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2013 DIGILAW 333 (UTT)

SUSHIL KUMAR v. COMMISSIONER GARHWAL MANDAL PAURI

2013-06-17

B.S.Verma

body2013
JUDGMENT Hon’ble B.S. Verma, J. (Oral) Heard on restoration application No. 275/2013. This application has been moved to recall the order dated 15.5.2013 passed by this Court, whereby the writ petition has been dismissed for want of prosecution. The reasons shown in the accompanying affidavit are sufficient to recall the order. The restoration application is allowed. The order dated 15.5.2013 is recalled and the writ petition is restored to its original number. 2. The writ petition is also heard on merit. 3. By means of this petition the petitioner has sought a writ in the nature of certiorari for quashing the order dated 26-10-2006 passed by Assistant Collector 1st class/S.D.O. Dehradun and judgment and order dated 9-9-2009, passed by Commissioner Garhwal Mandal Pauri (Annexure Nos. 4 and 6 to the writ petition). 4. Vide order dated 26-10-2006 the learned Assistant Collector 1st class/S.D.O.(Sadar), Dehradun ordered to vest the land in State on the ground that the transfer was made by the seller-respondent No.4 in contravention of provision of Section 166 of the U.P. Z.A. and L.R. Act and therefore the land has vested in the State U/S 167 of the Act. Vide order dated 9-9-2009 the revision preferred by the petitioners was dismissed by the Commissioner Garhwal Mandal Pauri. 5. Briefly stated the facts of the case giving rise to this writ petition are that one Smt. Chameli Devi-respondent No.4 was recorded Bhumidhar with transferable rights of land in question. She had executed sale-deed in favour of the petitioners on 13-2-1990, Annexure No.1 to the writ petition, whereby the land in dispute was transferred to the petitioners. This fact is not disputed. After execution of the sale-deed this fact came to the notice of State authorities that vendor –respondent No.4 belongs to Scheduled Caste and no permission has been obtained from the Collector U/S 157-A of the Act for the said transfer of land. Therefore the land was vested in the State Government by the impugned order. Show cause notice was also issued to the petitioners as well as the respondent No.4 and the respondent No.4 had also filed objection against the show cause notice. 6. Therefore the land was vested in the State Government by the impugned order. Show cause notice was also issued to the petitioners as well as the respondent No.4 and the respondent No.4 had also filed objection against the show cause notice. 6. It is pleaded in the writ petition that the land in question is situated within the area of Nagar Nigam and was recorded as property No. 56/1 Lakhi Bagh, Dehradun and was subject to assessment therefore it cannot be treated the agricultural land and the land is being used for storing and sale of timbers. The land was got mutated in favour of petitioners in the revenue record and in the Nagar Nigam and permission for sale was obtained from Prescribed Authority under Section 26 of Urban Land Ceiling Act before executing the sale deed. 7. The writ petition has been contested by filing counter affidavits. Along with counter affidavit filed by respondents 1 to 3, copy of Khautani has also been filed wherein the land in 1410-1415 Fasli was recorded Bhumidhari land with transferable rights. 8. The respondent No.4 also filed the counter affidavit and it was stated in the counter affidavit that she belongs to Scheduled Caste category. 9. The rejoinder affidavit has also been filed in reply to counter affidavits filed by the State and the respondent No.4 and the assertion made in the counter affidavit have been reiterated. Along with rejoinder affidavit, the petitioners have annexed the copy of the Khautani, wherein it is mentioned that the land has been vested in Nagar Nigam and assessment is made by Nagar Nigam. 10. The only question to be decided in this case is- ‘whether the transfer which was made in favour of the petitioners by way sale deed dated 13-2-1990, has been made in contravention of Section –166 of U.P.Z.A. and L.R. Act.’ 11. This fact is not disputed to any of the party that at the time of transfer on 13.2.1990, the land was recorded in the name of respondent No.4 as Bhumidhari land with transferable rights. It is also mentioned in the said sale-deed that the land of Khasra No. 211 area 0.09 acre situated in village Dehrakhaas Pargana Central Doon District Dehradun is being transferred to the petitioners. It is also mentioned in the said sale-deed that the land of Khasra No. 211 area 0.09 acre situated in village Dehrakhaas Pargana Central Doon District Dehradun is being transferred to the petitioners. This fact is also mentioned in the internal page-2 of the sale deed that the vendor does not belong to S.C. or S.T. category and permission has been sought U/S 26 of Urban Land Ceiling Act 1976 on 21.1.1990. 12. To decide the controversy, it is necessary to quote the provisions of Sections 166 and 176 of the U.P. Z.A. and L.R. Act, which read as under:- “166. Every transfer made in contravention of the provisions of this Act, shall be void.’ “167- (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; and (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 unauthorized occupants, the Collector may use or cause to be used such force as may be necessary.” 13. In addition to Sections 166 and 167, Section 157-A of the Act is also necessary to be quoted as under:- “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.” 14. In the case at hand the respondent No.4, has admitted this fact in the counter affidavit that she belongs to Scheduled Caste category and prior to transfer of land in dispute permission U/S 157-A of the Act of the Collector was necessary. This fact is also not disputed that no permission was obtained by the vendor prior to transfer of land to the petitioners. 15. Sri Lokendra Dobhal, Advocate appearing on behalf of the petitioners has vehemently urged that since the land loses its character and is not an agricultural land therefore provisions of Z.A. and L.R. Act cannot be invoked so far as the land in question is concerned. He further contended that the land has vested in the Nagar Nigam therefore provisions of the Act are not applicable to the land in dispute. 16. So far as first contention of learned counsel for the petitioners is concerned, the same cannot be accepted simply for the reasons that the land in dispute on the date of sale i.e. 13.2.1990 as well as on day is recorded as bhumidhari land with transferable rights in the khautani of 1410-1415 Fasli and the names of petitioners are recorded as bhumidhar with transferable rights. 17. So far as the submission that the land has vested to Nagar Nigam, in view of Section 167 of the Act earlier the land has vested with State Government automatically and the Collector can take forcible possession on that land. Therefore the argument of learned counsel for the petitioners is misconceived and cannot be accepted. The land of Gaon sabha vests in Nagar Palika and not with the State. 18. Therefore the argument of learned counsel for the petitioners is misconceived and cannot be accepted. The land of Gaon sabha vests in Nagar Palika and not with the State. 18. In view of the fact that the vendor –respondent No.4 is a member of Scheduled Caste and no permission was obtained by her U/S 157-A of the Act prior to transfer of the land in favour of the petitioners, who do not belong to Scheduled Caste category, therefore, there is clear violation of provision of Section 166 of the Act and the land has vested in the State Government. I do not find any illegality in the impugned orders passed by the Assistant Collector 1st class/S.D.O. as well as the learned Commissioner. The writ petition lacks merit and is dismissed. Interim order dated 21-10-2009 is vacated.