Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 47 (ALL)

Meenu Singh v. State of U. P.

2020-01-06

ANJANI KUMAR MISHRA

body2020
JUDGMENT : Anjani Kumar Mishra, J. 1. Heard Shri Rakesh Pande, learned Senior Advocate for the petitioners and learned Standing Counsel for the State-respondents. The instant writ petition arises out of a case under section 157A of the U.P. Zamindari Abolition and Land Reforms Act and seeks a writ of certiorari for quashing the order dated 6.9.2017 passed by the District Magistrate, Varanasi, whereby he has recalled the permission granted on 5.11.2006 to some members of the Scheduled Caste to execute a sale deed of half share of their land in five plots and has referred the matter for drawing proceedings under sections 166/167 of the U.P. Zamindari Abolition and Land Reforms Act as also the order dated 26.6.2019, whereby the consequential revision has been dismissed. 2. Facts of the case briefly stated are that an application was filed on 20.4.2006 by 12 persons seeking permission to sell plot Nos. 518, 663, 663/1036, 663/1054 and 661/4 area 6 acres. 3. After due enquiry, vide order dated 5.11.2006, the Chief Revenue Officer granted permission for sale of half area of plot Nos. 518 area 0.380 hectare, 663 area 01.465 hectare, 663/1036 area 0.975 hectares, 661/4 area 0.239 hectare, totalling area 3.189 hectares with the condition that within three months of the sale land of equal area would be purchased and proof of such purchase would be furnished to the Court concerned, failing which, the permission would stand cancelled, automatically. 4. It appears that the sale deeds were executed in favour of several persons including the petitioners, consequent to the permission aforesaid. It would be relevant to note that the petitioners are 43 in number. 5. An application for recall of the permission was filed by the respondent No. 5 on 12.11.2013 on the allegations that the sale deed had been executed in excess of their share by the persons, who had obtained permission. In fact portion of the land regarding which permission was obtained had been acquired and that the vendors were left with only 2.33 acres of land. 6. On the restoration application, despite notice, the opposite parties, therein, failed to appear. An ex parte order has been passed against them, which was subsequently recalled and a fresh order has been passed after hearing the parties on 6.9.2017. 6. On the restoration application, despite notice, the opposite parties, therein, failed to appear. An ex parte order has been passed against them, which was subsequently recalled and a fresh order has been passed after hearing the parties on 6.9.2017. Thereby, the permission granted in the year 2006 has been recalled on the ground that the conditions specified in the permission had not been duly complied with, landless then what had been permitted to be sold, had in fact been sold; In any case, the sale deed was in favour of persons, to whom sale had not been permitted. Accordingly, the permission dated 5.11.2006 was annulled. As it was found that the sale deeds were without the requisite permission under section 157A, it was directed that the proceedings under sections 166/167 of the U.P. Zamindari Abolition and Land Reforms Act being instituted and for this purpose, notices be issued to the parties. 7. This order has been affirmed on dismissal of the revision filed by the opposite party vide order dated 6.6.2019. 8. The contention of Counsel for the petitioners, who are the vendee of the persons, who had obtained permission in the year 2006 to execute sale deed, is that the Chief Revenue Officer had no power to impose conditions while granting permission for sale under section 157A of the Act. 9. It has also been submitted that the conditions imposed were contingent conditions and therefore, not valid. In any case, such contingent permission cannot effect third party rights created on the basis of permission for sale, actually granted. In any case, the transferee purchased other land, although later in time and therefore, there was substantial compliance by them, of the conditions mentioned in the permission dated 5.11.2006. 10. It has also submitted that the purchase of land after the sale was made as per the permission dated 5.11.2006 can be a long drawn process determined and affected by the uncertain circumstances. It is possible that no land, is in fact, available for purchase. Therefore, the conditions imposed were not valid conditions. 11. It is lastly contended that the order under section 157A of the Act has been passed ex parte against the petitioners, who were the purchasers and had acquired rights in the land in issue. 12. Learned Standing Counsel has supported the impugned order. Therefore, the conditions imposed were not valid conditions. 11. It is lastly contended that the order under section 157A of the Act has been passed ex parte against the petitioners, who were the purchasers and had acquired rights in the land in issue. 12. Learned Standing Counsel has supported the impugned order. He has also submitted that in case, the areas mentioned in the impugned orders are to be accepted, the tenure holders who sought permission to execute the sale deed in favour of the members not belonging to the Scheduled Caste is correct, they were possessed only of 2.19 hectares of land. The permission granted to them was of half of their share, which comes to 1.09 hectares. Under the circumstances, permission could not have been granted as their holding, post transfer (sale) would stand reduced to less than 1.26 hectares, thus breaching the limit prescribed by the proviso to section 157A(1) of the Act. 13. I have considered the submissions made by learned Counsel for the parties and perused the record. 14. It is not in dispute that a member belonging to the Scheduled Caste is required to obtain prior permission before executing a sale deed of his land to one not belonging to the Scheduled Caste. The said provision, namely, section 157A incorporated in the U.P. Zamindari Abolition and Land Reforms Act, by amendment Act No. 20 of 1982, which had received the assent of the president on 11.5.1982. Moreover, the U.P. Zamindari Abolition and Land Reforms Act is to be found in the 9th Scheduled of the Constitution. The said provision therefore, stands protected by Articles 31A, 31B and 31C of the Constitution of India. 15. Although, it is true that the provision itself, namely, 157A does not talk of any conditions be imposed while granting permission. However, this Court finds that the permission had been sought on the plea that the land proposed to be sold was less fertile and applicants wanted to purchase more fertile land its their parental village. 16. The condition for purchasing land equivalent to the land sold was therefore, not a condition having no nexus with the permission, itself. It was a condition, which was the basis of the application, itself. The persons seeking permission had stated specifically in their application that they wanted to purchase land equivalent to that proposed to be sold in their parental village. It was a condition, which was the basis of the application, itself. The persons seeking permission had stated specifically in their application that they wanted to purchase land equivalent to that proposed to be sold in their parental village. The condition therefore, cannot be said to be invalid or illegal. 17. In any case, the petitioners claim to be vendees on the basis of the sale permission. They have taken benefit of the same and therefore, they are estopped from claiming that part of this permission was invalid. 18. It was not open for anybody either the vendor or the vendee to take benefit of a portion of the permission to challenge the remainder as illegal. In case, it was felt that the conditions imposed were illegal, the same should not have been accepted but as a whole and not just in part. 19. It is equally important to note that the permission, itself specified that in case, the conditions mentioned therein were not complied with, it would stand rescinded or withdrawn, automatically. 20. It is not in dispute that the conditions of purchase of land by the vendors and the requirement of bringing this fact on record of the proceedings under section 157-A of the Act was not complied with. The permission therefore, due to the stipulation therein, stood rescinded, automatically. 21. For the same reason, the Courts below have committed illegality in setting aside the order dated 5.11.2006 granting the permission. The same, in my considered opinion, is an act of over kill. There was no requirement of setting aside or recalling the order dated 5.11.2006, which, on facts admitted on record, and in view of the stipulation therein, stood cancelled, automatically. 22. However, having said that it is a case of over kill, this Court does not see any requirement of interfering with the impugned orders, which merely set aside an order, which in any case, stood rescinded automatically long before the orders impugned were passed. 23. The necessary consequence of non compliance of the conditions imposed by the order dated 5.11.2006 would make the sale deeds in favour of the petitioners, transfers contrary to the provisions of the U.P. Zamindari Abolition and Land Reforms Act, being transfers without requisite permission. 24. 23. The necessary consequence of non compliance of the conditions imposed by the order dated 5.11.2006 would make the sale deeds in favour of the petitioners, transfers contrary to the provisions of the U.P. Zamindari Abolition and Land Reforms Act, being transfers without requisite permission. 24. Under the circumstances, the Courts below have rightly directed initiation of the proceedings under sections 166/167 of the U.P. Zamindari Abolition and Land Reforms Act, as regards, the said sale deeds. Therefore, as on date, no order adverse to the interest of the petitioners has as yet been passed. 25. The instant writ petition is therefore, an attempt to stall the proceedings sought to be drawn against the petitioners. The petition therefore, in my considered opinion, is at the moment, premature. 26. Accordingly, and in view of what has been stated above, this Court does not find any justification to interfere in the matter. 27. The writ petition is hereby dismissed as premature.