Smt. Shakuntala Devi vs State Of U.P. And Others
2023 Latest Caselaw 7434 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 9
 

 
Case :- WRIT - C No. - 20092 of 2004
 

 
Petitioner :- Smt. Shakuntala Devi
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- K.R. Sirohi,Harish Yadav,Narayan Dutt Shukla,Satyendra Kumar Pandey,Yogesh Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Satyendra Kumar Pandey, Advocate, holding brief of Sri Harish Yadav, learned counsel for the petitioner and learned Standing Counsel for the State.

2. This writ petition is directed against the order dated 16.03.2001 and 26.03.2004 passed by the respondent nos. 2 and 3 in proceedings under Sections 166/167 of the U.P.Z.A. & L.R. Act, 1950 (hereinafter referred as the 'Act') declaring the transfer made in favour of the petitioner to be void under the provisions of Section 168-A of the Act holding it to be a transfer of fragments.

3. The case, in nutshell, is that one Smt. Kiran Kaur, the vendor, who was recorded co-tenure holder alongwith one Charan Kaur and Chandrawati of Khasra Plot No. 102 measuring 0.8977 hectare situated in Village Shikhera, Pargana Baran, Tehsil & District Bulandsahar. The vendor executed a registered sale-deed in favour of petitioner on 17.01.2000 of her share. The Additional Collector (Finance & Revenue) issued a notice to the petitioner stating that the transfer, so made, was in contravention of Section 168-A of the Act and, thus, the land would vests in the State. The petitioner got another sale-deed executed for the remaining area in her favour by Kiran Kaur on 09.06.2000 and the entire share of Kiran Kaur was transferred to the petitioner and she became the co-tenure holder alongwith other two. An objection was filed by the petitioner on 03.07.2000 which was rejected and on 16.03.2001 the respondent no. 2/Collector passed an order holding that the sale-deed executed on 17.01.2000 violated the terms of the provisions of Section 168-A of the Act and the land would vests in the State Government. Aggrieved by the said order, a revision was preferred before the respondent no. 3, which was also rejected vide order dated 26.03.2004. Hence, this writ petition.

4. Learned counsel for the petitioner submitted that petitioner is an illiterate person and was not aware of the provisions of the Act and had bought the entire share of Kiran Kaur and had become the co-tenure holder with Charan Kaur and Chandrawati. According to him there was no transfer of fragment piece of land and in fact the entire area of the co-tenure holder Kiran Kaur was transferred by the sale-deed in favour of petitioner. He then contended that as the entire share had been purchased, the finding recorded by the Collector as to fragmentation and attracting Section 168-A does not arise.

5. Reliance has been placed upon decision of coordinate Bench of this Court in Writ-B No. 17845 of 1995 (Mahesh Chand and another Vs. Board of Revenue and others) decided on 19.04.2019 and another order of coordinate Bench of this Court passed in Writ-C No. 57275 of 2007 (Bheem Singh Vs. State of U.P. and others) decided on 06.05.2019.

6. Opposing the writ petition, learned Standing Counsel has submitted that the share of Kiran Kaur had been purchased by the petitioner through two sale-deeds and the sale-deed dated 17.01.2000 was for the part of the share of Kiran Kaur and, thus, the transfer, so made, is hit by Section 168-A as through the said sale-deed the entire share of Kiran Kaur was not transferred and only fragment of land was transferred. He then contended that once the finding has been recorded by both the authorities that the transfer was of fragment, the consequence which flows is that such transfers are void and the land vests in the State Government.

7. I have heard respective counsel for the parties and perused the material on record.

8. The facts which is admitted to both the parties are that Kiran Kaur, the vendor, was co-tenure holder alongwith Charan Kaur and Chandrawati of Plot No. 102 measuring 0.8977 hectare. Through sale-deed 17.01.2000 Kiran Kaur one of the co-tenure holder had transferred her part of the share to the petitioner. It was only after the issuance of notice that discrepancy was found and immediately the remaining part of the land coming in the share of Kiran Kaur was transferred through sale-deed dated 09.06.2000 in favour of petitioner and she became the co-tenure holder alongwith other two of Khasra Plot No. 102.

9. The question which arises for consideration is whether any land which has been transferred in fragment and is less than the area mentioned in Section 3 (8-A) of the Act would attract the provisions of Section 168-A, though by the subsequent transfer the entire share has been transferred in favour of the vendee by the vendor.

10. Before proceeding to decide the issue it is necessary to place on record that Section 168-A was inserted by U.P. Act No. 18 of 1956 with the object to check the creation of fragmented and uneconomic holdings in the areas where consolidation operation had concluded. Later on it was found that the prohibition contained in the said provision was adversely affecting the interest of tenure holders. In order to provide relief to the farmers the provisions of Section 168-A was omitted by U.P. Act No. 27 of 2004 w.e.f. 23.08.2004.

11. Section 168-A provided that any transfer made in contravention was void. However, Section 11 of U.P. Act No. 27 of 2004 provided special provisions and it was declared that any transfer of a fragment which had become void under Section 168-A as it stood before commencement of the Act shall be deemed to have been voidable and any person may get such transfer validated by depositing such fee and within such time and in such manner as may be notified by the State Government.

12. This special provision was only for a period of one year from the date of commencement of the U.P. Act No. 27 of 2004. However, it remained in force up to 29.03.2005 when it was omitted by Section 4 (2) of U.P. Act No. 13 of 2005. During the period of enforcement of Section 11 no notification was issued by the State Government. By Section 4 (1) of U.P. Act No. 13 of 2005 another special provision was added, whereby it was provided that any transfer which has been declared void under Section 168-A before the commencement of U.P. Act No. 27 of 2004 and not having been entered in revenue records in favour of the State Government shall be deemed to have been voidable and any person may get such transfer validated by depositing such fee and within such time and in such manner as may be notified by the State Government. This provision was to remain in force for one year.

13. The State Government exercising power conferred by Section 4 (1) of U.P. Act No. 13 of 2005 issued a notification for validating the transfers which were declared void under Section 168-A as it existed before its deletion by U.P. Act No. 27 of 2004.

14. According to the said notification the fee for validation of any transfer of a fragment was fixed at Rs. 500/- or 1% of the cost of land whichever was higher to be deposited under the heading provided in the notification dated 13.06.2005. An application for validation was to be submitted before the Assistant Collector, In-charge of sub division, within six months from this notification.

15. Thus, it transpires from the above that Section 168-A which was inserted in the year 1956 for prevention of fragmentation stood omitted in the year 2004 when it was found that such prohibition was adversely affecting the interest of tenure holders.

16. The State Government while omitting the said provision had given a leeway to those persons who were affected by the transfer made in violation of Section 168-A to get it validated, and special provisions were made in U.P. Act No. 27 of 2004 and, thereafter, in U.P. Act No. 13 of 2005. Subsequently, on 13.06.2005 the State Government issued a notification notifying the fee for validation of any transfer of fragment and an application was to be moved before the Assistant Collector for getting the transfer validated.

17. Thus, it can safely be said that the intention of Legislature was never to take back the land of the tenure holder and vest it in the State but was only to prevent the fragmentation of the consolidated area and the transfers made during the subsistence of Section 168-A of fragment piece of land was subsequently validated after the provision was omitted in the year 2004.

18. In Goverdhan Singh and others Vs. Board of Revenue and others, MANU/UP/0914/1991 coordinate Bench of this Court had the occasion to consider that matter wherein part of the share of a tenure holder was transferred to a vendee and question arose as to whether such transfer was hit by the provision of Section 168-A, the Court found that it was a transfer for a specified share of a tenure holder which would not attract the provisions of Section 168-A as there is no fragment.

19. However, in the instant case the vendor Kiran Kaur who was co-tenure holder had transferred her part of share through sale-deed dated 17.01.2000 and subsequently on 09.06.2000 before passing of the order by the respondent no. 2, transferred her entire share to the petitioner which cannot be termed as 'fragmentation'.

20. The argument of learned Standing Counsel finds support to some extent from the judgment of coordinate Bench of this Court in case of Bheem Singh (Supra) wherein the Court held that the land purchased subsequently would not help the vendor and vendee to complete the shortfall in land.

21. However, in the instant case from perusal of the sale-deed it is clear that Kiran Kaur had transferred her share to the petitioner on 17.01.2000. It was only on the discovery that the entire share was not transferred, the subsequent sale-deed was executed on 09.06.2000 prior to the passing of the order under Sections 166/167. Petitioner had become the co-tenure holder after she had purchased the entire share of Kiran Kaur.

22. During pendency of the writ petition Section 168-A was omitted, thus, looking from that angle and the special provisions made in Section 11 of U.P. Act No. 27 of 2004 and, thereafter, in U.P. Act No. 13 of 2005, it is clear that the intention of State Government was never to take the land of any tenure holder in case of shortfall in transfer of the same, holding it to be fragment.

23. Moreover, the notification dated 13.06.2005 had provided opportunity to all those vendees for getting the transfers validated which had taken place during the subsistence of Section 168-A of the Act. As petitioner has been litigating before this Court and writ petition was pending, the necessary application was not moved for getting the said benefit. As the provisions of Section 11 of U.P. Act No. 27 of 2004 and Section 4 (1) of U.P. Act No. 13 of 2005 is a beneficial legislation and notification dated 13.06.2005 also provides relief to those transfers made during the existence of Section 168-A, petitioner in such circumstances is entitled for relief as she had purchased the entire share from the co-tenure holder Kiran Kaur through two sale-deeds.

24. Considering the facts and circumstances of the case, this Court finds that the order dated 16.03.2001 and 26.03.2004 passed by the respondent nos. 2 and 3 in proceedings under Sections 166/167 of the U.P.Z.A. & L.R. Act, 1950 are unsustainable in the eyes of law and same are hereby quashed.

25. In view of the above, the question, framed above, stands answered.

26. Writ petition succeeds and is hereby allowed.

Order Date :- 15.3.2023

Shekhar