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2017 DIGILAW 959 (ALL)

RAM PRAKASH v. STATE OF U. P.

2017-04-10

DEVENDRA KUMAR UPADHYAYA

body2017
JUDGMENT Hon’ble Devendra Kumar Upadhyaya, J.—Heard learned counsel for the petitioner and learned Standing Counsel for opposite parties. 2. The petitioner by means of this petition challenges an order dated 24.3.2017, passed by the Collector, Hardoi, whereby the application moved by the petitioner under Section 98 of Uttar Pradesh Revenue Code, 2006, seeking permission to transfer half area of plot Nos. 258 ka and 258 kha, situate in village Dhaba, Pargana and Tehsil Bilgram, District Hardoi, has been refused on the ground that the petitioner has mortgaged the aforesaid plots for securing loan from Punjab National Bank, Branch Haibatpur. The District Collector has, thus, rejected the application on the said ground alone. 3. Section 98 of Uttar Pradesh Revenue Code, 2006 puts certain restrictions on transfer of land by bhumidhars belonging to a scheduled caste. According to the said provision, a bhumidhar belonging to scheduled caste does not have right to transfer the land belonging to a person other than the scheduled caste, save with the permission of the Collector. The proviso appended to Section 98 provides that the Collector will grant permission in case the bhumidhar belonging to a scheduled caste has no surviving heir or such a bhumidhar has settled and is ordinarily residing in a district other than the district in which the land proposed to be transferred is situated or the District Collector is satisfied that it is necessary to grant permission for transfer of land. Section 98 of Uttar Pradesh Revenue Code, 2006 is quoted hereinbelow : “98. Section 98 of Uttar Pradesh Revenue Code, 2006 is quoted hereinbelow : “98. Restrictions on transfer by bhumidhars belonging to a scheduled caste—(1) (1) Without prejudice to the provisions of this Chapter, no bhumidhar belonging to a scheduled caste shall have the right to transfer, by way of sale, gift, mortgage or lease any land to a person not belonging to a scheduled caster, except with the previous permission of the Collector in writing : Provided that the permission by the Collector may be granted only when- (a) the bhumidhar belonging to a scheduled caste has no surviving heir specified in clause (a) of sub-section (2) of Section 108 or clause (a) of Section 110, as the case may be; or (b) the bhumidhar belonging to a scheduled caste has settled or is ordinarily residing in the district other than that in which the land proposed to be transferred is situate or in any other State for the purpose of any service or any trade, occupation, profession or business; or (c) the Collector is, for the reasons prescribed, satisfied that it is necessary to grant the permission for transfer of land. (2) For the purposes of granting permission under this section, the Collector may make such inquiry as may be prescribed.” 4. Before granting permission under Section 98, the Collector is required to make such inquiry as may be prescribed. Prescription of such an inquiry is available in Rule 99 of Uttar Pradesh Revenue Code Rules, 2016 framed under Section 233 of Uttar Pradesh Revenue Code, 2006. Rule 99 is extracted herein below for reference : “99. Collector’s permission for transfer of Scheduled Caste bhumidhar’s land. (Section 98)—(1) An application under Section 98 (1) or under Section 98 (1) read with Section 107, for permission to transfer land by way of sale or gift or for permission to bequeath land by Will, as the case may be, shall be made by a Bhumidhar with transferable rights belonging to Scheduled Caste to the Collector in R.C. Form-27. (2) An application under Section 98 (1), for permission to mortgage his interest in the land shall be made by a bhumidhar, belonging to a Scheduled Caste to the Collector in R.C. Form-28. (3) An application under Section 98 (1), for permission to let out land shall be made by a bhumidhar belonging to a Scheduled Caste to the Collector in R.C. Form-29. (3) An application under Section 98 (1), for permission to let out land shall be made by a bhumidhar belonging to a Scheduled Caste to the Collector in R.C. Form-29. (4) On receipt of an application under Section 98 (1), the Collector shall make such inquiry as he may, in the circumstances of the case, deem necessary. He may also depute an officer not below the rank of Naib Tahsildar for: (a) verification of the facts stated in the application; and (b) reporting the circumstances in which permission for transfer is sought. (5) The inquiry officer referred to in sub-rule (4) of this rule shall submit the report in duplicate within the period of fifteen days, from the date of receiving the order of such inquiry. (6) A copy of the report shall be supplied to the applicant free of charge, from the office of the Collector where such report has been submitted. (7) The applicant may file objection against the report submitted by the inquiry officer within the period of seven days from the date of receipt of the copy of the report. (8) After receiving the report submitted under sub-rule (3) and the objection, if any, if the Collector is satisfied that- (a) the conditions of clause (a) or clause (b) of sub-section (1) of Section 98 are fulfilled; or (b) the tenure holder or any member of his family is suffering from any fatal disease regarding which the certificate has been issued by any physician or surgeon specialist in the disease concerned and the permission for transfer is necessary to meet out the expenses for the treatment of such disease; or (c) the applicant is seeking permission under Section 98(1) of the Code for the proposed transfer to purchase any other land from the consideration of such proposed transfer and the facts in this regard in the application are supported with certified copy of a registered agreement to sell in favour of the applicant; or (d) the area of land held by the applicant on the date of application does not, after such transfer, reduce to less than 1.26 hectares, and (e) if the permission is being sought for transfer by sale the consideration for the transfer of the land is not below the amount calculated as per the circle rate fixed by the Collector; he may grant the permission by recording the reasons. Explanation : For the removal of doubt it is a hereby clarified that if the condition enumerated in clause (d) of this sub-rule is not fulfilled but any condition enumerated in clauses (a) to (c) of this rule is fulfilled the permission under Section 98(1) of the Code may be granted by Collector. (9) An application referred to in sub-rule (2) or sub-rule (3) of Rule 99 for permission to mortgage or to let out land, as the case may be, may be granted by the Collector on his being satisfied that the mortgage or letting out, as the case may be, is not possible in favour of a person belonging to a Scheduled Caste or Scheduled Tribe. (10) An application referred to in sub-rule (1) of Rule 99 for permission to bequeath land by Will, may be granted by the Collector on his being satisfied that the bequeath of the land was not possible in favour of the person belonging to a Scheduled Caste or a Scheduled Tribe. (11) The Collector shall make an endeavour to dispose of the application under Section 98(1) within the period of fifteen days from the date of receiving the report submitted by the inquiry officer and if the application is not disposed of within such period the reason for the same shall be recorded.” 5. According to the prescriptions available in Rule 99, application for permission under Section 98 (1) of Uttar Pradesh Revenue Code is to be followed by an inquiry which the Collector deems necessary in the circumstances of the case, who may depute an officer for verification of the facts stated in the application and also for reporting the circumstances in which permission for transfer has been sought. The Inquiry Officer is to submit a report with a copy to be supplied by the Collector to the applicant, who is further entitled to file objection against the report so submitted by the Inquiry Officer. On receipt of the report and the objection, if any, the Collector has to proceed to decide the prayer for permission, who, on satisfaction that conditions of clause (a) or clause (b) of sub-section (1) of Section 98 are fulfilled or the tenure holder or any member of his family is suffering from any fatal disease, shall grant permission for transfer. Thus, permission by Collector can be granted in case of fulfillment of the conditions given in sub-section (1) of Section 98 of the Code and also in case for the reasons to be recorded if the Collector is satisfied that it is necessary to grant such permission for transfer of land. Rule 99, inter alia, provides that on satisfaction of the Collector that tenure holder or any member of his family is suffering from any fatal disease and that permission for such transfer is necessary to meet the expenses for treatment, he shall grant the permission. 6. Section 98 of Uttar Pradesh Revenue Code, 2006 has been framed for the benefit of the bhumidhars belonging to scheduled caste. 7. In this case, permission was sought by the applicant-petitioner on the ground that he is suffering from cancer which is undoubtedly a fatal disease, treatment of which will require huge sums of money. The fact that for securing loan the property has been mortgaged with the bank is not a relevant consideration for the Collector for the purposes of considering the prayers made seeking permission to transfer land by the bhumidhar belonging to scheduled caste. The considerations which are required to be made and the factors which are required to be taken into account for the purposes of dealing with an application moved under Section 98 of the Uttar Pradesh Revenue Code, 2006 are given in the Act itself as also under Rule 99 of Uttar Pradesh Revenue Code Rules, 2016. 8. As to whether any resistance can be put for transfer of the land by the bank is not the outlook of the Collector; rather it is for the bank to resist any such rule, if the bank so desires. 9. It is relevant to point out that the provisions of Section 98 have been enacted for the benefit of members of scheduled caste and thus, it cannot be interpreted and applied in such manner that it becomes detrimental to their interest. 10. 9. It is relevant to point out that the provisions of Section 98 have been enacted for the benefit of members of scheduled caste and thus, it cannot be interpreted and applied in such manner that it becomes detrimental to their interest. 10. This Court in some what similar circumstances in the case of Mool Chand v. Commissioner, Meerut Division, Meerut and others, 2011(5) ADJ 482 , has held that the Collector could not have refused the permission sought to transfer land by a bhumidhar belonging to scheduled caste only for the reason that applicant therein was under threat or being proceeded with recovery proceedings by the Bank wherefrom he had taken loan. Though the said case pertained to the provisions of Section 157-A of U.P.Z.A & L.R. Act, however, the provisions of Section 98 of Uttar Pradesh Revenue Code, 2006 and Section 157-A of U.P.Z.A & L.R.Act being pari materia, the judgment of this Court in the case of Mool Chand (supra) would squarely cover the facts of present case as well. 11. For the reasons disclosed above, the writ petition deserves to be allowed. 12. Accordingly, the petition is allowed and the order dated 24.3.2017, passed by the Collector, Hardoi, as contained in Annexure 1 to the writ petition, is hereby quashed. The Collector, Hardoi, is directed to reconsider the entire matter strictly in accordance with the provisions contained in Section 98 of Uttar Pradesh Revenue Code, 2006 read with Rule 99 of Uttar Pradesh Revenue Code Rules, 2016 and take a decision on the application of the petitioner. While taking decision under this order, the Collector shall be guided by Rule 99 of Uttar Pradesh Revenue Code Rules, 2016, specially Rule 99 (8) (b) of the said Rules. The said consideration by the Collector shall be made and final decision shall be taken thereon within a period of six weeks from the date of production of a certified copy of this order.