Smt. Saroj vs State Of U.P. And 3 Ors.
2019 Latest Caselaw 2133 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED ON 11.3.2019
 
DELIVERED ON 30.3.2019
 
Court No. - 21
 

 
Case :- WRIT - C No. - 8719 of 2014
 

 
Petitioner :- Smt. Saroj
 
Respondent :- State Of U.P. And 3 Ors.
 
Counsel for Petitioner :- Jai Narain
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pankaj Bhatia,J.

No one appears on behalf of the petitioner in the revised call.

Heard learned Standing Counsel for the State-respondents.

The present petition has been filed challenging the order dated 25.4.2013, (Annexure-3 to the writ petition), passed by Additional Commissioner, (Administration), Aligarh Division, Aligarh in Revision No. 244 of 2012 and the order dated 30.10.2012 (Annexure-1 to the writ petition), passed by Collector, Etah in Case No. 07 of 2012.

The facts in brief are that Nand Kishore and Suresh Chand, two brothers are the owners of Gata No. 1023/2/0.081 hectare situated in Village Raar Patti, Pargana Etah Sakeet, District Etah. Nand Kishore belongs to Dhobi caste which is a Scheduled Caste. It is stated that Suresh Chand, the co-owner of the property, executed a registered sale deed of 344.10 square meter in favour of Smt. Rekha Rani, wife of Satendra Kumar and Nand Kishore also executed a registered sale deed of his share admeasuring 344.10 square meter in favour of the petitioner who is claimed to be belonging Backward Class.

In an application under sections 166 & 167 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act') before the Collector, Etah was instituted as Case No. 7 of 2012 (State vs. Smt. Saroj) by the state on the ground that sale deed has been executed in favour of the petitioner without obtaining permissions under section 157(A) of the Act and by virtue of provisions of sections 166 and Section 167(1) of the Act, the sale is void and the property vests in the State Government and also it was prayed that the name of the State Government be incorporated in the records and the petitioner be evicted under section 167(2) of the Act. The petitioner put in appearance before the Collector, Etah and submitted that the Collector does not have the jurisdiction and as such it was prayed that the application filed by the State under Sections 166/167 of the Act be dismissed.

The Collector, Etah, vide his order dated 30.10.2012, allowed the application filed by the State and held that as the sale deed has been executed by a person belonging to Scheduled Caste without obtaining any permission under section 157(A) of the Act, the sale deed executed in favour of the petitioner was void by virtue of Section 166 of the Act and the property vests in the State by virtue of Section 167(1) of the Act. The Collector further directed that steps for possession be taken under Section 167(2) of the Act and the Tehsildar was directed to take further steps in that regards. The petitioner, aggrieved of the said order dated 30.10.2012, preferred a Revision No. 244 of 2012 before the Additional Commissioner, Aligarh. The Revisional Authority, vide its judgement and order dated 25.4.2013, dismissed the revision and upheld the order dated 30.10.2012 again on the ground that the sale deed has been executed without obtaining the permission under section 157(A) of the Act and by operation of law, the sale deed is null and void and vests in the State Government. The present petition has been filed challenging both the said orders. At the time of admission, this Court had passed an order on 12.2.2014 which reads as under:

"Heard Sri Jai Narain, learned counsel for the petitioner and learned Standing Counsel for the State respondents.

Learned counsel for the petitioner contends that both the courts below have erred in vesting the land in the State treating the transaction contrary to the provision contained under Section 157-A of U.P.Zamindari Abolition and Land Reforms Act, 1950.

Matter requires scrutiny.

Issue notice.

Notices on behalf of respondents no. 1 to 3 have been accepted by the office of learned Chief Standing Counsel, therefore notice need not be served again to respondents no. 1 to 3.

Issue notice to the respondent no. 4 through registered post returnable at an early date.

As an interim measure without prejudice to the right and contention of the parties, the parties are directed to maintain status quo as on date with respect to nature and possession over the land in dispute and they are further restrained from creating any third party right over the land in dispute."

The matter was listed for hearing on 11.3.2019 i.e. after about 5 years. No one appeared to press this petition on behalf of the petitioner even in the revised call. The file was perused with the assistance of Standing Counsel and Standing Counsel was heard in the matter. In response to the allegations made in the writ petition, the State has filed its counter affidavit merely highlighting the provisions of the Act i.e. sections 157(A), 166 and 167(1) of the Act.

The careful perusal of the ground raised in the writ petition makes it clear that the petitioner has nowhere denied that the seller of the property was not a person falling under the Scheduled Caste, the only ground raised in the writ petition is that no proper opportunity of hearing was given before passing the impugned order and the land in question is being used as Abadi land and as such the restrictions contained in Section 157(A) are not applicable by virtue of section 143 of the Act. There is no document on record to establish that any declaration was made under section 143 of the Act. Thus, the two submissions made by the petitioner in the petition are to be considered.

Considering the first submission that the land is being used as Abadi reliance is placed upon section 143 of the Act, the Court perused the provisions of section 143 of the Act, which are being reproduced hereinabelow:

"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 and State of U.P., [2011(9)ADJ 142] 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, I hold that without specific declaration under section 143 of the Act, the land cannot be termed as Abadi land merely Abadi exists on the said land. With regard to the statutory provisions contained in Section 157-A of the Act, the perusal of the Act and 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 omission 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 :

Th 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.

In the present writ petition, there is no whisper to the effect that the seller of the land is not a person of Scheduled Caste or that any declaration was made u/s 143 of the Act and, thus, I am inclined to hold that the sale deed executed in favour of the petitioner was void by virtue of Section 166 of the Act and vests in the State Government by the operation of Section 167(1) of the Act.

In view of the findings recorded above, the writ petition fails and is dismissed.

Interim order dated 12.2.2014 is vacated.

Order Date :- 30.3.2019

Puspendra