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2019 DIGILAW 1471 (ALL)

Kusum v. State of U. P.

2019-05-29

RAJIV JOSHI

body2019
JUDGMENT : RAJIV JOSHI, J. 1. In these four writ petitions the facts as well as the point arising for determination, being identical, they all are being decided by this common judgment. Smt. Kusum is the petitioner in all these petitions while respondent No. 5 is different one. 2. Heard Sri Deepak Kaushik, learned counsel for the petitioner, Sri A. K. Umrao, Advocate holding brief of Sri M.N. Singh, learned counsel for the respondent and Sri Anuj Kumar, learned counsel for respondent No. 4. 3. The question that poses for consideration in these petitions is as to whether, the permission of the Assistant Collector is necessary under Section 157-AA of the U.P. Act No. 1 of 1951, if the transfer is made to a person belonging to Scheduled Castes? 4. Briefly stated, the relevant facts of the case are that one Buddhu son of Newla was allotted land of Khata No. 1240 measuring area 0-10-0, Khata No.1264 measuring area 1-4-0 and Khata No. 1270 measuring area 0-5-0 on 02.11.1975 for agricultural purposes. Budhu had five sons namely Satish, Dharm Raj, Dharm Pal, Soraj and Pappu. After the death of Buddhu, name of his son Satish -Respondent No.5 in this writ petition was recorded in the revenue record who executed a registered sale deed in favour of his wife Smt. Kusum (petitioner in all the writ petition) on 12.11.2010. Similarly, Respondent No. 5 in other writ petitions namely Dharm Raj, Dharm Pal and Soraj, all sons of Buddhu, have executed registered sale deeds in favour of petitioner on the same date. 5. The proceeding was initiated against the petitioner by issuing a notice under Section 157-AA of the U.P. Act No. 1 of 1951 (hereinafter referred as "Act, 1951) on the ground that the sale deed was executed by respondent No. 5 in favour of petitioner who is the wife of respondent No. 5 and sister-in-law of respondent no. 5 in connected petitions, without obtaining any permission from the concerned collector as they become bhumidhar under Section 131- B (1) of the Act, 1951. 6. The petitioner in all the writ petitions having received the above notice on 23.04.2011, filed an objection before the concerned authorities. 5 in connected petitions, without obtaining any permission from the concerned collector as they become bhumidhar under Section 131- B (1) of the Act, 1951. 6. The petitioner in all the writ petitions having received the above notice on 23.04.2011, filed an objection before the concerned authorities. Ultimately, an order was passed by Assistant Collector (Administration) Meerut on 04.07.2011, by which the objection of the petitioner was rejected and the sale deed in favour of the petitioner was declared to be void having been executed without obtaining permission from the Collector and the land was directed to be vested in the State as per Section 166/167 of the Act. Against that order, a revision was preferred by the petitioner which too was dismissed by the Additional Commissioner (Administration) Meerut Division, Meerut vide order dated 20.10.2011. 7. Both these orders dated 4.7.2011 and 20.10.2011 are impugned in the present writ petitions. 8. Contention of learned counsel for the petitioner is that respondent No. 5 became bhumidhar with transferable rights since ten years period has expired from the date of grant of lease and further that no permission was required since the transfer had been made on 12.11.2010 in favour of the petitioner, who is also a member of Scheduled Caste. Learned Counsel for the petitioner next contends that under Section 157-AA, the permission is required only when the transfer is made in favour of a person other than Scheduled Castes and, therefore, no permission is required if the transfer is made by the person belonging to the same casts. According to the learned counsel, the writ petitions deserve to be allowed by quashing the impugned orders. 9. On the other hand, learned counsel for Goan Sabha submits that the permission under Section 157-AA is necessary as the respondents were lease holders in view of provision of section 131-B of the Act and, therefore, they have to obtain the permission and the impugned orders have rightly been passed by the authorities concerned. 10. I have considered the rival submissions so raised by the counsel for the parties and perused the record. 11. 10. I have considered the rival submissions so raised by the counsel for the parties and perused the record. 11. The issue which arises for determination in these petitions is as to whether for the transfer made under Section 157-AA of the Act by a lease holder belonging to Scheduled Castes in favour of the person who also belongs to the Scheduled Castes, the permission of the Assistant Collector is required or not ?" 12. According to the counsel for petitioner, the permission is required only when the transfer is made to a person belonging to other castes. Learned counsel for petitioner has referred to Clause (1) of Section 157-AA of the Act. 13. In support of his submission, learned counsel for the petitioner has also relied upon a judgment in the case of Ramey Vs. State of UP & Others, 2015 2 ADJ 392 in which it is held that in view of the provisions of Section 157-AA of the Act, in cases where vendor and vendee both belong to Scheduled Caste, permission of the Collector/ Assistant Collector would not be necessary prior to execution of the sale-deed. The relevant paragraphs No. 10 and 11 of the aforesaid judgment are quoted hereinunder:- "10. The undisputed facts are that both the parties to the sale belong to the Scheduled Castes. Section 157-AA provides that no person belonging to the Scheduled Caste and having become a Bhumidhar with transferable rights under Section 131-B shall have the right to transfer land by way of sale, gift, mortgage or lease to a person other than the persons belonging to the Scheduled Castes. Sub Section 4 of Section 157-AA provides that no such transfer shall be made except with the previous approval of the concerned Assistant Collector. 11. In my opinion since both the parties belong to the Scheduled Caste the rigour of Section 157-AA would have no application in the present case and permission of the Collector/Assistant Collector would not be necessary prior to executing the sale deed dated 12.12.2003. In this view of the matter, in my opinion the impugned orders dated 16.01.2006 and 19.01.2007 are both illegal and are therefore quashed." 14. For appreciating the submission of learned Counsel for the petitioner, it is necessary to look into the scheme of the Act with regard to transfer under the U.P. Zamindari Abolition and Land Reforms Act, 1950. In this view of the matter, in my opinion the impugned orders dated 16.01.2006 and 19.01.2007 are both illegal and are therefore quashed." 14. For appreciating the submission of learned Counsel for the petitioner, it is necessary to look into the scheme of the Act with regard to transfer under the U.P. Zamindari Abolition and Land Reforms Act, 1950. Section 131-B provides that bhumidhar with non-transferable rights will become a bhumidhar with transferable rights after ten years. The restriction for transfer of land is contained under Section 157-A and 157-AA, which are being quoted herein below: "157-A. Restrictions on transfer of land by members of Scheduled Castes.- (1) Without prejudice to the restrictions contained in Section 153 to 157, no bhumidhar, or asami belonging to a Scheduled Caste shall have the right to transfer any land by way of sale, gift, mortgage or lease to a person not belonging to a Scheduled Caste, except with the previous approval of the Collector: Provided that no such approval shall be given by the Collector in case where the land held in Uttar Pradesh by the transferor on the date of application under this section is less than 1.26 hectares or where the area of land so held in Uttar Pradesh by the transferor on the said date is after such transfer, likely to be reduced to less than 1.26 hectares. (2) The Collector shall, on an application made in that behalf in the prescribed manner, make such inquiry as may be prescribed. 157-AA. Restrictions on transfer by member of Scheduled Castes becoming bhumidhar under Section 131-B. (1) Notwithstanding anything contained in Section 157-A, and without prejudice to the restrictions contained in Section 153 to 157, no person belonging to a Scheduled Caste having become a Bhumidhar with transferable rights under Section 131-B shall have the right to transfer the land by way of sale, gift, mortgage or lease to a person other than a person belonging to a Scheduled Caste and such transfer, if any, shall be in the following order of preference: (a) landless agricultural labourer, (b) marginal farmer, (c) small farmer; and (d) a person other than a person referred to in Clauses (a), (b) and (c). (2) A transfer in favour of a person belonging to Clause (a) of Sub-section (1) shall be made in order of preference given below. (2) A transfer in favour of a person belonging to Clause (a) of Sub-section (1) shall be made in order of preference given below. If a person referred to in Clause (a) is not available then transfer may be made to a person referred to in Clause (b) of the said sub-section and if a person referred to in Clause (b) is also not available then to a person referred to in Clause (c) of the said sub-section if a person referred to in Clause (c) is also not available then to a person referred to in Clause (d) of the said sub-section in the same order of preference: (a) first, to the resident of the village where the land is situate; (b) secondly, if no person referred to in Clause (a) is available, to the resident of any other village within the Panchayat area comprising the village where the land is situate; (c) thirdly, if no person referred to in Clause (a) and (b) is available, to the resident of a village adjoining the Panchayat area comprising the village where the land is situate. (3) If no person referred to in Sub-section (1) belonging to a Scheduled Tribe is available, the land may be transferred to a person belonging to a Scheduled Caste in the order of preference given in Sub-sections (i) and (2). (4) No transfer under this section shall be made except with the previous approval of the Assistant Collector concerned." 15. The provisions of Section 157-A contains a restriction that no bhumidhar or asami belonging to a Scheduled Caste shall have the right to transfer any land by way of sale, gift, mortgage or lease to a person not belonging to a Scheduled Caste, except with the previous permission of the Collector. 16. Section 157-AA provides that no person belonging to a Scheduled Castes having become a bhumidhar with transferable rights under Section 131-B shall have the right to transfer the land by way of sale, gift, mortgage or lease to a person other than a person belonging to a Scheduled Caste and such transfer shall be in the order of preference as contained in Sub-section (1) of Section 157-AA. 17. There is a clear distinction between the restrictions contained under Section 157-A and Section 157-AA. 17. There is a clear distinction between the restrictions contained under Section 157-A and Section 157-AA. Section 157-A provides that no bhumidhar or asami belonging to a Scheduled Caste can transfer the land to a person not belonging to the Scheduled Caste except with the previous approval of the Collector whereas Section 157-AA contains a clear restriction that a person belonging to Scheduled Caste who have become bhumidhar with transferable rights under Section 131 -B shall have no right to transfer to any person other than person belonging to Scheduled Caste. The transfer under Section 157-AA is permissible only to a person belonging to Scheduled Castes in the order of preference as prescribed in Sub-section (1). Thus, Scheduled Caste cannot transfer the land in favour of a person not belonging to Scheduled Caste in any contingency. Further, this restriction is on reasonable basis since land which has been contemplated under Section 157-AA is a land which is allotted to a person belonging to Scheduled Caste. 18. Sub-Section (4) of Section 157-AA contains an injunction to the effect that no transfer under this section shall be made except with the previous approval of the Assistant Collector concerned. Sub-section (4) is in a very wide terms when it refers to "transfer under this section". This clearly means that it embraces itself all the transfers which are contemplated in Section 157-AA. Thus, even if the transfer is by a Scheduled Caste in favour of a Scheduled Caste, it is fully covered by the restrictions contained under Sub-section (4) of Section 157-AA. In case, the interpretation as put by learned Counsel for the petitioner to Sub-section (4) of Section 157-AA is accepted, then the restrictions put under this Sub-section (4) will be meaningless and redundant. There is valid reason for requiring previous permission of the Assistant Collector. The reason which is deciphered from the scheme of section is, that even the transfer by a bhumidhar belonging to Scheduled Caste to a person belonging to Scheduled Caste shall be in accordance with the preference mentioned in Sub-section (1). 19. A Scheduled Caste who is bhumidhar with transferable right under Section 131-B has no free choice of transfer to any Scheduled Caste of his own choice. The order of preference given under Sub-section (1) has its own object and purpose. 19. A Scheduled Caste who is bhumidhar with transferable right under Section 131-B has no free choice of transfer to any Scheduled Caste of his own choice. The order of preference given under Sub-section (1) has its own object and purpose. The object obviously is that if transfer is made, the said transfer shall first go to landless agricultural labourer and thereafter to marginal farmer. The reason obviously is that the land being a lease land, the rights of a lessee have to be regulated in a manner which may advance the object and purpose of the Act. Thus, the prior approval of the Assistant Collector is contemplated which is obviously to consider and decide as to whether permission can be accorded and the transfer which is sought, is in accordance with the Scheme of Sub-section (1) of Section 157-AA. 20. In view of the discussion made above, this Court is of the considered view that permission is also required when a transfer is made by a person belonging to Scheduled Caste who has become bhumidhar with transferable right under Section 131-B in favour of a person belonging to Scheduled Caste. In the present case, the transfer was made without obtaining previous approval/permission of Assistant Collector concerned. The words "except with the previous approval" used in sub section (4) of section 157-AA, indicates that approval of the Assistant Collector concerned is a condition precedent for such transfer. 21. The judgment in the case of Ramey (Supra) relied on by the counsel for petitioner is on the different facts in which even the mandatory restriction contained in Sub-Section (4) of Section 157-AA, has not been considered. Therefore, any decision delivered without taking into consideration even the mandatory provision, cannot be said to be laying down a good law and hence this Court has no hesitation in holding the said judgment to be per incuriam. 22. In view of the above discussion, there appears to be no illegality or infirmity in the orders impugned dated 4.7.2011 and 20.10.2011 contained in annexure 6 & 8 to the writ petition. 23. In the result, the writ petition lacks merit and is, accordingly, dismissed.