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2023 DIGILAW 1754 (ALL)

Meenu Seth v. State of U. P.

2023-07-21

SAURABH SRIVASTAVA

body2023
JUDGMENT : 1. Heard Sri Adya Prasad Tewari, learned counsel for the petitioner and Sri Dhananjai Singh, learned Standing counsel appearing on behalf of respondent no. 1, 2 and 8 along with Sri Pankaj Kumar Gupta, learned counsel for Gaon Sabha who has been especially called upon by the Court for assisting the matter related to the complex question of law raised by learned counsel for the petitioner. 2. The present petition has been instituted for challenging the order dated 23.06.2022 passed by respondent no. 2 under the proceedings initiated under Section 104 and 105 of U.P. Revenue Code, 2006. While adjudicating the proceedings instituted by an alien person one Mr. Santosh Kumar Jaiswal who has been arrayed as respondent no. 3 in the instant petition, who is having a role as an informant before the respondent no. 2 for transfer which has been made by respondent no. 4 to 7 in favour of the petitioner, for treating it being void in terms of Section 104 and 105 of the U.P. Revenue Code of 2006, making it clear that the petitioner being purchaser of plot no. 4, 5-m, 6 and 7 situated at Gram BusanpurTehsil Kerakat, District Jaunpur by way of lease deed instituted on 19.12.2018 executed by respondent no. 4 to 7 and as such he had never been a party under the proceedings initiated by respondent no. 2 under Section 104 and 105 of the U.P. Revenue Code, 2006. 3. During pendency of the proceedings in shape of case no. 2264 of 2021 (computerized case no. D2021143600002264) (Santosh Kumar Jaiswal Vs. Meenu Seth and others) a report has been called for and the same was submitted by Sub-Divisional Officer, Tehsil-Kerakat, District Jaunpur, on dated 30.07.2021 which was in supplement and addition to the report submitted by Assistant Collector on dated 28.06.2021, wherein it is crystal clearly mentioned that the name of respondent no. 4 to 7 has been entered in the revenue records as a Bhumidhar having transferable rights under Section 67(1) of the U.P. Revenue Code, 2006, only on 6.7.2020 i.e. after the commencement of lease deed executed by respondent no. 4 to 7 in favour of the petitioner. 4. While arriving over the conclusion drawn by the respondent no. 4 to 7 has been entered in the revenue records as a Bhumidhar having transferable rights under Section 67(1) of the U.P. Revenue Code, 2006, only on 6.7.2020 i.e. after the commencement of lease deed executed by respondent no. 4 to 7 in favour of the petitioner. 4. While arriving over the conclusion drawn by the respondent no. 2, the vital fact which is also mentioned that the prerequisite condition for transferring the land pertaining to the person belonging to Scheduled Caste community to a person belonging to non-Scheduled caste community is the permission granted by the Collector which has not been obtained by the petitioner. Several other factual and technical grounds have been mentioned and discussed with the rival submissions submitted by the respondent no. 4, 5, 6 and 7 during adjudication of case no. 2264 of 2021 and ultimately the same was decided with the specific finding recorded in the concluding para of the order dated 23.06.2022 which impugned the present petition is quoted herein below : 5. By bare perusal of the above mentioned para of the impugned order which clearly shows that the transfer made by respondent no. 4, 5, 6 and 7 in shape of lease deed in favour of the petitioner has been declared void on the precise ground that no permission has ever been sought by the respondent no. 4, 5, 6 and 7 from the Collector before executing the transfer deed in favour of the petitioner. 6. Learned counsel for the petitioner challenged the order dated 23.06.2022 under Article 226 of the Constitution of India on several other grounds inter alia that the proceedings initiated under Section 104 and 105 by the respondent no. 2 is without jurisdiction and as such the respondent no. 2 was not competent in pursuance to the statutory provisions contained under Section 104, 105 of U.P. Revenue Code, 2006, read with Rule 103 of U.P. Revenue Code Rules, 2016. 7. While examining the arguments as raised by the learned counsel for the petitioner, it is necessary to quote the Section 104 and 105 of the U.P. Revenue Code, 2006 along with Rule 103 of the U.P. Revenue Code Rules, 2016 as under : "Section 104. 7. While examining the arguments as raised by the learned counsel for the petitioner, it is necessary to quote the Section 104 and 105 of the U.P. Revenue Code, 2006 along with Rule 103 of the U.P. Revenue Code Rules, 2016 as under : "Section 104. Transfer in contravention of this Code to be void.- Every Lease or transfer of interest in any holding or part thereof made by a bhumidhar or any asami in contravention of the provisions of this Code shall be void. Section 105. Consequences of transfer by Bhumidhar in contravention of the Code.-(1) Where transfer of interest in any holding or part made by a Bhumidhar is void under Section 104, the following consequences shall, with effect from the date of such transfer, ensure, namely: (a) the subject-matter of such transfer shall vest in the State Government free from all encumbrances; (b) the tree, crops, wells and other improvements, existing on such holding or part shall vest in the State Government free from all encumbrances; (c) the interests of the transferor and the transferee in the properties specified in Clauses (a) and (b) shall stand extinguished; (d) the extinction of interest of the transferor under Clause (c) shall operate to extinguish the interest of any asami holding under him. [(e) the provisions of this section shall no apply to any lease made under Section 94.] (2) Where any land or other property has vested in the State Government under sub-section (1) it shall be lawful for the Collector to take over possession of such land and other property, and to direct that any person occupying such land or property be evicted therefrom, and for that purpose, the Collector may use or cause to be used such force as may be necessary and the provisions of Section 59 mutatis mutandis shall apply to such property. Rule 103. Transfer in contravention of the provisions of the Code (Section 105).- (1) If a bhumidhar or an asami has transferred his interest in any holding or part thereof which is void under Section 104, the Lekhpal shall promptly submit a report to the Sub-Divisional Officer containing particulars specified in Rule 97(1). Rule 103. Transfer in contravention of the provisions of the Code (Section 105).- (1) If a bhumidhar or an asami has transferred his interest in any holding or part thereof which is void under Section 104, the Lekhpal shall promptly submit a report to the Sub-Divisional Officer containing particulars specified in Rule 97(1). (2) On receipt of the report of the Lekhpal under sub-rule(1), or on information received otherwise, the Sub-Divisional Officer shall call upon the parties to the transfer to show cause, why action under Section 104 read with Section 105 should not be taken in respect of the land in question. (3) After hearing the parties and making such inquiries as may be considered necessary, if the Sub-Divisional Officer is satisfied that the transfer in question is void under Section 104, he shall declare that: (a) the subject matter of such transfer shall vest in the State Government; (b) the trees, crops, well and other improvements existing on the holding or part shall vest in the State Government free from all encumbrances; and (c) the interests of the transferor as well as of the transferee stood extinguished, from the date of such transfer. (4) The Sub-Divisional Officer shall direct that the revenue records should be corrected accordingly and where the transfer in contravention of the provisions of the Code relates to a part of the holding, he shall also fix land revenue in respect of the part left with the transferor in accordance with Chapter XI of these Rules. (5) Every order of the Sub-Divisional Officer under this Rule shall be endorsed to the Samiti for necessary action. (6) Where any property referred to in Section 105 has vested in the State Government, the Collector may evict any person in unauthorised occupation of such property and deliver possession thereof to the Gram Panchayat concerned." 8. (5) Every order of the Sub-Divisional Officer under this Rule shall be endorsed to the Samiti for necessary action. (6) Where any property referred to in Section 105 has vested in the State Government, the Collector may evict any person in unauthorised occupation of such property and deliver possession thereof to the Gram Panchayat concerned." 8. Sri Adya Prasad Tewari, learned counsel for petitioner sought the attention of the Court over the procedural part of the Section 104 and 105 which is clearly demonstrated under Rule 103 wherein, it is the Sub-Divisional Officer who will receive the report submitted by concerned Lekhpal or on information received otherwise will call upon the parties to the transfer, to show cause why action under Section 104 read with Section 105 of U.P. Revenue Code, 2006, should not be taken in respect of the land in question, meaning thereby if in any case transfer of any land has to be declared as void the competent authority for adjudication of the same shall be the Sub-Divisional Officer only. Moreover, for direction to correct the revenue records in accordance with the adjudication made by the Sub-Divisional Officer, the Sub-Divisional Officer will direct that the revenue records should be corrected accordingly. 9. The instant matter which has been pointed out by learned counsel for the petitioner that the entire adjudication initiated over the application submitted by respondent no. 3 has been initiated by the respondent no. 2 who is the Collector/District Magistrate, District Jaunpur, and as such the proceedings initiated by the respondent no. 2 is without jurisdiction and the same is liable to be set aside. 10. Per contra, Sri Dhananjai Singh, learned Standing counsel and Sri Pankaj Kumar Gupta, learned counsel for Gaon Sabha vehemently opposed the prayer as made in the petition as well as rebutted the stand taken up by learned counsel for the petitioner on the ground that Section 104 and 105 are the provisions contained in the U.P. Revenue Code, 2006, wherein outcome of the same that there shall be no appeal lies and as such it was always the prerogative of the immediate superior authority to exercise the power so contained and vested with the subordinate authority where no appeal lies. And as such the action in shape of initiation of proceedings under Section 104 and 105 of U.P. Revenue Code, 2006, carried out by respondent no. And as such the action in shape of initiation of proceedings under Section 104 and 105 of U.P. Revenue Code, 2006, carried out by respondent no. 2 is well under its own jurisdiction and the same is justified and no writ petition is maintainable for challenging the order passed by the Collector under Section 104 and 105 of the U.P. Revenue Code, 2006. More so, both the learned counsels for the respondents argued vehemently that the writ petition is not maintainable on the ground of alternative remedy available before the petitioner under Section 210 of the U.P. Revenue Code, 2006. 11. Sri Dhananjai Singh, learned Standing counsel also submitted that by mere reading of the essence of Section 104 and 105 of U.P. Revenue Code, 2006, read with Rule 103 of U.P. Revenue Code Rules of 2016, it is practically not feasible that the report or the case shall be submitted by the Collector and the same shall be adjudicated by the Sub-Divisional Officer who is the subordinate authority to the Collector and thereafter if any adjudication has been made by the Sub-Divisional Officer the execution part of the order/determination drawn by the Sub-Divisional officer, the same has to be executed by the Collector is also not feasible practically. For substantiating his arguments, Sri Dhananjai Singh, learned Standing counsel referred the sub-rule (6) of Rule 103 of U.P. Revenue Code Rules, 2016 wherein it is mentioned that any property referred to in Section 105 has vested in the State Government, the Collector may evict any person in unauthorised occupation of such property and deliver possession thereof to the Gram Panchayat concerned. 12. 12. For supporting the stand taken up by learned Standing counsel, Sri Pankaj Kumar Gupta further added the definition clause mentioned under sub-section (8) of Section 4 of the U.P. Revenue Code of 2006 wherein Collector means an officer appointed as such by the State Government under sub-section (1) of Section 12 and shall include- (a) an Additional Collector appointed by the State Government under sub-section (2) of the said Section; and (b) an Assistant Collector of the first class empowered by the State Government by notification to discharge all or any of the functions of a Collector under this Code; along with Section 13(3) which deals that the officers referred to in sub-section (1) or sub-section (2) shall exercise all the powers and discharge all the duties conferred and imposed upon them by or under this Code or any other law for the time being in force, subject to the control of the Collector. 13. Sri Pankaj Kumar Gupta, learned counsel for Gaon Sabha demonstrated that it is the Collector who is all the time empowered to exercise the powers conferred with the Assistant Collector first class and the same has been exercised in the instant matter by the Collector, District Jaunpur while passing the order which impugned the present petition and as such the entire action carried out by respondent no. 2 is well under the jurisdiction defined and guarded by Section 4(8) along with Section 13(3) of the U.P. Revenue Code of 2006. 14. For elaborating the arguments, Sri Pankaj Kumar Gupta, learned counsel for Gaon Sabha sought the attention of the Court over Section 19 and 215 of the U.P. Revenue Code, 2006 which is quoted herein below : "Section 19. Other power of Revenue Officers.-(1) When any power is exercisable or any duty is dischargeable by any officer or authority under this Code, such power or duty may be exercised or discharged by any superior officer or authority as well. (2) The revenue officers appointed under this Code shall, subject to the control of the State Government, exercise such other powers and discharge such other duties as the State Government may, by any general or special order, direct. Section 215. (2) The revenue officers appointed under this Code shall, subject to the control of the State Government, exercise such other powers and discharge such other duties as the State Government may, by any general or special order, direct. Section 215. Orders not to be invalid on account of irregularity in procedure.- No order passed by a revenue officer shall be reversed or altered in appeal or revision on account merely of any error, omission or irregularity in the summons, notice, proclamation, warrant or order or other proceedings before or during any inquiry or other proceedings under this Code, unless such error, omission or irregularity has in fact occasioned a failure of justice." By way of referring the above mentioned sections, Sri Pankaj Kumar Gupta, justified the order passed by Collector while exercising the power vest with the Sub-Divisional Officer defined under Rule 102 of U.P. Revenue Code, Rules 2016 which is quoted herein below : "Rule 102. Grant of permission by Sub-Divisional Officer (Sections 101 and 102).-(1) On receipt of an application under rule 100 or rule 101, the Sub-Divisional Officer shall issue notice to the bhumidhar or the Gram Panchayat concerned to show cause why the permission for exchange should not be granted. (2) The Sub-Divisional Officer shall also cause to be calculated the rental value of the land given or received in exchange and may also hear the lessees, mortgagees or other holders of the encumbrances, if any. (3) If after making necessary inquiries, the Sub Divisional Officer is satisfied that the parties are agreeable to such exchange and the required terms and conditions are fulfilled, he shall grant the requisite permission and shall direct the record of rights to be corrected accordingly. (3) If after making necessary inquiries, the Sub Divisional Officer is satisfied that the parties are agreeable to such exchange and the required terms and conditions are fulfilled, he shall grant the requisite permission and shall direct the record of rights to be corrected accordingly. (4) If the application is in respect of the land referred to in clause (b) of sub-section (1) and if it is reserved for planned use or is land in which bhumidhari rights do not accrue and the Sub-Divisional Officer is satisfied that the permission for exchange is in the interest of the applicant and is also in the public interest, he may refer the matter to the State Government for appropriate order and if the permission is granted by the State Government, the Sub Divisional Officer shall direct the Records of Rights (Khatauni) to be corrected accordingly.” It is the argument raised by learned counsel for Gaon Sabha that the sole ground for institution of the present petition is being defeated under Section 19 of the Code of 2006 which enables the superior authority to exercise the power conferred with the subordinate authority and as such if the application preferred by the petitioner has been denied while exercising the power under Rule 102, 103 of Rules of 2016, the same cannot be assailed on the ground of the procedural error which is barred by Section 215 of the Code of 2006. 15. Learned Standing counsel also supported the order dated 23.06.2022 on the issue that respondent no. 2 decided the issue which is related to Section 98 of the U.P. Revenue Code, 2006 wherein it is only the Collector who is empowered to pass specific order, if any permission has been sought by the person belonging to Scheduled Caste community for seeking permission to transfer the land over which his rights have been incurred as Bhumidhar with transferable rights. In the instant matter there was no as such permission sought by the respondent no. 4, 5, 6 and 7 to transfer their land in favour of the petitioner and as such in absence of any proper permission accorded by the respondent no.2 the transfer made by respondent no. 4, 5, 6 and 7 has been held as void under Section 104 and 105 of the U.P. Revenue Code of 2006. 16. 4, 5, 6 and 7 to transfer their land in favour of the petitioner and as such in absence of any proper permission accorded by the respondent no.2 the transfer made by respondent no. 4, 5, 6 and 7 has been held as void under Section 104 and 105 of the U.P. Revenue Code of 2006. 16. After having the rival submissions extended by learned counsel for the parties, certain questions have been determined for concluding the controversy as raised through the instant petition which is less in fact and more in legal aspects and the same are as under : (i) whether Collector is empowered to adjudicate the proceedings under Section 104/105 of the U.P. Revenue Code, 2006 specifically when there is attraction of Section 98 of the U.P. Revenue Code of 2006? (ii) if any order is passed without jurisdiction while declaring the transfer as void under Section 104/105 of U.P. Revenue Code, 2006 whether the same shall be subject to final adjudication under Section 210 of Code of 2006? (iii) attraction of Section 4(8), Section 13(3) of U.P. Revenue Code of 2006 in reference to Rule 103 of U.P. Revenue Code Rules 2016 and the impact thereof? 17. However, with regard to answering the first question framed above shall be dependent upon the entire proceedings whatsoever has been initiated in shape of case no. 2264 of 2021 and the fate of the instant petition but the same is necessary to be answered at first. 17. However, with regard to answering the first question framed above shall be dependent upon the entire proceedings whatsoever has been initiated in shape of case no. 2264 of 2021 and the fate of the instant petition but the same is necessary to be answered at first. Considering the argument as raised by learned counsel for the petitioner, the statutory provision as defined under Rule 103 of the U.P. Revenue Code Rules 2016, there is hardly any ambiguity which has been mentioned under Rule 103(3) of the same rules, it is the Sub-Divisional Officer who is empowered to declare the transfer in question as void, if it is, under Section 104 and as such the submission made by learned Standing counsel as well as Sri Pankaj Kumar Gupta by way of taking reliance to the Section 4(8) as well as Section 13(3) is not sustainable, since the essence of the power vested with the Collector can be delegated or transferred or notified to the Assistant Collector, Sub-Divisional Officer by special notification issued by the State, but under the control of the Collector does not prevail Collector to exercise the power as codified under the Statute specifically for the Sub-Divisional Officer and as such the provisions cannot be read as a reversible theory which was tried to be demonstrated by learned Standing counsel. It is only the Sub-Divisional Officer who has been specifically mentioned under the Rule 103(3) U.P. Revenue Code Rules, 2016 for dealing with the provisions contained under Section 104 and 105 of the U.P. Revenue Code of 2006. 18. The second issue as framed above with regard to maintainability of the outcome of the order from the proceedings of Section 104 and 105 of the U.P. Revenue Code of 2006 has expressly attained the finality after the proceedings under Section 210 since the order, if not passed by the authority who is having the jurisdiction the same can be apprised by way of filing revision before the authority as defined under Section 210 of the U.P. Revenue Code of 2006. In the instant matter the order which impugned the present petition has been challenged, whereupon the interim protection has been granted by this Court and after exchange of pleadings and after the passage of time, plea and the ground taken up by learned Standing counsel with regard to maintainability of the instant petition on the ground of alternative remedy will now be adversely affecting the legitimate right of the petitioner which has been come up before this Court for specific consideration over the competency of the authority adjudicated upon while dealing with the Section 104 and 105 of the U.P. Revenue Code of 2006 and as such the instant petition has to be adjudicated only on the test of competency as well as on the ground of the legal provisions which enable the authority to act upon while considering the nature of transfer case under Section 104 and 105 of the U.P. Revenue Code of 2006. 19. The third question framed hereinabove is by and large answered in the first and second question as framed and the same need not to be dealt separately since it is crystal clear with concurrent demonstration of the legal issue by learned counsel appearing for the rival parties which precisely made it clear that it is the Sub-Divisional Officer who is the competent authority to adjudicate any proceedings initiated in respect to Section 104/105 of the U.P. Revenue Code, 2006, however the arguments extended by Sri Pankaj Kumar Gupta, learned counsel for Gaon Sabha for consideration of Section 19 and 215 of Code of 2006 are concerned, it is to clarify that the power vest with the higher authority for exercising the duties as well as power defined under the Code of 2006 conferred with the subordinate authority is in special circumstances and the same cannot be exercised in a normal and usual manner, if that be so, the reasons for exercising the powers attracting Section 19 of Code of 2006 must be with plausible and satisfactory reasons recorded by the superior authority while exercising the powers of the subordinate authority. The pious intention of the legislature at the time of framing the Section 19 in U.P. Revenue Code, 2006 which is by and large a special and extraordinary powers conferred with the superior authority was not available in the U.P.Z.A. & L.R. Act, 1950 was only to ensure the dispensation of justice not for using the same in a normal and usual manner and as such while exercising the power under Section 19 of the U.P. Revenue Code, 2006, it is the essential ingredient of the order passed by superior authority by way of recording the reasonings that under which circumstances, the power of Section 19 has been exercised by the superior authority once the same vest with the subordinate authority. 20. In respect to the submission made by learned Standing counsel that with regard to feasibility of the practicality involved in the manner where the adjudication will be made by the Sub-Divisional Officer and the same shall be executed by the Collector, it is to clarify that Sub-Divisional Officer is the adjudicating authority in pursuance to Section 104, 105 of the U.P. Revenue Code of 2006 wherein the procedure has been defined under Rule 103 of the U.P. Revenue Code Rules of 2016. It is not the Collector who will execute the orders or the adjudication made by Sub-Divisional Officer rather the transfer of property which has been declared as void by the Sub-Divisional Officer shall be vest with the State. There is hardly any doubt that it is the Collector who is the designated officer in the District as State and all the performance commenced under the category and nomenclature of the State empowered the District Magistrate/Collector to act accordingly and as such if the power and the property or any embodied adjudication carry the word State that directly demonstrate in the individual manner is the Collector inside the District. Once the property which has been declared by the Sub-Divisional Officer as void shall be vested with the State it is only the Collector who will take the possession of the same as under the capacity of the State itself and the same shall be further handed over in favour of the Gaon Sabha by the State that is by the Collector himself and as such the ground taken up by learned Standing counsel is hereby clarified that it is not the execution it is only the vesting the power of State into the Collector for receiving the property which has been declared during transfer as void and the same has been provided under Rule 103(6) of the U.P. Revenue Code Rules of 2016. 21. In view of the aforementioned facts and circumstances, and the substantial arguments extended by all the three learned Advocates which provided the space to the Court and sufficient assistance to arrive over the conclusion which is as under : (i) order dated 23.06.2022 is hereby set aside being passed and adjudicated contrary to the proceedings initiated under Section 104/105 of U.P. Revenue Code 2006 by the respondent no. 2 being not competent under the provisions mentioned under the Code of 2006 and the impact and effect of the adjudication drawn by respondent no. 2 shall also have no bearing for any purpose whatsoever. 22. Before parting with the conclusion drawn by this Court, I personally express my gratitude to Sri Adya Prasad Tewari, learned counsel for petitioner and Sri Pankaj Kumar Gupta, learned counsel who appears on behalf of Gaon Sabha but in the instant matter he has been especially called for assistance to the Court being the expert in the matters pertaining to revenue and civil jurisdiction at the same time Sri Dhananjai Singh, learned Standing counsel also extended his able assistance for supporting the stand taken up by the State authorities which was helpful for ultimately deciding the instant petition. 23. Writ petition stands allowed accordingly.