Saidan vs Board Of Revenute U P And Others
2022 Latest Caselaw 20019 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						       AFR
 
						       Court No. 52
 
						       Reserved on: 21.11.2022
 
						       Delivered on: 6.12.2022
 

 
				         WRIT - B No. - 3586 of 2018
 

 
Petitioner :- 			Saidan
 
Respondent :- 			Board of Revenue, U.P. & Others
 
Counsel for Petitioner:- 	Santosh Kmar Tiwari
 
Counsel for Respondent :- 	C.S.C., Arun Kumar Pandey
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Santosh Kumar Tiwari, counsel for the petitioner, Sri Arun Kumar Pandey, counsel for the respondent - gaon sabha and the learned standing counsel for respondent nos. 1 & 2.

2. Brief facts of the case are that khata no.4. khasra no.6/12, area 1.265 hectare situated at mauja- Sabuwala, Pargana- Badhapur, Tehsil- Nagina, District Bijnor, was initially recorded in the name of Amar Singh, son of Sukke who belongs to the scheduled caste community. Amar Singh had taken a loan from Khadi Gramodyog by mortgaging the aforesaid land but the borrower failed to repay the amount, accordingly, the mortgaged land was attached and put to auction. In the auction proceeding, petitioner was the highest bidder, accordingly, the sale deed was executed in favour of the petitioner on the basis of auction sale took place on 21.12.2000. On the basis of the sale deed, name of the petitioner was recorded in the revenue records through mutation proceeding. Some complaints were lodged by respondent nos. 4 to 10 before the Additional Collector stating that property in question originally belongs to scheduled caste, as such, same cannot be transferred to the petitioner, without obtaining permission from the Collector. The Additional Collector without affording any opportunity of hearing to the petitioner, passed an ex parte order dated 6.10.2008, expunging the name of the petitioner from the revenue records and vesting the property in favour of the State. Petitioner filed a restoration application, delay condonation application and stay application against the order dated 6.10.2008 but the Additional Collector has dismissed the restoration application of the petitioner vide order dated 9.4.2009 on the ground that petitioner was not party in the proceeding, hence the order dated 6.11.2008, cannot be recalled / set aside on the application of the petitioner. Petitioner under the legal advice, challenged the orders dated 6.10.2008 and 9.4.2009 before the District Consumer Redressal Forum, Bijnor by means of filing a Complaint Case No.167/2009 which was dismissed on 1.1.2011 on the ground that Forum has no jurisdiction to decide the dispute. After receiving the certified copies of the order and other relevant documents, petitioner approached counsel for taking necessary steps in the matter, accordingly, a revision was filed before the Board of Revenue on 22.12.2017 along with an application under Section 5 of the Limitation Act supported by an affidavit. The Board of Revenue, without considering the case of the petitioner on merit, has dismissed the revision filed by the petitioner on the ground of limitation. Hence, this writ petition.

3. This Court while entertaining the writ petition has passed the following interim order dated 23.4.2018:-

"It is contended on behalf of the petitioner that Plot No.4 area 1.265 hectare has been purchased by the petitioner in auction. Owner of the said land, namely, Amar Singh had taken loan from Khadi Gramodyog by mortgaging the aforesaid land in favour of the Khadi Gramodyog. Due to default in payment of loan amount, the said land was put to auction and the petitioner being a highest bidder had purchased the said land. A copy of the sale deed executed by the concerned authority is on record as Annexure No.1 to the writ petition. It is stated that without considering the matter in its proper perspective, the second application of the petitioner has wrongly been rejected by the Board of Revenue.

The matter needs consideration.

Learned Standing Counsel has accepted notice on behalf of the respondent no.3.

Issue notice to the respondent nos. 4 to 10.

Counter affidavit be filed by all the respondents on or before date fixed.

List this case on 28th August 2018.

Till the next date of listing, both the parties shall maintain status quo with regard to the property in dispute."

4. In pursuance of the order dated 23.4.2018, respondent no.3 has filed his counter affidavit and petitioner has filed his rejoinder affidavit also. Service upon respondent nos.4 to 10 is deemed sufficient as per office report dated 27.8.2018.

5. Counsel for the petitioner submitted that petitioner had purchased the land in question in an auction sale being the highest bidder, accordingly, the sale deed was executed in favour of the petitioner by the State, as such, the bar of Section 157-A of the U.P.Z.A. & L.R. Act cannot be imposed upon the petitioner in spite of the fact that borrower belongs to the scheduled caste community. He further submitted that on the basis of the auction sale, a sale certificate and sale deed executed in favour of the petitioner, the name of petitioner was recorded in the revenue records but without affording opportunity of hearing to the petitioner, petitioner's entry has been expunged and the land was ordered to be vested in the State. He also submitted that the recall / restoration application filed by the petitioner has been dismissed on the arbitrary ground that petitioner was not party in the proceeding under Section 157-A, as such, there is no necessity to afford opportunity to the petitioner. He further submitted that revision filed before the Board of Revenue against the order of the Additional Collector was barred by limitation but the delay was properly explained, the Board of Revenue has dismissed the revision on the ground of limitation which is illegal.

6. Counsel for the petitioner placed reliance upon the judgment reported in 1981 All. L.J. 794 794, Ram Saran vs. The 1st Addl. District Judge, Rampur and Others, Civil Misc. Writ Petition No.28205/1992, Harmal vs. Special / Addl. District Judge, decided on 1.10.1992, 2019 0 Supreme (All) 37, Shyam Sunder and Others vs. Deputy Director of Consolidation, Sitapur and Others. Counsel for the petitioner, on the basis of the aforesaid judgments, submitted that bar of Section 157-A of the U.P. Z.A. & L.R. Act will not apply in respect to the auction sale proceeding. Counsel for the petitioner further placed reliance upon the judgment reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnag and Another vs. Mst. Kantiji & Others on the point that in place of deciding the dispute on technical grounds, the matter should be adjudicated on merit. It is also submitted that the writ petition be allowed and the petitioner, who is a parda nasheen lady is entitled to the relief claimed in the writ petition.

7. On the other hand, learned standing counsel submitted that revision filed by the petitioner before the Board of Revenue was filed with inordinate delay of about 7 years, as such, the revision was rightly dismissed by the Board of Revenue on the ground of limitation. He further submitted that sufficiency of cause and reality of cause are two different things and while considering the reality of cause, there can be no liberal view of the matter, as such, case law cited by counsel for the petitioner in the case of Collector, Land Acquisition Anantnag and Another (supra), will not be applicable. He further submitted that the land has been rightly vested in the State as provisions of Section 157-A of the U.P. Z.A. & L.R. Act is fulfilled.

8. I have considered the arguments advanced by counsel for the parties and perused the records.

9. There is no dispute about the fact that the petitioner is the highest bidder in the auction sale proceeding which was held on 21.12.2000 and the sale deed was accordingly executed in favour of the petitioner by State after holding auction of the property belonging to borrower who belongs to scheduled caste community. The name of the petitioner was accordingly recorded in the revenue records but the proceedings under Section 157-A have been initiated and the land of the petitioner has been vested in the State after expunging his name. The revision filed by the petitioner with delay before the Board of Revenue was dismissed on the ground of limitation.

10. For appreciating the controversy involved in the instant petition, a perusal of Section 157-A of the Act will be necessary which is as follows:

"157-A Restrictions on transfer of land by members of Scheduled Castes.-

(1) Without prejudice to the restriction contained in Sections 153 to 157, no bhumidhar or asami belonging to a scheduled caster shall have the right to transfer any land by way of sale, gift, mortgage or lease to a person not belonging to a scheduled caste, except with the previous approval of the Collector:

Provided that no such approval shall be given by the Collector in case where the land held in Uttar Pradesh by the transferor on the date of application under this section is less than 1.26 hectares or where the area of land so held in Uttar Pradesh by the transferor on the said date is after such transfer, likely to be reduced to less than 1.26 hectares.

(2) The Collector shall, on an application made in that behalf in the prescribed manner, make such inquiry as may be prescribed."

11. The perusal of the Section 157-A of the U.P. Z.A. & L.R. Act fully demonstrates that when a person belonging to the scheduled caste, is transferring his property to a person not belonging to a scheduled caste, the previous approval of the Collector is mandatory but in the present case the borrower who was the owner of the property belong to the scheduled caste and the property of the borrower was auctioned according to the provisions contained under the U.P. Z.A. & L.R. Act and the Rules framed thereunder, after the auction took place and affirmed, the said sale deed was executed in favour of the petitioner by the State, as such, the bar of section 157-A will not apply in the matter.

12. This Court in Shyam Sunder (supra) has considered the controversy relating to Section 157-A and has held that Section 157-A of the U.P.Z.A. & L.R. Act does not apply to a distraint sale for recovery of dues by the bank in accordance with law, as such, the restriction of prior permission from Collector could not apply. Paragraph no.10 of the judgment in Shyam Sunder (supra) is as follows:

"10. As regards the other contention based on Section 157-A of the Act, 1950 is concerned, the said provision intents to protect the Schedule Caste persons from exploitation or fraudulent transaction under undue influence, coercion etc. The transaction at hand is not such a transaction but is a transaction permissible in law for recovery of dues. Here also the provision applies to a bhoomidhar, Asami belonging to a Schedule Caste, who shall have the right to transfer any land by way of sale, gift, mortgage or lease to a person not belonging to a Schedule Caste, with the previous approval of the Collector. This does not apply to a distraint sale for recovery of dues by a Bank in accordance with law as is the case at hand. In this regard also there is a direct decision on the point reported in 1981 RD 252; Ram Saran Vs. 1st Additional District Judge, Rampur and Ors. wherein it has been held that the said restriction of prior permission from Collector applies to voluntary sale by the Bhoomidhar but not to forced sale undertaken under the coercive steps and distraint prescribed under the Act, 1989 and the Rules, 1971 referred hereinabove. The principle contained therein applies to this case also."

13. Paragraph no.7 of the judgment rendered in Ram Saran (supra) is also relevant which is as follows:-

"7. Learned counsel for the petitioner has particularly relied on Section 23(2) of the Act which provides that nothing in sub-section (1) shall apply to any sale made under order of court in execution of any decree or order for payment of money. The Legislature was aware of the fact that the sale by an auction may come up for consideration in execution of a decree which specifically excludes the said sale under Section 23 of the Act. No such specific provision has been made under Section 157-A of the Act. In the circumstances Section 23 does not advance the arguments made on behalf of the petitioner but in fact supports the view which I have already taken above. In any case as I have already stated above here it is not a case for transfer by the petitioner in favour of a third party. It is a case of an auction sale held in pursuance of the decree by the court passed against the petitioner."

14. Considering the provisions of Section 157-A of the U.P.Z.A. & L.R. Act as well as ratio of law laid down in Shyam Sunder (supra) & Ram Saran (supra), it is very much clear that bar of Section 157-A of the U.P. Z.A. & L.R. Act will not be applicable in the present matter where the sale deed has been executed after auction sale by state in favour of petitioner who belongs to upper caste irrespective of the fact that earlier owner of the land who was borrower, belongs to scheduled caste community.

15. So far as the dismissal of revision by the Board of Revision on the ground of limitation is concerned, the Apex Court in the case of Collector, Land Acquisition Anantnag and Another (supra) has held that in place of deciding the dispute on technical ground, the controversy should be conducted on merits.

16. In the present case, since the bar of Section 157-A of the U.P. Z.A. & L.R. Act is not applicable, as such, the Board of Revenue in place of dismissing the revision on limitation, should have considered the revision on merit, as such, the impugned revisional order cannot be sustained in the eyes of law. The order impugned passed by the Additional Collector, rejecting the recall application of the petitioner on the ground that petitioner has no authority in the proceeding under Section 157-A of the U.P.Z.A. & L.R. Act, is also erroneous.

17. Considering the facts and circumstances of the case as well as the ratio of law laid down by this Court, the right of the petitioner cannot be infringed and the property cannot be vested in the State due to bar contained under Section 157-A of the U.P. Z.A. & L.R. Act, as such, the impugned order dated 23.2.2018 passed by the Board of Revenue and orders dated 9.4.2009 and 6.10.2008 passed by the Additional Collector (Administration), District Bijnor are liable to be set aside and the same are hereby set aside.

18. The writ petition stands allowed and the petitioner's entry shall remain intact on the basis of the sale deed executed in favour of the petitioner on 27.3.2001 in respect of the disputed plots.

19. No order as to costs.

uiOrder Date :- 6.12.2022

C.Prakash

(Chandra Kumar Rai,J.)