Birendra Singh And 4 Others vs Board Of Revenue And 9 Others
2022 Latest Caselaw 22671 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on: 01.12.2022
 
Delivered on  23.12.2022
 
A.F.R.
 
Court No. - 52
 
Case :- WRIT - B No. - 45796 of 2017
 
Petitioner :- Birendra Singh And 4 Others
 
Respondent :- Board Of Revenue And 9 Others
 
Counsel for Petitioner :- Suneel Kumar Rai,Basant Kumar Upadhyay,Saket Mani Tripathi
 
Counsel for Respondent :- C.S.C.,Madan Mohan,Prem Sagar Verma
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Sri Suneel Kumar Rai, learned counsel for the petitioner, Sri Madan Mohan, learned counsel for contesting respondent Nos.6 and learned Standing Counsel for the State-respondents.

2. Brief facts of the case are that Khasara No.395 M measuring 1.06 hectare (2.68 acre) situated in Mauja Basai Sher Ghar, Bangar, Tehsil-Chhata, District-Mathura belong to one Munshi son of Ghanturi, who executed a registered sale deed on 21.11.1991 in favour of Basanta son of Bhajana. Another sale deed was executed by Basanta with respect to 0.82 acre in favour of Bhagwat son of Ghanturi and for 0.62 acre area sale deed was executed by Basanta in favour of Balram son of Maunsi. On 21.06.1993 Balram executed sale-deed in favour of respondent No.6 Basanta executed another sale deed on 07.02.1992 with respect to 0.62 acre area in favour of Harveer son of Munshi. On 07.05.1994 Mushi further executed sale deed with respect to 0.62 acre area in favour of one Bhanwar Singh and others who executed the sale deed in favour of respondent No.6 on 29.08.2000. Due to violation of Section-168-A of U.P.Z.A. & L. R. Act the mutation applied by respondent No.6 were rejected by Tehsildar vide order dated 30.06.2006. The revision filed by respondent No.6 against the order of Tahildar dated 30.06.2006 was dismissed by Additional Commissioner vide order dated 26.06.2008. Balram and others (Vendor of respondent NO.6 executed two sale deed in favour of petitioner's father on 23.07.2008 and 01.08.2008, the name of petitioner's father was accordingly mutated vide order dated 09.09.2008. Respondent No.6 filed an application to recall the order dated 09.09.2008 passed by the Tehsildar which was rejected vide order dated 09.06.2009 on the ground of pendency of writ petition No.47211 of 2008 Bhagwat versus State of U.P. And others, the order of status quo has been also passed by this Court in Writ Petition No.47211 of 2008. Respondent No.6 filed another mutation application dated 05.05.2010 on the basis of Government Notification dated 05.02.2010 by which bar of Section-168-A was lifted with condition of payment of Rs. 1000/- or 2% of the cost of the land whichever is higher accordingly Upziladhikar vide order dated 22.05.2010 ordered that if respondent No.6 will deposit Rs. 14420/- in treasury the sale-deed executed in his favour will become regular and legal.

3. Petitioners filed an application under Order 9 Rule 13 C.P.C. For recalling the ex parte order dated 22.05.2010 but the same was rejected vide order dated 04.04.2012 by Upziladhihar. Petitioners challenged the order dated 04.04.2012 through Revision before Board of Revenue which was dismissed in default on 16.11.2016 accordingly petitioners filed restoration application on 30.01.2017 which was dismissed by Board of Revenue vide order dated 04.08.2017 on the ground earlier passed on 30.11.2016 was on merit as such no interference was made against the order dated 30.11.2016 hence this writ petition.

4. This Court while entertaining the writ petition has passed the following orders dated 22.09.2017:-

"Heard learned counsel for the petitioner as well as learned Standing counsel appearing for the State respondents no. 1 to 5.

Issue notice to the respondents no. 6 to 10 fixing at an early date by registered post AD. Steps be taken within a week.

All the respondents are granted six weeks time to file counter affidavit. The petitioner shall have three weeks thereafter to file rejoinder affidavit.

List immediately thereafter. "

5. In pursuance of the order dated 22.09.2017 respondent No.6 has put in appearance and filed his counter affidavit to the writ petition. Petitioners have filed their rejoinder affidavit also.

6. Counsel for the petitioners submitted that amendment made in Section 168-A of U.P.Z.A.& L.R. Act in 2010 does not have any retrospective effect as such mutation of respondent No.6 cannot be allowed on the basis of sale deed executed in favour of respondent No.6 which was void according to Section 168-A of U.P.Z.A.& L.R. Act. He further submitted that sale deed prior to amendment of Section 168-A of U.P.Z.A.& L.R. Act were void and non existent coupled with the fact their mutation was also rejected as such the same cannot be validated through subsequent deposit. He further submitted that impugned order passed by respondent Nos.1 and 4 suffers from irregular exercise of jurisdiction as such are liable to be set aside. Counsel for the petitioner in support of his argument on the point of Section 168-A of U.P.Z.A.& L.R. Act has placed reliance upon two judgments which are as follows:

[1] 1991 (2) JT 75 = 1991 RD 184

Mithilesh Kumar Vs. Fateh Bahadur Singh

[II] 2000 (4) AWC 2891

Fateh Bahadur Singh Vs. Jang Bahadur Gupta and others

7. Counsel for the petitioner further submitted that suit No.84 of 2006 filed by respondent Nos. 7, 9 and 10 ( Harveer and two others) for declaration to declare the sale deed dated 21.12.1991, 08.05.1992, 21.06.1993, 07.05.1994 and 29.08.2000 in respect to Plot No. 395 M as void and ineffective is pending in Civil Court in which respondent no.6 (Bhagwat) and respondent no.8 (Balram) are defendant nos. 1 and 2, one Civil Suit No.120 of 2005 filed by respondent Nos.7, 9 and 10 for injunction in respect of disputed plot is also pending in civil court, as such impugned orders be set aside which shall be subject to decision of Civil Suit.

8. On the other hand Counsel for respondent No.6 submitted that in view of the Gazette Notification dated 05.04.2010 issued by the State of Uttar Pradesh the sale deed which became barred by the provisions of Section-168-A of U.P.Z.A.&L.R. Act has been validated on certain deposit within stipulated time as such the entire argument advanced by counsel for the petitioners is misconceived, the notification dated 05.04.2010 is the complete reply to the controversy involved in the matter. He further submitted that respondent No.6 complied the condition of government notification dated by depositing Rs.14,420/- (2% of the cost of the land) on 24.05.2010 as such the order dated 22.05.2010 was passed by Sub Divisional Officer for validating the sale deed in favour of respondent No.6. He further submitted that since Munshi had already transferred the entire land as such heirs of Munshi i.e. Respondent Nos.7 to 10 could not succeed any land of his father accordingly, respondent Nos. 7 to 10 had no right and title to transfer the disputed plot No. 395M to any person, the sale deed alleged to be executed on 23.07.2008 by respondent Nos.7 to 10 in favour of predecessor in interest of petitioners is null and void so they cannot acquire any title in the disputed plot. He further submitted that Writ Petition No.47211 of 2008 filed by respondent No.6 was dismissed as withdrawn by order dated 14.12.2018 due to validation of sale-deed executed in favour of respondent No.6 under Notification dated 05.04.2010 issued by State Government. Counsel for the respondent No.6 in support of his argument placed following judgments:-

(i) 2011 (4) ADJ 796 = 2011 (4) AWC 3366, Smt. Sumitra Devi vs. Sushila Devi and others

(ii) 2011 (114) R.D. 767, Deep Chand vs. Board of Revenue U.P. at Allahabad and others.

(iii) Second Appeal No.1138 of 2011, Vijai Bahadur vs. Lakshmi Devi, decided on 02.02.2012

9. I have considered the argument advanced by learned counsel for the parties and perused the record.

10. There is no dispute about the fact that three sale deeds were executed by Basanta, Balram and Bhanwar Singh in favour of respondent No.6 in respect to disputed plot No.395M total area 2.06 acre and remaining area of 0.62 acre was transferred in favour of Harveer. The sale deed executed in favour of respondent No.6 could not be included in the mutation proceedings in view of provisions contained under Section 168-A of U.P. Zamindari Abolition and Land Reforms Act but due to State Government Notification dated 05.04.2010 the sale deed became validated and the mutation of the petitioners has been ordered accordingly.

11. In order to appreciate the controversy involved in the instant writ petition, the perusal of the provision of Section 168-A of U.P.Z.A & L.R. Act before 23.08.2004 and after 23.08.2004 as well as Government Notification dated 05.04.2010 will be necessary which are as follows:

Before 23.08.2004:-

(1) "168-A. Transfer of fragments.-

(1) Notwithstanding the provisions of any law for the time being in force, no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenure-holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure-holder the whole or so much of the plot in which the person has bhumidhari rights, which pertains to the fragment is thereby transferred.

(2) The transfer of any land contrary to the provisions of sub-section (1) shall be void.

(3) When a bhumidhar has made any transfer in contravention of the provisions of sub-section (1) the provisions of Section 167 shall mutatis mutandis, apply."

Since 23.08.2004:-

(2) "Section 168-A: Prevention of Fragmentation" "omitted"

168-A Transfer of fragments- Statutory Amendments

Section 168-A was inserted by U.P. Act 18 of 1956. But it was omitted by U.P. Act 27 of 2004 with effect from 23 August, 2004. Before its deletion, Section 168 -A stood as under:

(1) Notwithstanding the provisions of any law for the time being in force, no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenure-holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure-holder the whole or so much of the plot in which the person has bhumidhari rights, which pertains to the fragment is thereby transferred.

(2) The transfer of any land contrary to the provisions of sub-section (1) shall be void.

(3) When a bhumidhar has made any transfer in contravention of the provisions of sub-section (1) the provisions of Section 167 shall mutatis mutandis, apply.".

"सरकारी गजट, उत्तर प्रदेश

उत्तर प्रदेशीय सरकार द्वारा प्रकाशित

असाधारण

विधायी परिशिष्ट

भाग-4 खण्ड (ख)

(परिनियत आदेश)

(लखनऊ, सोमवार, 05 अप्रैल, 2010)

चैत्र 15, 1932 शक सम्वत

उत्तर प्रदेश सरकार

राजस्व अनुभाग-1

संख्या .........

लखनऊ अप्रैल 2010

अधिसूचना

प0अ0-19... ............

"उत्तर प्रदेश जमीदारी विनाश और भूमि व्यवस्था (विशेष उपबन्ध) अधिनियम, 2010 (उत्तर प्रदेश अधिनियम संख्या 4 सन् 2010) की धारा 2 के अधीन शक्ति का प्रयोग करके राज्यपाल अधिसूचित करते हैं कि किसी टुकड़े के किसी अंतरण जो उत्तर प्रदेश जमीदारी विनाश और भूमि व्यवस्था अधिनियम, 1950 (उत्तर प्रदेश अधिनियम संख्या 1 सन् 1951) की धारा 168-क जैसा कि वह उत्तर प्रदेश जमींदारी विनाश और भूमि व्यवस्था (संशोधन) अधिनियम, 2004 (उत्तर प्रदेश अधिनियम संख्या 27 सन् 2004) के प्रारम्भ के पूर्व विद्यमान थी, के अधीन शून्य हो गया था और जिसकी राज्य सरकार के पक्ष में राजस्व अभिलेखों में प्रविष्टि नहीं की गयी थी, निर्विहित समझा जाएगा, के विधिमान्यकरण के लिए एक हजार रुपये या भूमि के मूल्य का 2 प्रतिशत, जो भी अधिक हो, होगी जो लेखा शीर्षक "0029 भू-राजस्व- 800 - अन्य प्राप्तियां- 08- मालिकाना राजस्व- 0806 प्रकीर्ण प्राप्तियों के अधीन जमा की जायेगी। विधिमान्यकरण हेतु आवेदन पत्र इस अधिसूचना के गजट में प्रकाशित होने के दिनांक से छ: माह के भीतर परगना के प्रभारी असिस्टेन्ट कलेक्टर के समक्ष प्रस्तुत किया जायेगा। भूमि वो मूल्य का होगा जो कलेक्टर द्वारा स्टाम्प शुल्क के लिए अवधारित किया गया है और ऐसे आवेदन ........... को लागू हो।

आज्ञा से

शम्भु नाथ शुक्ला

"In Pursuance of the provision of clause (3) of Article 348 of the Constitution the Governor is pleased to order the publication of the following English translation of notification no. 605/1.1 2010-12(7)2003-31. dated April 05, 2010 for general information.

No. 605/1-1-2010-12(7)2003-31

Dated Lucknow April 05, 2010

In exercise of the powers under section 2 of the Uttar Pradesh Zamidari Abolition and Land Reforms (Special Provision) Act 2010 (U.P. Act no. IV of 2010) the Governor is pleased to apply that the fee for validation of any transfer of a fragment which had become void under section 168-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1950 (U.P. Act no. 1 of 1951) as it stood before the commencement of the Uttar Pradesh Zamindari Abolition and land Reforms (Amendment) Act. 2004 (U.P. Act no. XXVII of 2004) and had not been entered in revenue records in favour of the State Government shall be deemed to have been divested shall be rupees one thousand or two percent of the cost of the land whichever is higher to be deposited under the head "0029 BHU-RAJASVA-800-ANYA PARPTIYA-08-MALIKANA RAJASVA-0806 PRAKIRN PRAPTIYA" An application for validation shall be submitted before the Assistant Collector In-Charge of sub-division with in six months from the date of publication of this notification in the Gazette. The cost of the land shall be such as determined by the collector for the Stamp Duty and applicable on the date of such application"

12. From the provisions quoted above it is established that the provisions of Section 168-A of U.P.Z.A. & L.R. Act has been omitted by U.P. Act No.27 of 2004 with effect from 23.08.2004 and the notification of the State Government issued on 05.04.2010 has validated the sale-deed which were barred by Section 168-A of the U.P.Z.A. & L.R. Act on certain terms and conditions.

13. Respondent No.6 in compliance of Government Notification dated 05.04.2010 deposited Rs.14,420/- on 05.05.2010 which is 2% of the cost of the land in dispute within time period of six month. Accordingly, mutation was also ordered in favour of petitioners and restoration application as well as revision filed by petitioners were dismissed in accordance with law.

14. The judgment cited by counsel for the respondent No.6 are applicable in the present controversy. Paragraph Nos.4 and 7 of the judgment rendered in Smt. Sumitra Devi (supra) will be relevant which is as follows:-

"4. I fully agree with the contention of the learned Counsel for the petitioner that after dismissal of the civil suit and appeal, it was not permissible for Additional Collector or the revisional authority/Court to take a contrary view and it was an abuse of process of Court by respondent No. 2 to approach them. Moreover as held by the Appellate Court/A.D.J. plea of sale-deed being hit by section 168-A of the Act under the facts and circumstances of the case, could be raised only by the State or Gaon sabha and respondent No. 2 had absolutely no locus standi to agitate the matter. The sale-deed was executed by respondent No. 5 in favour of petitioner and both of them were fully satisfied and the Gaon Sabha or the State Government had not challenged the same. In the scenario, no other person had any authority to agitate the matter.

7. Moreover provisions of section 168-A were quite harsh. The section has also been deleted. U.P. Act No. 27 of 2004 which deleted section 168-A made the previous transactions hit by the said section voidable (in stead of void) and curable (capable of being validated) on payment of some nominal fees within a particular period which has now expired (Section 11). Accordingly, for these two reasons the section shall be interpreted (for the sake of past transactions) liberally, in favour of vendor and vendee."

15. Another judgment Deep Chand (supra) cited by learned counsel for the respondent No.6 is also relevant. Paragraph Nos.6, 7 & 8 of the judgment rendered in Deep Chand (supra) are as follows:-

"6. Learned counsel for the respondent no. 4, Sri Gupta submits that the answering respondent had his adjoining Chak over Khasra No. 518 belonging to him and his brother Murli and accordingly the petitioner vide sale dated 8.10.1985 transferred fifteen Biswas of land out of Chak No. 521 to the father of the answering respondent. The petitioner never challenged the execution of the sale deed. On the contrary, the petitioner turned dishonest and he moved an application that the proceedings should be initiated as the transfer amounted to a transfer of a fragment of land, hence was invalid. On coming to know about the same, the answering respondent moved before the Additional Collector and orders were passed. Accordingly, the name of the father of the answering respondent was also mutated on 18.8.1987 and while passing the order dated 9th July, 1987, there was full compliance of the principles of natural justice. It is only the dishonest intention of the petitioner which was reflected in the proceedings that were sought to be pursued by him. Even otherwise, assuming if the land was a fragment then too it would vest in the State and petitioner would not gain anything to the contrary. It has also been submitted that as a matter of fact, the State Government has issued Notifications that in case, there is a fragmentation then the same can be regularized by making certain deposits and, therefore, the sale deed would not be void.

7. Having heard learned counsel for the parties and having perused the counter and rejoinder affidavits, it is evident that the rights of the petitioner stood extinguished with the execution of the sale deed. The petitioner had never challenged the sale deed, as such it appears that the petitioner has somehow the other tried to cause damage to the answering respondent for no valid reason. The petitioner would not stand to gain anything except causing sheer harassment to the respondent no. 4. The contention of the respondent that the petitioner would not stand to gain anything appears to be correct.

8. In view of the fact that the petitioner has been unable to make out any case for interference in view of the facts that have been brought on record and the findings recorded by the authorities, I am not inclined to interfere in the exercise of jurisdiction under Article 226 of the Constitution of India. The writ petition lacks merit and it is accordingly dismissed. Interim order granted earlier stands discharged."

16. The judgment cited by learned counsel for the petitioners are not applicable in the present controversy as both the judgment are of year 1991 & 2000 while the Section 168-A of U.P.Z.A. & L.R. Act has been omitted by U.P. Act No.27 of 2004 w.e.f. 23.08.2004 and State Government notification for validation of sale deed which was hit by Section 168-A of U.P.Z.A. & L.R. Act came into force on 05.04.2010.

17. It is also material that Civil Suit No.4 of 2006 has been filed by respondent Nos.7, 9 and 10 (vendor of petitioners) to declare the sale-deed of respondent No.6 as illegal, void and ineffective which is pending for adjudication before civil court.

18. Considering the entire facts and circumstances of the case as well as ratio of law laid down by this Court in Smt. Sumitra Devi (supra) and Deep Chand (supra) coupled with the provisions of validation of sale-deed in view of Government notification dated 05.04.2010, no interference is required against the impugned orders.

19. The writ petition is devoid of merit and the same is accordingly dismissed.

20. No order as to cost.

Order Date :- 23.12.2022

PS*