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2013 DIGILAW 835 (UTT)

S. C. Mathur v. State of Uttarakhand

2013-12-31

B.S.VERMA

body2013
Judgment B.S. Verma, J. By means of this writ petition, petitioners have sought a writ in the nature of certiorari for quashing the judgment and order dated 31.08.2013 passed by Board of Revenue, whereby the revision filed by the respondent State has been allowed, as well as the order dated 14.05.2008 passed by the Assistant Collector, 1st Class, Vikas Nagar, Dehradun. 2. The brief facts of the case are that, on 23.12.2006, petitioner No. 1, exercising his rights under the Power of Attorney executed in his favour, executed a sale-deed in favour of petitioner No. 2. Subsequently, on a reference dated 21.01.2007 made by the Sub Registrar; Assistant Collector, 1st Class, Vikas Nagar, Dehradun, initiated proceedings under Sections 166 and 167 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the “said Act”) and, without providing opportunity of being heard to the petitioners, passed impugned order dated 14.05.2008 directing that the property purchased by petitioner No. 2 be vested in the State. Thereafter, petitioners filed a revision against order dated 14.05.2008 before the court of Additional Commissioner, Garhwal Mandal, Pauri, which was registered as Revision No. 47 of 2007. The said revision was dismissed vide order dated 27.07.2012. Thereafter, petitioners filed a review application for review of the order dated 27.07.2012, which was allowed on 28.09.2012 and the revision filed by the petitioners was also allowed in part by setting aside the order dated 14.05.2008 and directing the Assistant Collector to decide the case afresh on merits after hearing both the parties. Feeling aggrieved thereby, State of Uttarakhand preferred a revision, which was registered as Revision No. 50 of 2012, before the Board of Revenue, which was allowed vide impugned judgment and order dated 31.08.2013 by which the order dated 28.09.2012 was set aside. Hence, the present writ petition has been filed. 3. It is admitted that the sale deed was executed on 23.12.2006, i.e. after the amendment effected in Section 152-A of the said Act. Hence, the present writ petition has been filed. 3. It is admitted that the sale deed was executed on 23.12.2006, i.e. after the amendment effected in Section 152-A of the said Act. For the facility of reference, Section 152-A is reproduced herein below: “152-A. – (1) A bhumindhar with transferable rights may execute power of attorney for transfer of land in favour of persons who are covered under Sections 171, 172, 174 or 175 and in case no such person is existing, such Power of Attorney may be executed in favour of any other person with the prior permission of the Collector of the district or of the Indian consulate in case of persons living abroad. (2) A registered Power of Attorney to sell the land executed on or before 12.9.2003 shall be valid if the sale deed on the basis of such Power of Attorney is executed on or before 31.3.2004, irrespective of any time limit provided in such Power of Attorney, unless extended by the Collector of the district for reasons to be recorded in writing.” 4. By a perusal of the above-quoted Sub-Section (2) of Section 152-A, it reveals that the Power of Attorney, which was executed on or before 12.9.2003 shall be valid if the sale deed, on the basis of such Power of Attorney, is executed on or before 31.03.2004, irrespective of any time limit provided in such Power of Attorney. Admittedly, the sale deed in the present case was executed on 23.12.2006, i.e. after 31.03.2004, and, before executing the said sale deed, no extension of time was sought from the Collector, who has the power to extend the time for reasons to be recorded in writing. 5. Further, Section 166 of the said Act says that every transfer made in contravention of the provisions of this Act shall be void. Sub-Section (2) of Section 167 of the said Act provides that, where any land or other property has vested in the State Government under sub-section (1), the Collector shall be lawful to take over possession over such land or other property. For ready reference, Section 166 and Section 167 of the said Act are reproduced herein below: “166. Every transfer made in contravention of the provisions of this Act shall be void. 167. For ready reference, Section 166 and Section 167 of the said Act are reproduced herein below: “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 transaction 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 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 unauthorized occupants, the Collector may use or cause to be used such force as may be necessary.” 6. Therefore, since the sale deed in question has been executed on 23.12.2006, i.e. after 31.03.2004, the Power of Attorney cannot be said to be valid. The same being in contravention of the provisions of the said Act, the sale in question is void. There is also no provision in Section 167 of the said Act for giving an opportunity of hearing to any person before taking over the possession. Therefore, I find no illegality in the orders passed by the Assistant Collector and the Board of Revenue. 7. The writ petition is devoid of merit and the same is dismissed at the threshold.