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2015 DIGILAW 533 (ALL)

Khanjan v. State of U. P.

2015-03-23

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. 1. Heard Sri Rakesh Pande, learned Counsel for the petitioner and learned Standing Counsel for the State-respondents. By means of this writ petition, the petitioner seeks quashing of the order dated 1.7.2014 passed by the Commissioner, Meerut Division, Meerut and the orders dated 26.9.2012 and 17.2.2014 passed by the A.D.M., Gautam Budha Nagar. 2. The facts of the case, briefly stated, are that the land in question was recorded in the name of Sukhdev. On his death, his sons sold the same to the petitioner by means of a registered sale-deed dated 13.5.2005. 3. It appears that a complaint was made on 12.10.2009 that the petitioner, the vendee, did not belong to the scheduled caste and the sale-deed had been executed without obtaining permission for the same. This complaint appears to have been made to the S.D.M. concerned. 4. On the basis of the aforesaid complaint, proceedings under section 166/167 of the U.P. Zamindari Abolition and Land Reforms Act were drawn, wherein vide order dated 26.9.2012, it was held that the sale-deed had been executed in violation of section 157-AA (4) and the land was therefore ordered to vest in the State Government. 5. The petitioner filed a restoration application on the ground that the order was ex parte. This restoration application was allowed and thereafter vide order dated 17.2.2014 passed after hearing the petitioner, the earlier order dated 26.9.2012 was reiterated. The consequential revision filed by the petitioner has been dismissed by the order dated 1.7.2014 passed by the Commissioner. Hence this writ petition. 6. Learned Counsel for the petitioner has submitted that (i) Both the vendor and vendee were Jatav by caste and, therefore, both were members of scheduled caste and, therefore, no permission was required prior to the execution of the sale-deed in question; (ii) There is no material on record to show that the land in question had been allotted to the petitioner's vendor and would therefore, fall within the purview of section 131-B of the Act; (iii) The land sold had been allotted in the chak of the vendor during consolidation operations and, therefore, fresh rights had been created and such chak would not fall within the purview of section 131-B of the Act. The impugned orders are therefore vitiated; (iv) Section 131-B of the Act has been inserted in the statute vide U.P. Act No. 19 of 1995 w.e.f. 14.1.1995. Since the vendor had become Bhumidhar of the land in question prior to the said date, he did not fall within the purview of this section and, therefore, also the impugned orders are liable to be set aside; (v) In view of the provisions of section 331 of the U.P. Land Revenue Act read with the entries in schedule II of the Act, orders in proceedings under section 167 could have been passed only by the S.D.M. In the instant case, the orders have been passed by the A.D.M. Gautam Budha Nagar and, therefore, the orders impugned, are without jurisdiction. 7. As regards the first submission of learned Counsel for the petitioner, suffice it to state that the orders impugned have been passed on the basis of violation of the provisions as contained in section 157-AA of the Act and the case in hand is not one under any other provision. Sub-section 4 of section 157-AA reads as follows "No transfer under this section shall be made except with the previous approval of the Assistant Collector concerned." 8. A perusal of this provision extracted above, clearly lays down that every transfer made, which is covered by the provisions of section 157-AA, has to be made only after the previous approval of the Assistant Collector. This permission has admittedly not been obtained and, therefore, the submission of learned Counsel for the petitioner in this regard lacks force. 9. Insofar as the second submission of learned Counsel for the petitioner that there is no material to show that the land in question did not fall within the purview of section 131-B, it would be relevant to note that neither before the Courts below nor in the body of the writ petition there exists any averment that the land in question did not fall within the purview of section 131-B. It is therefore clear that there is no categorical denial that the land in question did not fall within the scope of the said section and that the vendor had not become Bhumidhar with transferable rights after having remained in possession for a period of ten years as Bhumidhar with non transferable rights. 10. 10. Since the impugned orders have been passed under section 157-AA, and since there is no categorical denial on the part of the petitioner that section 131-Bwas not attracted in the instant case, the submission of learned Counsel for the petitioner cannot be accepted. 11. Coming to the third submission made by learned Counsel for the petitioner, it would be relevant to note that adjustments made in the holdings of a tenure holder during consolidation operations are for the purpose of consolidating the holdings of the tenure holders in the unit in question. The location of the land may change on account of consolidation operations but this change in location does not change the nature of the tenurial rights of the tenure holder. His rights in the land held by him on the start of consolidation operations would remain the same, even in case he is allotted a separate piece of land in lieu of his original holding and, therefore, even this submission of learned Counsel for the petitioner has been made only to be rejected. 12. It is true that section 131-B of the Act has been introduced w.e.f. 14.1.1995. However, there is nothing in this provision, which would limit its operation prospectively. This section only provides that if a person was in possession of land as Bhumidhar with non transferable rights before the commencement of the U.P. Zamindari Abolition and Land Reforms Amendment Act, 1995 for a period of ten years or more, he was conferred rights of a Bhumidhar with transferable rights. Sub-section 2 further provides that even a Bhumidhar with non transferable rights on the commencement referred to in sub-section 1 or becomes a Bhumidhar with non transferable rights after such commencement, shall become Bhumidhar with transferable rights on the expiry of a period of ten years from his becoming the Bhumidhar with non transferable rights. 13. It is therefore clear that this section is equally applicable both to those, who were admitted as Bhumidhars with non transferable rights either before or after coming into force of this section 131-B. In both contingencies, the tenure holder became a Bhumidhar with transferable rights after the expiry of a period of ten years as Bhumidhar with nontransferable rights. 13. It is therefore clear that this section is equally applicable both to those, who were admitted as Bhumidhars with non transferable rights either before or after coming into force of this section 131-B. In both contingencies, the tenure holder became a Bhumidhar with transferable rights after the expiry of a period of ten years as Bhumidhar with nontransferable rights. In such view of the matter, the contention of learned Counsel for the petitioner that he had become a Bhumidhar with non transferable rights prior to 1386 Fasli and did not fall within the purview of section 131-B cannot be accepted. But for the introduction of section 131-B, a Bhumidhar with nontransferable rights would always remain as such and would not become a Bhumidhar with transferable rights. 14. Coming to the last submission made by learned Counsel for the petitioner that the authority competent to pass the impugned order was the S.D.M. while it has been passed under section 157 AA by the A.D.M., it may be noted that the A.D.M. is an authority higher in rank than the S.D.M. and, therefore, the order passed by him cannot be said to be without jurisdiction. If a subordinate authority has the jurisdiction to exercise a power, the power can definitely be exercised by a superior authority. This is precisely what has been done in the instant case and, therefore, the submission in this regard is repelled. 15. Accordingly and in view of the discussion above, I find no merit in the submissions made by learned Counsel for the petitioner. The writ petition therefore is devoid of substance and is accordingly dismissed.