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2018 DIGILAW 888 (ALL)

BUDDHI v. STATE OF U. P.

2018-04-12

PANKAJ NAQVI

body2018
JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard Sri Babu Lal Ram holding brief of Sri Ram Surat Saroj, learned counsel for the petitioner and Sri Rajesh Kumar, the learned standing counsel. 2. The petitioner filed an application under Section 98 of the U.P Revenue Code, 2006 for permission of the Collector to sell the property shown as Khata No. 0415, khasra No. 1001 kha (0.423 hct) (property in dispute) to a non scheduled caste person, on the ground that he is of a ripe age, often remains ill and intends to stay with his daughter in Delhi. The application accompanied an OPD certificate dated 3.5.2017 of the petitioner, issued by Zila Sanyukt Chikitsalaya, Sanjay Nagar, Ghaziabad. A report was called from the subordinate revenue authorities. The Collector on 16.5.2017 declined to accord the permission on the premise that the case does not fall within the prescribed parameters. 3. Section 98 of the U.P Revenue Code, r/w Rule 99 of the 2016 Rules governs the fate of such applications. Section 98 is quoted hereunder: “98-Restrictions on transfer by bhumidhars belonging to a scheduled caste— 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 caste, 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 his section, the Collector may make such inquiry as may be prescribed.” 4. A perusal of sub-section (1) manifests that a scheduled caste bhumidhar cannot sell land to any person except a scheduled caste, save with the permission of the Collector in writing. (2) For the purposes of granting permission under his section, the Collector may make such inquiry as may be prescribed.” 4. A perusal of sub-section (1) manifests that a scheduled caste bhumidhar cannot sell land to any person except a scheduled caste, save with the permission of the Collector in writing. The proviso thereto lays down the conditions for grant of permission. vide Clause (a) a scheduled caste bhumidhar having no surviving heir specified in Clause (a) to sub-section 2 of Section 108 of clause (a) of Section 110 or vide Clause (b) a scheduled caste bhumidhar who has settled or is ordinarily residing in the district other than that in which the land is proposed to be transferred is situated or in other state for the purpose in any other service/occupation/trade/business or vide Clause (c) the Collector for reasons prescribed, specified that it is necessary to grant permission for transfer of land. The conditions in Clause (a) & (b) are specific whereas in Clause (c) is residuary, to be invoked, in the facts and circumstances of each case. 5. Rule 99 of the Rules of 2016 provides a mechanism as to how an application under Section 98 of the Code is to be filed and dealt with Rule 99 is extracted hereunder: 99. (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. (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. 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. 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 subrule (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. 6. An analysis of clause (8) of Rule 99 indicates that once a report/objections, if any, are received and the Collector is satisfied that conditions of Clause (a) or (b) of sub-section (1) of Section 98 are fulfilled vide Clause (a), he may grant permission by recording reasons. vide Clause (b), permission can be granted if the tenure-holder or any member of his family is suffering from any fatal disease, certified by a specialist and transfer is necessary to meet the expenses for treatment. vide Clause (c), permission can be granted in the event of proposed transfer to purchase any other land, supported by a certified copy of registered agreement to sell in favour of the applicant. vide Clause (d), the area held by the applicant on the date of the application does not after transfer is reduced to less than 1.26 hct and under Clause (e) if the consideration for transfer is not below the circle rate fixed by the Collector, permission may be granted by recording reasons. vide Clause (d), the area held by the applicant on the date of the application does not after transfer is reduced to less than 1.26 hct and under Clause (e) if the consideration for transfer is not below the circle rate fixed by the Collector, permission may be granted by recording reasons. However, an explanation attached to Clause (8) dilutes the rigour of Clause (d) as it provides that if the condition in Clause (d) is not satisfied but either of the condition in Clause (a) to (e) are satisfied, permission under Section 98(1) of the Code may be granted. 7. Admittedly, case in hand is not covered by proviso (a) or (b) of Section 98. The issue is to be examined only in reference to Clause (c) of Section 98 of the Code. 8. The age of the petitioner as disclosed in the parent application dated 2.11.2016 is reported to be 80 years which has not been controverted in the report of the revenue authorities. The only ground which was taken for transfer of the land, was the illness of the petitioner and of his wife and the only document which was filed in support thereof, was an OPD ticket, issued by Zila Sanyukta Chikitsalaya, Sanjay Nagar, Ghaziabad. The ticket nowhere indicates the nature of illness as it only calls upon the petitioner to be examined by a Physician/Ophthalmologist and an Orthopaedist by the C.M.O, Ghaziabad on 3.5.2017. This OPD ticket cannot be called a certificate of a specialist certifying the nature of ailment/disease as the same is silent as to the nature of ailment. Thus, the authority concerned did not commit any illegality in refusing to grant permission on medical grounds. 9. However, during the pendency of the petition, an additional ground was pressed on behalf of the petitioner that on account of advance age of petitioner and his wife, i.e., 82 & 80 years respectively, are staying with their married daughter, namely, Sarita at H.No. A-76, Lane No. 1, Part-II, Soniya Vihar, Sathapur, Delhi and in support thereof said daughter had filed a supplementary-affidavit dated 24.2.2018. The daughter has asserted that she too is not financially sound and money is required for treatment of her parents who are presently under her care and custody. The daughter has asserted that she too is not financially sound and money is required for treatment of her parents who are presently under her care and custody. Ordinarily, this Court would have directed the competent authority to consider the matter afresh, but considering the undisputed advance age of the petitioner and his wife, i.e., 82 & 80 years respectively alongwith the affidavit of the daughter that her aged parents are under her care and custody, coupled with the fact that no male descendents are reported to be in the family, this Court is satisfied that on the allegations made in the supplementary-affidavit dated 24.2.2018 and on account of advance age of the petitioner and his wife, the application in question is liable to be allowed under Clause (c) of Section 98 of the Code. 10. The writ petition is allowed. The orders dated 20.2.2009 and 10.3.2010 are set aside/quashed. The application under Section 98 is allowed. The Collector, Gautambudh Nagar shall pass necessary consequential order forthwith. 11. Service of the certified copy of the order upon the respondent concerned shall constitute sufficient notice to submit a compliance report. List on 18.5.2018 in Chambers at 4.00 p.m. alongwith a compliance report.