Mrs. Rekha Rani vs State Of U.P. And 4 Others
2019 Latest Caselaw 1327 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Reserved on 22.2.2019
 
Delivered on 15.3.2019
 
Court No. - 14
 

 
Case :- WRIT - C No. - 35989 of 2013
 

 
Petitioner :- Mrs. Rekha Rani
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Sanjeev Kumar Pandey,Shiv Avtar Sharma
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Pankaj Bhatia, J.

Heard learned counsel for the petitioner and learned standing counsel for the State.

The petitioner has filed the present writ petition challenging the order dated 25.4.2013 passed by the Commissioner, Aligarh and the order dated 30.10.2012 passed by the Collector, Etah.

Brief facts, giving rise to the present petition, are as follows:-

The petitioner is a purchaser of a property bearing Gata No.1023/2 area 0.034 hectare situate at village Raarpatti, Pargana Etah Sakit, Tehsil and District Etah by means of a registered Sale Deed dated 6.10.2009. The said sale deed was executed by Suresh Chandra, the respondent no.5 out of his share in the joint property owned by Suresh Chandra along with his brother Nand Kishore. It is stated that the seller of the property Suresh Chandra is a Dhobi by caste which is a Scheduled Caste and it is also stated that no permission as required under Section 157-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the Act') was obtained prior to the execution of the sale deed in favour of the petitioner.

The respondent no.2 i.e. the Collector, Etah filed a suit under Sections 166 & 169 of the Act being Case No.8 of 2012 seeking the relief of eviction and mutation of the name of State Government in respect to the property which was transferred in favour of the petitioner by virtue of a sale deed dated 6.10.2009. The averments made in the plaint were that the respondent no.5 who is Dhobi and Scheduled Caste has transferred an area of 344.10 Sq. Meters i.e. 0.034 Hectare through a registered sale deed dated 6.10.2009 in favour of the petitioner and as no permission was obtained under Section 157-A of the Act and as such by virtue of the provisions of Section 167 of the Act the property has vested in the State Government and consequently the name of the State Government should be mutated in the revenue records as well as possession of the property be given to the State Government as is required under Section 167(2) of the Act.

In response to the Plain in suit numbered as Case No.8 of 2012, the petitioner herein filed her objection only raising the question of jurisdiction stating that the Court of Collector, Etah does not have the jurisdiction relying upon the decision of the High Court rendered in the case of Rakesh Kumar Vs. State of U.P., 2012 (116) R.D. Page 69.

The Collector, Etah vide his order dated 30.10.2012 passed an order rejecting the objection of the petitioner with regard to jurisdiction and held that in the absence of permission under Section 157-A of the Act the sale deed is void as is the mandate of Section 166 of the Act and the property vests in the State Government by virtue of Section 167(1) of the Act. The said order dated 30.10.2012 was challenged by filing a revision numbered as 246 of 2012 in the Court of Commissioner, Aligarh. The main averments in the said revision were that the order has been passed without jurisdiction and for the first time it was also argued in the revisional Court that the property in dispute has become an Abadi by virtue of several constructions that have come up and for all practical purpose is Abadi.

The said revision was decided vide order dated 25.3.2013 (Annexure-5 to the writ petition) wherein the revisional Court relying on the provision of Section 157-A of the Act, held that the transfer without the permission is a void transfer and dismissed the revision.

Aggrieved against the said two orders, the present petition has been filed. The petitioner was heard on 22.2.2019 and the petitioner was granted liberty to file written synopsis. In terms of the said liberty, the petitioner has filed written synopsis relying upon the judgment of this Court dated 28.2.2012 in the case Rakesh Kumar (supra) and have also argued that the agricultural land is being used as Abadi and as such does not come within the purview of Section 166 of the Act and has thus, prayed that the orders passed are liable to be quashed in the present petition.

The State Government has filed a counter affidavit denying the averments made in the writ petition and has stressed that any transfer made without the permission under Section 157-A of the Act is void by virtue of Sections 166 & 167 of the Act. The State has further argued that a declaration regarding the nature of the land has to be necessarily obtained under Section 143 of the Act and without such declaration the nature of land cannot be said to be an Abadi. The respondents have placed reliance on the judgment of this Court in the case of Kanti Prakash Mittal Vs State of U.P. & others, {2011 (114) RD 775}.

The pleadings and the arguments raised at the bar are confined to two issues to be decided by this Court, firstly; whether the Collector has jurisdiction to pass the order as has been done by means of order dated 26.10.2012 and whether the land can be termed as Abadi only because the same is being used for non agricultural purposes without there being any declaration under Section 143 of the Act and can such a land escape the rigours of Sections 157-A, 166 & 162 of the Act.

Considering the first question raised by the counsel for the petitioner that the order passed is without jurisdiction, the petitioner has placed heavy reliance on the judgment of this Court in the case of Rakesh Kumar (supra). In the said case, the question raised before the Court was as under:-

?Who is competent authority to declare a deed of transfer void under Section 166 of the U.P.Z.A. & L.R. Act, 1950.?

The facts of that case were that a sale deed dated 1.1.1988 had come to the knowledge of Naib Tehsildar who submitted a report that the said sale deed is in contravention of Section 157-A of the Act, the said report was executed by the Assistant Collector, first class, who passed an order dated 25.3.2010 vesting the land in the Gaon Sabha in context of the said challenge, this Court proceeded to hold that the Assistant Collector was not authorized to declare the land as having vested in the State Government. I am afraid that the facts on which the said judgment was delivered are not non-existent in the present case, as in the present case the application was not filed before the Collector for declaring the land as having vested in the State Government, instead an application was filed under Section 167(2) of the Act with a prayer that the possession of the land be delivered to the State Government by passing an eviction order and that the name of the State Government be mutated in the revenue records. Thus, the said judgment has no applicability to the facts of the present case. Even otherwise in the present case, the Court before whom the order was passed is the Court of Collector and not the Assistant Collector as was the case in the judgment cited by the counsel for the petitioner. Thus, I hold that the orders passed against the petitioner cannot be termed to be without jurisdiction.

In fact, Section 163 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 prior to its amendment by U.P. Act No.20 of 1982 provided that the manner by which the sales in contravention of Section 157-A of the Act could be declared as void and a procedure was prescribed which required the sales to be as void under Rule 151 of the Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952. The said Section 163 of the Act was omitted by U.P. Act No.20 of 1982 as a result whereof, Section 166 of the Act provided for sale deeds which were made in contravention of the provisions of this Act as void by operation of law thus, after the amendment of Section 163 by U.P. Act No.21 of 1982, no declaration is required and transfer made in contravention of any provision of the Act are void without any judicial or administrative intervention. Section 166 of the Act is quoted below:-

?166. Transfer made in contravention of the Act to be void.-

Every transfer made in contravention of the provisions of this Act shall be void.

Statutory Amendments :

The original section 166 of the Act provided that 'any transfer made by or on behalf of a sirdar or asami in contravention of this Chapter shall be void.' By U.P. Act No.30 of 1975, the words 'in contravention of the provisions of this Chapter', were substituted by the words 'in contravention of the provisions of this Act', by U.P. Act No.8 of 1977, the reference of 'sirdars' was replaced by 'bhumidhars with non-transferable rights'. By U.P. Act 20 of 1982, the present section 166 was newly substituted.?

Section 167 of the Act provides for consequences of void transfers. Section 167 of the Act reads as under:-

?167. Consequences of void transfers. -

(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;

(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.?

A bare perusal of Section 167 of the Act quoted above is clear that the consequences of every transfer which is void by virtue of Section 167 of the Act have to follow without any declaration or order. However, sub section (2) of Section 167 of the Act provides the manner in which the Collector is to take over possession from any person occupying the property by virtue of a void transfer. It is under this sub section (2) of Section 167 of the Act that the suit was filed which has led to the present writ petition thus, answering the first question, I hold that the sale deed executed in favour of the petitioner in contravention of Section 157-A of the Act is void document by virtue of the provision of Section 166 of the Act.

Now coming to the second question raised by the counsel for the petitioner that the land is actually being used as Abadi and as such the rigours of Sections 157-A, 166 & 167 of the Act would not apply to the land in question by virtue of Section 143 of the Act. Section 143 of the Act is reproduced herein below:-

?143. Use of a holding for industrial or residential purposes.

1. Where Bhumidhar with transferable rights, uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector-incharge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect.

(1-A) Where declaration under sub-section (1) has to be made in respect of a part of the holding, the Assistant Collector-in-charge of the sub-division may, in the manner prescribed, demarcate such part for the purposes of such declaration.

2. Upon the grant of the declaration mentioned in sub-section (1), the provision of this Chapter (other than this section) shall cease to apply to the Bhumidhar with transferable rights with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.

3. Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act 1978, any loan by the Uttar Pradesh Financial Corporation or by any other corporation owned or controlled by the State Government, on the security of any land held by such Bhumidhar, the provisions of this Chapter (other than this section) shall cease to apply to such Bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.?

Sub section (2) of Section 143 of the Act is very clear and it is provided that on a declaration made under sub section (1) of Section 143 of the Act, the provision of Chapter VIII, would cease to apply.

The counsel for the petitioner has tried to hammer the fact that in view of there being Abadi on the land in question by virtue of sub section (2) of Section 143 of the Act, the provision of Chapter VIII, would not apply.

I am afraid that the said submissions do not merit acceptance for the reason that without any specific declaration under Section 143(1) of the Act, the agricultural land cannot be treated to be an Abadi land only because the same is being used as Abadi.

I am fortified of the judgment of this Court in the case of Kanti Prakash Mittal (supra) wherein this Court has held as under:-

?The findings which have been recorded are categorical and the questions which were framed on 12th August, 2011 remain unanswered. The petitioner purchased land from a schedule caste without permission as warranted under Section 157-A of the 1950 Act, as such the transaction as per Section 166 thereof is void. The consequences therefore under Section 167 have to follow.?

Thus, on the second question also I hold that without specific declaration under Section 143 of the Act, the land cannot be termed as Abadi land merely because Abadi exists on the said land (although there is nothing on record even to establish that Abadi exists on the land in question).

Considering the findings recorded above, the writ petition fails and is dismissed.

Order Date :- 15.3.2019

Hasnain