard to the circumstances of the case, direct."

Thereafter by means of section 20 of the U.P. Land Laws (Amendment) Act, XXX of 1975, sub-section (3) was added, which was as follows:

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

By U.P. Act No.35 of 1976, with effect from June 15, 1976, Sections 163 and 167 of the Act were substituted.

Section 163, as substituted by U.P. Act No.35 of 1976, provided as follows:

"163. Consequences of void transfers by bhumidhars.---(1) Where any holding or part thereof has been transferred in contravention of Section 154 or Section 154-A or Section 157-A, then notwithstanding anything contained in any law for the time being in force or any contract, decree or order of any court, the Assistant Collector First Class may, either suo motu or on the application of any person, and after making such inquiry as he thinks fit, by order declare such transfer to be void:

Provided that no order under this sub-section shall be made without affording opportunity of hearing to the transferer as well as to the transferee.

(2) Where the transfer of any holding or part has been declared to be void under sub-section (1) the following consequences shall ensue, namely ;-

(a) the subject-matter of transfer shall, with effect from the date of such order, be deemed to have vested in the State Government free from all encumbrances;

(b) the trees, crops and wells existing in the holding on the date of the order shall with effect from the said date be deemed to have been vested in the State Government free from all encumbrances;

(c) the transferee may remove other movable property or the materials of any immovable property existing on the holding on the date of the order, within such time as may be prescribed.

(3) Where any holding or part thereof or other property has vested in the State Government under sub-section (2), and any person is in unauthorised occupation thereof, it shall be lawful for the Collector to direct that such person be evicted therefrom and for that purpose he may use or cause to be used such force as may be necessary."

Section 167, as substituted by U.P. Act No.35 of 1976, provided as follows:-

"167. The consequences specified in clauses (a) to (c ) of sub-section (2) of Section 163 shall ensue in respect of every transfer which is void by virtue of Section 166 with the substitution of references to the date of the order under sub-section (1) of Section 163 by references to the date of such transfer."

By U.P. No.20 of 1982, with effect from 03.06.1981, Section 167 of the Act, 1950 was substituted and Section 163 was deleted. A perusal of the Statement of Objects and Reasons as attached to the Bill, which have been extracted in Part IV, page 197 of 1982 LLT, would reveal that under the existing provisions the transfers made in contravention of the provisions of the said Act were declared void after following the given procedure therefore it was considered necessary to provide that such transfers shall be deemed to be void and no declaration shall be necessary.

The provisions of Section 167 of the Act, as substituted by U.P. Act No.20 of 1982, are extracted here under:-

"167. (1) The following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely-

(a) the subject-matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances;

(b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances; and

(c) the transferee may remove other moveable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.

(2) Where any land or other property has vested in the State Government under sub-section (1), it shall be lawful for the Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom. For the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary."

Consequent to the amendment carried out by U.P. Act No.20 of 1982, the subject matter of transfer, in case the transfer is void by virtue of Section 166 of the Act, would, with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances. There is no necessity to draw a proceeding or institute a suit for such declaration as was earlier. Further, sub-section (2) of Section 167 of the Act does not provide for institution of any suit, as was required to be instituted under the old Section 167 of the Act. Sub-section (2) of Section 167, as it stands substituted, enables the Collector to take over possession over such land which has vested in the State Government under sub-section (1). It does not require the Collector to institute any suit or proceeding though it empowers the Collector to use or cause to be used such force as may be necessary.

From above, it is clear that under the amended provisions of section 167 of the Act, as substituted by U.P. Act No.20 of 1982, there is no requirement to institute a suit for declaration that the subject matter of such transfer has vested in the State and therefore the State is entitled to possession. Under the amended provisions of Section 167 there appears no need to draw any formal proceeding in that regard against any particular person because by legal fiction there is deemed vesting in the State free from all encumbrances. Sub-section (2) enables the Collector to takeover possession over such land or property and to direct that any person occupying such land or property be evicted therefrom. It further empowers the Collector to use or cause to be used such force as may be necessary. For the above purpose a formal proceeding is not required to be instituted or drawn as contemplated by Entry 20 in Appendix III of the Rules read with Rule 338 of the Rules though the principles of natural justice would require that such unauthorised occupant gets a notice to enable him to challenge the very basis or foundation of the action proposed against him under sub-section (2) of section 167 of the Act. This court is therefore of the considered view that the amended statutory provisions of Section 167 of the Act do not contemplate filing of a suit or proceeding of the nature contemplated by Entry No.20 in Appendix III read with Rule 338 of the Rules.

It is well settled legal principle that where there is any inconsistency between the provisions of the statute and the rules framed there under, then the statutory provisions would prevail and the rules will have to give way to statutory provisions (vide Ispat Industries Limited v. Commissioner of Customs, (2006) 12 SCC 583, paragraph 29; S.T.O. Moradabad v. H. Farid Ahmed & Sons, (1976) 1 SCC 245, paragraph 3; and Union of India v. C. Dinakar, (2004) 6 SCC 118, paragraph 19). Therefore, once it is found that under the amended provisions of Section 167 of the Act no institution of a suit or drawing of formal proceeding is required, there would be no applicability of Entry No.20 in Appendix III of the Rules on an action under the amended sub-section (2) of Section 167 of the Act.

For the reasons noted above, this court is of the view that the period of limitation provided by Entry No.20 in Appendix-III of U.P. Z.A. & L.R. Rules, 1952 for institution of suits for ejectment of Sirdar or Asami is not applicable to an exercise to take possession, under the amended sub-section (2) of Section 167 of the Act, of a land vested under sub-section (1) of Section 167 of the Act.

As, in the instant case, admittedly, the alleged transfer by Jagardev in favour of Subra Bano was made in the year 1987, when the substituted Section 167 of the Act was operative, no bar of limitation would operate on exercise to take possession under sub-section (2) of Section 167 of the Act. Hence, the contention of the learned counsel for the petitioner that the Board of Revenue could not have given liberty to the Collector to take steps under Section 167 (2) of the Act, cannot be accepted and is, accordingly, rejected.

It is however made clear that this Court has not expressed any opinion on: (a) whether the sale deed executed by Jagardev in favour of Subra Bano was void being contrary to any of the provisions of the Act; and (b) whether the provisions of Section 167 of the Act are attracted to the facts of the case. Therefore, in case any proceeding is undertaken against the petitioner for taking possession, it would be open to the petitioner to raise all such pleas, as he may be advised, except the plea of proceeding being barred by limitation.

With the aforesaid liberty and observations, the petition is disposed of.

Order Date :- 1.11.2017

AKShukla/-