Smt. Somwati vs State Of U.P. And 4 Others
2023 Latest Caselaw 20373 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:155360
 
Court No. - 51
 

 
Case :- WRIT - C No. - 11168 of 2023
 
Petitioner :- Smt. Somwati
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Prashant Yadav,Rajeev Kumar
 
Counsel for Respondent :- C.S.C.,Krishna Kant Singh
 

 
Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Rajeev Kumar, learned counsel for the petitioner, Shri Abhisekh Shukla learned Additional Chief Standing Counsel for the State-respondent and Shri Krishna Kant Singh, learned counsel for the respondent- Goan Shabha.

2. Brief facts of the case are that one Smt. Mittha Devi @ Mithula Devi wife of Salik Ram was the owner of plot No.944/15 area 0.405 hectare and Parsadi son of Badale was owner of plot No.944/13 area 0.405 hectare, who belongs to scheduled caste community. The aforementioned plots are situated at village Vasundhara, Pargana Marhara, Thesil and District Etah. Petitioner is the daughter of Prasadi. Smt. Mittha Devi had executed a registered will deed on 21.1.2000 in respect to his share of the plot in dispute in favour of respondent no.6-Jaydan Singh, whose name was also mutated in the revenue records on the basis of aformentioned will deed vide order dated 30.8.2010. A restoration application was filed by Suresh Chandra on17.5.2016 along with delay condonation against the order dated 30.8.2010 in respect to the aforementioned will deed dated 21.1.2000 with the allegation that execution of the will deed by Mittha Devi @ Mithula Devi in favour of Jaydan Singh, who belong to Other Backward Caste Community, is in violation of the provisions contained under the U.P.Z.A. & L.R. Act/U.P. Revenue Code, 2006, as such, land in dispute is liable to be vested in the State. Tehsildar vide order dated 31.7.2017, allowed the restoration application dated 17.5.2016 as well as condoned the delay and set aside the order of mutation passed in favour of respondent no.6 and referred the matter for vesting the plot in dispute in favour of the State. On the basis of the order dated 31.7.2017 the case was registered as Case No. 1548/2017 under section 104/105 of U.P. Revenue Code before Collector. One civil suit for cancellation of the will deed dated 21.1.2000 was filed by the petitioner being Suit No.60/2019, impleading the respondent no.6 as sole defendant and the aforementioned suit was decreed by judgment and decree dated 29.1.2021 on the basis of compromise to the effect that will deed executed on 21.1.2000 is cancelled. Petitioner filed an impleadment application on 23.9.2019 in the aforementioned Case No.1548/2017 under section 104/105 of U.P. Revenue Code,2006, stating that she has interest in the plot in dispute, but without opportunity of hearing, the order has been passed. The copy of the judgement and decree dated 29.1.2021 passed in Civil Suit No. 60/2019 was also filed in the case. The Additional Collector rejected the impledment application filed by the petitioner vide order dated 1.9.2021. Being aggrieved therefrom, petitioner filed revision which was dismissed vide order dated 24.8.2022. Upzila Adhikari vide final order dated 8.12.2022 ordered to expunge the name of respondent no.6 and record the name of state government hence this petition for quashing the order dated 24.8.2022, passed by the Commissioner, Aligarh Division, Aligarh in Revision No.761 of 2022 and order dated 1.9.2021 passed by the Addition District Magistrate, Etah in Suit No. 1548 of 2017 as well as order dated 8.12.2022, passed by Upzila Adhikari Etah.

3. Counsel for the petitioner submitted that in respect to will deed in question, the civil suit filed by the petitioner against respondent no.6, has been decreed on the basis of compromise and the will deed in question has been cancelled vide judgment and decree dated 29.1.2021, hence, the order passed, vesting the plot in dispute in State Government should be set aside. It is further submitted that decree of the civil court cannot be nullified and the impugned order, vesting the land in the State Government is illegal. He further submitted that final order dated 8.12.2022 has been passed without affording opportunity of hearing to the petitioner. He further submitted that this Court in the case of Deep Narayan Prasad Vs. Board of Revenue and others Writ-B No.921 of 2020 decided on 13.01.2023 has held that decree of Civil Court even passed on the basis of compromise cannot be ignored.

4. On the other hand, learned Addl. C.S.C. submitted that the will deed was executed in violation of the provisions contained under Section 169(2A) as well as Section 157-A of the U.P.Z.A. & L.R. Act, as such, there is no illegality in the impugned orders, vesting the land in the State Government. He further submitted that the suit filed by the petitioner against respondent no.6 only in the year 2019, was a collusive suit. He also submitted that the judgment and decree passed between the two private parties will not have a binding effect in respect to the proceeding under sections 157A, 164, 167 & 169(2A) read with section 104/105 of U.P. Revenue Code,2006. He also submitted that the will deed was executed in violation of the mandatory provisions of the Act and the Rules framed thereunder, as such, no right will accrue to the petitioner.

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

6. There is no dispute about the fact that the will deed was executed by father of the petitioner, being a Scheduled Caste, in favour of respondent no.6, belonging to Other Backward Caste, as such, will deed was in violation of the provisions contained under the Act. There is also no dispute about the fact that the plot in dispute has vested in the State and the application filed by the petitioner, bringing on record the decree of the civil court, passed in the year 2019, has been found collusive and the application of the petitioner has been rejected.

7. In order to appreciate the controversy involved in the matter, perusal of Sections 157-A,166,167 and 169(2A) of the U.P.Z.A. & L.R. Act will be relevant, which are quoted hereunder:-

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

(1) Without prejudice to the restrictions contained in Sections 153 to 157, no bhumidhar or asami belonging to a Scheduled Caste 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 transfer 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.]

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.]

[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 movable 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.]

169. Bequest by a bhumidhar.-

[(2A) in relation to a [bhumidhar with transferable rights] belonging to a scheduled Caste or Schedule Tribe, the provisions of [sections 157-A and 157-B] shall apply to the making of bequests as they apply to transfer during lifetime.]"

8. Under the U.P. Revenue Code, 2006 the provision relating to transfer by member of S.C. and S.T. are contained under sections- 98,99,104,105,& 107(2) which is as follows:-

"98. Restrictions on transfer by Bhumidhars belonging to a scheduled caste.-

[(1) Without prejudice to the provisions of this Chapter, no bhumidhar belonging to a scheduled caste shall have the right to transfer, by way of sale, gift, mortgage or lease any land to a person not belonging to a scheduled caste, except with the previous permission of the Collector in writing:

Provided that the permission by the Collector may be granted only when?

(a) the bhumidhar belonging to a scheduled caste has no surviving heir specified in clause (a) of sub-section (2) of Section 108 or clause (a) of Section 110, as the case may be; or

(b) the bhumidhar belonging to a scheduled caste has settled or is ordinarily residing in the district other than that in which the land proposed to be transferred is situate or in any other State for the purpose of any service or any trade, occupation, profession or business; or

(c) the Collector is, for the reasons prescribed, satisfied that it is necessary to grant the permission for transfer of land.

(2) For the purposes of granting permission under this section the Collector may make such inquiry as may be prescribed.]

99. Restrictions on transfer by Bhumidhars of Scheduled Tribes.-

Without prejudice to the provisions of this chapter, no bhumidhar belonging to a scheduled tribe shall have the right to transfer, by way of sale, gift, mortgage or lease any land to a person not belonging to a scheduled tribe.

[104. Every Lease or transfer of interest in any holding or part thereof made by a bhumidhar or any asami in contravention of the provisions of this Code shall be void.]

105. Consequences of transfer by Bhumidhar in contravention of the code.-

(1) Where transfer of interest in any holding or part made by a bhumidhar is void under Section 104, the following consequences shall, with effect from the date of such transfer, ensue, namely?

(a) the subject matter of such transfer shall vest in the State Government free from all encumbrances;

(b) the trees, crops, wells and other improvements; existing on such holding or part shall vest in the State Government free from all encumbrances;

(c) the interests of the transferor and the transferee in the properties specified in clauses (a) and (b) shall stand extinguished;

(d) the extinction of interest of the transferor under clause (c) shall operate to extinguish the interest of any asami holding under him.

[(e) the provisions of this section shall not apply to any lease made under Section 94.]

(2) Where any land or other property has vested in the State Government under sub-section (1) it shall be la"wful for the Collector to take over possession of such land and other property, and to direct that any person occupying such land or property be evicted therefrom, and for that purpose, the Collector may use or cause to be used such force as may be necessary and the provisions of Section 59 mutatis mutandis shall apply to such property.

107. Bequest by Bhumidhar or Asami.-

(2) In relation to a bhumidhar with transferable rights belonging to a scheduled caste or scheduled tribe, the provisions of Sections 98 and 99 shall apply to the making of bequests as they apply to transfer during life time."

9. Perusal of the aforesaid provisions clearly demonstrates that will deed by the persons belonging to the Scheduled Caste, cannot be executed to the persons belonging to the Other Backward Caste except with the previous approval of the Collector.

10. In the instant petition, the plot in dispute has been vested in the State Government due to violation of the mandatory provision contained under section 157A of U.P.Z.A. & L.R. Act and a civil suit has been filed in the year 2019, at the instance of the petitioner impleading respondent no.6 as the sole defendant. The civil suit has been decided on the basis of compromise for cancelling the will deed in question which is nothing but in order to make defence in the proceeding which has already been concluded in accordance with law.

11.The finding of fact recorded by respondent no.3 while passing the impugned order dated 8.12.2022 runs as follows:-

???????? ?? ???????? ??? ????? ?? ?????? ???? ?????? 22 ??? ?????? ??? ??? ?????? 60/2019 ??????? ?????? ???? ????? ??? ??? ????? ???? ?????? 29.01.2021 ?? ????????????? ?? ????? ?? ????? ?????? ???????? ????? ?????? 21.01.2000 ??? ????????? ?????? ????? ???????? ?? ???? ??????? ???? ?? ???? ????? ???? ??? ?? ?? ?? ???????? ???????? ?? ????? ???? ???? ??? ?? ?? ?? ???????? ???????? ?? ????? ???? ???? ??? ?? ?????? ???? ???? ?? ?????? ?? ??? ?????? ???? ?? ?? ???? ???????? ????????? ?????? ???????? ????? ?????? 21.01.2000 ?????? ???? ???? ???? ????? ???? ??? ??? ???????? ?? ???? ??????? ???? ??? ?? ?????? ??? ?? ???????? ???? ??? ?? ?? ?? ?????? ???? ????????? ?? ???? ???? ????? ???? ????? ???? ?? ???? ???? ????? ??????? ??? ???? 2019 ??? ???????? ???? ???? ?? ????? ?? ?????????????? ????? ??????? ?? ???? 169 (2?), 157? ? 166, 167 ?? ?????? ??? ????? ?? ?????? 21.01.2000 ?? ?? ????? ????? ??? ????? ?? ???? ??? ????? ????? ?? ???? ??? ??? ???? ? ???? ?? ???? ???? ?????? ?? ??? ?????? ????? ????? ???? ???????? ????????? ?? ???? ?? ?? ? ?? ???? ?????? ????? ????? ?? ????????? ???

??????? ??????? ?? ??? ?? ???????? ?? ??????? ??? ?? ???????? ???? ???? ?????? 944/15 ???? 0.405??? ?? ???????? ????? ???? ????? ????? ???????? ???? ???? ?? ?? ????? ?????? ???? ??? ?????? ????????????? ????? ??????? ?? ???? 169 (2?) ?? ??????????? ?? ?????? ????-157 ?? ???????? ???? ??????? ???? ???? ???? ?? ????? ?????? 21.01.2000 ????? ????? ?????????? ???? ???? ?????? ???? ?? ?? ??? ????????? ?? ??? ?? ?? ???? ???????? ???? ????-166, 167 ?? ?????? ??? ????? ?? ?????? 21.02.2000 ?? ????? ?? ????? ????? ??? ????? ???? ??????? ??????? ?? ?????? ???????? ???? ????? ??? ???????? ??? ?????? ???? ?????? 31.07.2017 ?? ?? ??? ???????? ??????? ???? ???? ????? ???

????

??? ??????? ???? ???? ??? ???????? ???? ???? ?????? 944/15 ???? 0.405 ??? ????? ????? ???????? ????? ?????? ????? ? ???? ??? ????? ?????? ????? ???? ????? ????? ??? ????? ????? ?????????? ?????? 21.01.2000 ?? ????? ????? ??? ????? ?????? ?? ??? ? ??? ?? ????? ????? ?? ???? ??? ???????? ???? ???? ?? ????? ??? ????? ????? ?????????? ??? ???? ?????? ???? ????? ?? ??? ????? ?? ????? ????? ?? ??? ????? ???? ???? ???? ?????? ???????? ???? ??? ?? ???????? ??? ??? ????? ???? ?? ??????? ??????????????? ???????? ?? ???? 103 ?? ??????-6 ?? ???????? ??????? ??????? ???? ?? ????????? ??? ??? ???? ????

??????- 08.12.2022 ?? ???

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12. The finding of fact recorded by Up Zila Adhikari, Etah fully demonstrate that the will deed was executed against the provisions of the Act and Rules framed thereunder.

13. The case law cited by learned Counsel for the petitioner will not be applicable in the instant case as in Deep Narayan Prasad (Supra) this Court has held that decree of Civil Court passed on the basis of compromise cannot be ignored by mutation court in exercise of summary jurisdiction under Section-34 of U.P. Land Revenue Act, while the present dispute relates to proceeding under Section-157-A of U.P.Z.A. & L. R. Act which is entirely different to proceeding under Section 34 of U.P. Land revenue Act.

14. Considering the entire facts and circumstances as well as in the light of the provisions contained under the Act and the Rules framed thereunder, no interference is required against the impugned orders.

15. The writ petition is dismissed.

Order Date :- 3.8.2023

PS*