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2017 DIGILAW 520 (UTT)

UNICURE (India) Pvt. Ltd. v. State of Uttarakhand

2017-10-05

SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. The writ petition was dismissed in default on 27th July, 2017, on account of the absence of the counsel for the petitioner. Today, the case is listed on the restoration application before the Court. 2. The reason assigned therein is that the counsel for the petitioner could not mark the cause list and hence, he could not have the knowledge of the order of the dismissal dated 27th July, 2017, as such, he has filed the restoration application on 3rd October, 2017, alongwith the delay condonation application. 3. The said application for restoration is not being seriously opposed by the counsel appearing for respondent, hence, the delay caused in filing the restoration application is condoned. The delay condonation application (CLMA No. 12565 of 2017) is allowed. 4. The restoration application (MCC No. 966 of 2017) is allowed. Order dated 27.07.2017 is recalled. The writ petition is restored to its original number and is being simultaneously proceeded with to be heard on merits, with the consent of parties. 5. Brief facts of the case are that the petitioner has questioned the validity of the order dated 29th June, 2006, passed by the Collector, Haridwar, whereby, while exercising its power under Section 154 (5) (b), has declared the sale deed dated 22nd February, 2005 as void, and has vested the property in the State by invoking the provisions contained under Sections 166 and 167 of the Z.A. & L.R. Act, holding thereof, that the sale deed since being in violation of Section 154 (5) (b) is void. 6. The consequential order passed under Section 154 since it relates to transfer of holding and if the said transfer is void or contrary to the provision of the Act, then, it stands vested with the State under Section 167 read with 167 of the Act and that is why, the Legislature in its wisdom, while amending Section 154 has not provided any forum for order passed against it except the forum as provided by Schedule- 2 in relation to Section 166 read with 167 of the Act, as the said order would be a consequential order. 7. 7. The argument extended by the learned counsel for the petitioner is that after the purchase of the property, he had undertaken all the valid permissions required for the purposes of establishment of an industry and, accordingly, he has invested heavy amount and the industrial established is in operation over the land in question, where several employees are working. 8. He further submits that when the sale deed was executed on 22nd February, 2005, there was a simultaneous proceeding initiated against him under Section 47-A of the Indian Stamp Act, wherein, deed was determined to be insufficiently stamped and, accordingly, on levying of the deficiency of stamp, he has candidly remitted the amount by depositing the same by cheque. The learned counsel for the petitioner wants to convey by virtue of his argument that by the conduct of the State by granting all permissions for running an industry and accepting the stamp deficiency, they have accepted the validity of the sale deed and thus, Section 154 (5) (b) could not have been attracted, their action would be barred by estoppel. 9. He further submits that on reading of the provisions contained under Section 154 (5) (b), the power has been vested with the Revenue Officer, but unfortunate part is that the Legislature has not defined the Revenue Officer in the definition clause of the Z.A. & L.R. Act nor the definition as provided under the General Clauses Act deals with the definition of the Revenue Officer. 10. Though definition of Revenue Officer as referred under Section 154 (5) (b) is not provided under the Z.A. & L.R. but the same has been given under Sub-section (9) of Section 4 of the Land Revenue Act, which reads as under : “(9) “Revenue Officer” means any officer employed under this Act in maintaining revenue records, or in the business of this land revenue;” 11. It means any officer responsible for maintaining the revenue record or in the business of land revenue. This definition does not classify the revenue authority not it brings within its ambit the Collector or Additional Collector not it excludes by specific implication. It means any officer responsible for maintaining the revenue record or in the business of land revenue. This definition does not classify the revenue authority not it brings within its ambit the Collector or Additional Collector not it excludes by specific implication. But the definition of Revenue Officer as given under Sub-section (9) of Section 4 of the Land Revenue Act would not be applicable under the proceedings of Z.A.& L.R. Act because the said Act being a special Act, it only attracts the provisions of those Acts which are provided under Section 341 of the Z.A. & L.R. Act. Section 341 of Z.A. & L.R. Act in itself does not provide for the application of the provision of the Land Revenue Act on the proceedings under the Z.A. & L.R. Act. Another limb of argument of Mr. Bhupesh Kandpal, learned counsel for the petitioner is that once a reference has been made by the Collector, then, in that eventuality, the Collector himself could not have passed the order impugned in the writ petition. 12. Be that as it may. The provision of Z.A. & L.R. Act is a special legislation which is included in Schedule 11 of the Constitution of India and it has got an overriding effect. The effect of the impugned order dated 29th June, 2006, as passed by the Collector, which the petitioner contends to be without jurisdiction, is an issue which could always be decided by the Courts created under an Act. The effect of the impugned order would be that as a result of declaration of sale deed dated 22nd February, 2005, as to be void, being in violation of the provisions contained under Section 154 (5) (b), it would be vested with the State under Section 167. Thus, statutory remedy under Schedule-2 would be available to petitioner. 13. Though, the Schedule-2 of the Z.A. & L.R. Act do not provide for any Forum for any order passed under Section 154 (5) (b), but, the fact remains that as a consequence of the order impugned, the sale deed would become a void document by virtue of an effect of Section 166 read with 167 of the Z.A. & L.R. Act. 14. 14. May it be that Schedule 2 does not include a Statutory Forum available to the petitioner, but, in view of entry 15 contained under the Act, the petitioner has got a statutory remedy of an appeal or a revision before the Courts created under the Act. 15. In the instant case, since the impugned order has been passed by the Collector, in that eventuality, the petitioner’s remedy would be to prefer a revision under Section 333 of the Z.A. & L.R. Act. 16. Thus, this Court feels that all the factual aspects, including the competence of the Collector to pass an order, could be decided by the Revisional Court, as created under the Act. Thus, the writ petition fails and is dismissed. The petitioner, if so advised, may seek an appropriate statutory remedy provided under the Z.A. & L.R. Act. The Court will also take into consideration the effect of Section 14 of the Limitation Act. 17. No order as to cost.