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2015 DIGILAW 187 (UTT)

TAZAMMUL @ BHURA v. DEPUTY DIRECTOR OF CONSOLIDATION/COLLECTOR HARIDWAR

2015-03-31

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) Present petitions are filed assailing the orders dated 08.03.2001 and 08.11.2001 passed by Consolidation Officer, Roorkee; judgment and order dated 20.02.2003 passed by Settlement Officer, Consolidation, Haridwar 2 and judgment and order dated 02.06.2004 passed by Deputy Director, Consolidation, Haridwar. Therefore, all the petitions are heard together and are being disposed of by this common judgment with the consent of learned counsel for the parties. 2. Undisputedly, a patta was granted in favour of Tazammul @ Bhura under Section 197 of the U.P. Zamindari Abolition and Land Reforms Act read with Rules, in the year 1971 over the Gata (Khasra No. 14/1, 19 and 20/3) Village Kutubpur Grant, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar; as per terms of the patta, rights of bhumidhari with non-transferable rights were conferred in favour of the lessee namely Tazammul @ Bhura; Tazammul @ Bhura/lessee has executed one registered sale deed on 09.06.1988 in favour of M/s Anker Marine and Chemicals India Pvt. Ltd. and possession of the land bearing Khasra No. 14/1, 19 and 20/3 was handed over to the vendee; name of the vendee i.e. M/s Anker Marine and Chemicals India Pvt. Ltd. was mutated in the revenue records; on 01.03.1996 M/s Anker Marine and Chemicals India Pvt. Ltd. executed subsequent sale deed in favour of Dhuman Hotel Pvt. Ltd.; name of Dhuman Hotel was also got mutated in the revenue records; Dhuma Hotel Pvt. Ltd. executed yet subsequent sale deed in favour of Riyasat @ Kallu s/o Allah Rakkha; total area of the land being Khasra No. 14/1, 19 and 20/3, lease whereof was granted in favour of Tazammul was 5 bigha 16 biswa pukhta, however, for the reasons known to the Consolidation Authorities, area of the same land bearing Khasra No. 14/1, 19 and 20/3 was mentioned in the revenue record as 11 bigha 12 biswa and name of the lesee Tazammul was recorded as bhumidhar with transferable rights; in other words, the double area of lease holding land and bhumidhar with transferable rights were wrongly mentioned in the revenue record; Riyasat @ Kallu s/o Allah Rakkha respondent no. 4 in WPMS No. 957 of 2004 moved an application under Section 9 of the U.P. Consolidation of Holdings Act saying his name may be mutated on the basis of sale deed over Khasra No. 14/1, 19 and 20/3 total measuring 5 bigha 16 biswa pukhta whereupon proceedings commenced. 3. Undisputedly, lease was granted in favour of Tazammul petitioner of WPMS No. 957 of 2004 over Khasra No. 14/1, 19 and 20/3, total measuring 5 bigha 16 biswa pukhta with bhumidhar non-transferable rights, therefore, Tazammul had absolutely no right whatsoever, to transfer the property in favour of M/s Anker Marine and Chemicals India Pvt. Ltd. or in favour of any other person in view of Section 152 (2) of the Act, 1950. 4. Since, Tazammul had transferred the land in favour of M/s Anker Marine and Chemicals India Pvt. Ltd. on 09.06.1988 in violation of Section 152 (2) of the Act, therefore, sale deed executed in favour of M/s Anker Marine and Chemicals India Pvt. Ltd. was void. Consequently, all the subsequent sale deeds made by M/s Anker Marine and Chemicals India Pvt. Ltd. and Dhuman Hotel Pvt. Ltd. were also ab initio, void. 5. Sections 166 and 167 of the U.P.Z.A. & L.R. Act read as under: “166. Every transfer made in contravention of the provisions of this Act, shall be void. 167. (1) The following consequences shall ensure 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. (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. The bare perusal of Sections 166 and 167 of the Act, would demonstrate that any transfer made in contravention of the provisions of the Act, shall be void and subject matter of such transfer shall with effect from date of transfer, be deemed to have been vested in the State Government free from all encumbrances. 7. Section 131 B was enacted with effect from 14.01.1995, which reads as under: “131-B. Bhumidhar with non-transferable rights to become bhumidhar with transferable rights after ten years. – (1) Every person who was bhumidhar with non-transferable rights immediately before the commencement of the Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1995 and had been such bhumidahar for a period of ten years or more, shall become a bhumidahr with transferable rights on such commencement. (2) Every person who is a bhumidahr with non-transferable rights on the commencement referred to in sub-section (1) or becomes a bhumidahr with non-transferable rights after such commencement, shall become bhumidahr with transferable rights on the expiry of period of ten years form his becoming a bhumidhar with non-transferable rights. (3) Notwithstanding anything contained in any other provision of this Act, if a person, after becoming a bhumidhar with transferable rights under sub-section (1) or sub-section (2). Transfers the land by way of sale, he shall become ineligible for a lease of any land vested in Gaon Sabha or the State Government or of surplus land as defined in the Uttar Pradesh Imposition of Ceiling of Land Holdings Act, 1960.” 8. A bare reading of Section 131 B, as enacted on 14.01.1995, would reveal that every person, who was a bhumidhar with non-transferable rights immediately before the commencement of the U.P.Z.A. & L.R. (Amendment) Act, 1995 and had been such bhumidhar for a period of 10 years or more, shall become bhumidhar with transferable rights on such commencement. 9. A bare reading of Section 131 B, as enacted on 14.01.1995, would reveal that every person, who was a bhumidhar with non-transferable rights immediately before the commencement of the U.P.Z.A. & L.R. (Amendment) Act, 1995 and had been such bhumidhar for a period of 10 years or more, shall become bhumidhar with transferable rights on such commencement. 9. Undisputedly, any patta granted over the Gram Sabha land under Section 197 of the Act, prior to the amendment of Section 131B was of the nature of bhumidhar with non-transferable rights, therefore, any wrong entry made in the revenue records that Tazammul was bhumidhar with transferable rights, prior to enactment of Section 131B, was wrong and against the law and benefit thereof cannot be given to the original lesee Tazammul or subsequent transferees. 10. Since, transfer made by Tazammul on 09.06.1988 prior to enactment of Section 131 B, was void therefore, in view of Sections 166-167 of the Act, property stood vested in favour of the State Government free from all encumbrances. 11. Learned Deputy Director of Consolidation in the impugned order while placing reliance on Section 152 (2), 131 B, 166 and 167 of the Act has rightly held that all the transfers made right from Tazammul till in favour of Riyasat are void, ab initio and land stood vested in favour of State Government, which calls no interference. 12. For the reasons discussed, hereinbefore, all the writ petitions fail and are hereby dismissed. 13. Let copy of this judgment be placed in all the connected petitions.