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2016 DIGILAW 3896 (ALL)

Charan Singh v. Upper Ayukt, Meerut Mandal, Meerut

2016-12-02

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra,J. Heard Shri Mohit Kumar, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. The writ petition arises out of proceedings under Sections 166/167 of the UP ZA & LR Act, 1950 (herein after referred to as the 'Act, 1950') and seeks quashing of the order dated 7.8.2006 passed by the Collector, Bulandshahar, whereby the land in question has been ordered to be vest in the State as a sale-deed of this land was executed by respondent No. 3, in favour of the petitioner without obtaining prior permission, provided for under Section 157-AA of the Act, 1950. 3. The consequential revision has been dismissed by the Additional Commissioner, Meerut Division, Meerut vide order dated 17.10.2007. 4. Hence this writ petition, challenging the orders dated 7.8.2006 and 17.10.2007 passed by the respondents. 5. The dispute in the petition relates to two plots of Khata No. 114, namely, Plot No. 63 area 0.405 hectares and Plot No. 65 (Ka) area 0.101 hectares, situated in Village Sunpeda, Tehsil Sikandarabad, District Bulandshahar. This land was recorded in the name of respondent No. 3-Charani s/o Chandu as its bhumidhar with transferable rights. A sale-deed of this land was executed by the respondent No. 3 on 7.7.2003 in favour of the petitioner. 6. It is submitted that both the vendor and vendee belonged to the scheduled castes. 7. Upon a report, made by the Tehsildar on 23.9.2003, proceedings under Sections 166/167 of the Act, 1950 were initiated before the District Magistrate, who, finding that the land in question had been allotted to respondent No. 3 on lease and he had thereafter become its bhumidhar with transferable rights in accordance with the provisions of Section 131-B of the Act, 1950 and the sale-deed was executed without obtaining prior permission, provided for, in Section 157-AA of the Act, 1950 the sale was a void transaction in view of Section 165 of the Act. 8. Consequently, the land, subject matter of the void transaction was ordered to vest in the State. 9. Challenge to the order of the District Magistrate by means of Revision No. 161 of 2005-06 before the Commissioner, Meerut Division, Meerut culminated in the order dated 17.10.2007 passed by the Additional Commissioner, Meerut Division, Meerut, whereby the revision was dismissed, categorically observing that the land, subject matter of the sale-deed had been allotted to the vendor. 10. 9. Challenge to the order of the District Magistrate by means of Revision No. 161 of 2005-06 before the Commissioner, Meerut Division, Meerut culminated in the order dated 17.10.2007 passed by the Additional Commissioner, Meerut Division, Meerut, whereby the revision was dismissed, categorically observing that the land, subject matter of the sale-deed had been allotted to the vendor. 10. The contention of learned counsel for the petitioner is that both the vendor and vendee belonged to the Scheduled Castes. Therefore, in view of Section 157-A of the Act, no permission was required before execution of the sale-deed. The petitioner is a bona fide purchaser for value. The provisions of Section 157-AA of the Act, 1950, were not attracted in the facts and circumstances of the case. Besides, the order passed by the District Magistrate, Bulandshahar, was an ex parte order and it could not have been passed without affording the parties, especially, the respondent No. 3, an opportunity of adducing evidence. The revisional court has committed patent illegality in affirming an ex parte order. 11. In paragraph 9 of the writ petition, it has been averred that the revision had been filed before the Commissioner, Varanasi Division, Varanasi. This averment appears to be a typographical error. The certified copy of the impugned orders reveals that the revision has been decided by the Additional Commissioner, Meerut Division, Meerut. 12. Learned Standing Counsel has supported the impugned orders and submitted that the writ petition is devoid of merits and is liable to be dismissed. 13. I have considered the submissions made by learned counsel for the parties and have perused the record. 14. The first submission made by learned counsel for the petitioner, which requires consideration is the allegation that the order passed by the Collector on 7.8.2006, was an ex parte order. This submission appears to be correct. However, it is not in dispute that the against this order, a revision has been filed by the petitioner. This revision has been decided after hearing him. Under the circumstances, therefore, the initial defect, if any, of the order passed by the District Magistrate being an ex parte order, stands cured, as the petitioner was duly heard before his revision was decided by the impugned revisional order. 15. This revision has been decided after hearing him. Under the circumstances, therefore, the initial defect, if any, of the order passed by the District Magistrate being an ex parte order, stands cured, as the petitioner was duly heard before his revision was decided by the impugned revisional order. 15. The second contention, raised, is that since, both the vendor and vendee belonged to the Scheduled Castes, the provisions of Section 157-AA of the Act, 1950, were not attracted. 16. In support of this contention, reliance has been placed upon a judgment of this Court in the Case of Ramey vs. State of UP and others; 2015 (2) ADJ 392 . 17. Section 157-A and Section 157-AA of the Act, 1950, operate in entirely different fields. Section 157-A provides that a bhumidhar with transferable rights belonging to the Scheduled Castes, cannot execute a sale-deed of any land held by him in favour of a person not belonging to the Scheduled Castes without having obtained prior permission for executing the sale-deed. 18. It is clear from a bare perusal of the Section that no permission is required where a sale-deed is executed by a bhumidhar with transferable rights belonging to the Scheduled Caste in favour of another person, also of the Scheduled Caste. 19. However, Section 157-AA of the Act, 1950, deals with land to which a person belonging to the Scheduled Caste, become a bhumidhari with transferable rights by operation of law. Section 131-B of the Act provides that where a person has been allotted land by the Gaon Sabha and he has remained in possession for a period of 10 years, he becomes a bhumidhar with transferable rights thereof. Section 157-AA is attracted in cases where a member of the Scheduled Castes becomes a bhumidhar with transferable rights, of land allotted to him on lease, by the Gaon Sabha, in accordance with Section 131-B of the Act, 1950. He can transfer or sell the land only in accordance with the order of preference provided is Section 157AA and to ensure that the order of preference is followed, the prior permission of the Assistant Collector becomes necessary. 20. In the impugned orders, the courts below have categorically observed that the land, subject matter of the sale-deed in favour of the petitioner, was and allotted on patta to the respondent No. 3. This crucial fact is not disputed in the writ petition. 20. In the impugned orders, the courts below have categorically observed that the land, subject matter of the sale-deed in favour of the petitioner, was and allotted on patta to the respondent No. 3. This crucial fact is not disputed in the writ petition. It, therefore, stands admitted on record that the vendor-respondent No. 3 had become a bhumidhar with transferable rights of the land in question in accordance with the provisions of Section 131-B of the Act. Therefore, the provisions of Section 157-AA of the Act, were squarely applicable in the facts and circumstances of the instant case. No sale-deed of this land could have been executed without obtaining the prior permission provided for in Section 157-AA of the Act, 1950. It is also not the case of the petitioner that the sale-deed, in his favour, was executed after obtaining due permission. 21. Under the circumstances, therefore, the impugned orders are perfectly justified and completely in accordance with law. They call for no interference and are liable to be affirmed. 22. It would be relevant to observe that reliance upon the judgement in the case of Ramey Vs. State of State of U.P. and others; 2015(2) ADJ 392 is mis-placed in view of the judgment dated 10.08.2015 in Writ Petition No. 44406 of 2015, wherein it has been held as follows while considering the judgment in the case of Ramey (supra) : " The said judgment having failed to notice the crucial sub-section (4), must therefore, be held to be per incurium. Therefore, the petitioner is not entitled to get any benefit of the said judgment in the case of Ramey ( supra). It has also been held as follows : "Sub-section (4) has been introduced which mandates that in case, a person is entitled to execute a sale deed, etc. in favour of person(s) belonging to the Scheduled Caste, such transfer shall not be without prior permission of the Assistant Collector. If this is not the valid and correct interpretation of sub-section (4) of Section 157-AA of the Act, sub-sections (1) and (2) would be rendered redundant. The other judgment cited is Smt. Ramwati vs. Chandra Gopal & others, of the Uttrakhand High Court, 2011(113) RD 526. 23. This judgment is clearly distinguishable on facts. If this is not the valid and correct interpretation of sub-section (4) of Section 157-AA of the Act, sub-sections (1) and (2) would be rendered redundant. The other judgment cited is Smt. Ramwati vs. Chandra Gopal & others, of the Uttrakhand High Court, 2011(113) RD 526. 23. This judgment is clearly distinguishable on facts. Here an application had been filed by the vendor seeking permission to sell his land, which was, in fact, granted, though, after the sale-deed had been executed. 24. The petitioner cannot derive any benefit from this order because in the case at hand no permission was ever sought by the vendor. 25. In view of the above discussion, the writ petition is completely devoid of merits and is, therefore, dismissed.