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2023 DIGILAW 1990 (ALL)

Dayali v. Additional Commissioner (First)

2023-08-18

SAURABH SRIVASTAVA

body2023
JUDGMENT : Saurabh Srivastava, J. Heard Sri Chandra Prakash Kushwaha, learned counsel for the petitioners and Sri Dinesh Kumar Tiwari, learned Standing Counsel for the State-respondent Nos. 1,2 and 4 as well as Sri Ambuj Srivastava, Advocate holding brief of Sri Achal Singh, learned counsel for the respondent No. 3. 2. Present petition has been filed with the prayer to quash the order dated 6.3.2023 passed by respondent No. 1 in Case No. 501/122/2013-14, Computer Case No. C20140700001122 (Dayali and others v. U.P. State), under Section 333 of U.P. Z.A. & L.R. Act, 1950 and order dated 30.10.1991 passed by respondent No. 2 in Case No. 458 and further direction be issued to expunge the name of State from Gata No. 872 area 0.595 hectare situated at Village Itawan, Tehsil Rajapur, District Chitrakoot. 3. It is the case of the petitioner that plot Nos. 872 and 3414/1 have been extended as lease way back in the year 1974 in favour of the petitioners' father and name of the father of the petitioners has been recorded in the revenue record as bhumidhar with non transferable right which is apparent from the record of rights appended with the petition. Thereafter, father of the petitioners executed a sale-deed on dated 26.11.1984 in respect of plot No. 3414/1, in pursuance of the registered sale-deed executed by father of the petitioners, mutation proceedings have been initiated by purchaser and the same has been negated vide order dated 30.10.1991 by way of giving categorical findings that the possession held by father of the petitioners over the plot No. 3414/1 was under the capacity of bhumidhar with non transferable rights and as such, under Section 166 of U.P. Z.A. & L.R. Act, 1950, the sale-deed executed by father of the petitioners became void and plot Nos. 872 and 3414/1 vested with the State. In pursuance of the order dated 30.10.1991, revenue records have been modified in shape of entering the name of the State against plot No. 3414/1. 4. 872 and 3414/1 vested with the State. In pursuance of the order dated 30.10.1991, revenue records have been modified in shape of entering the name of the State against plot No. 3414/1. 4. Being aggrieved with the order dated 30.10.1991, petitioners preferred a revision under Section 333 of U.P. Z.A. & L.R. Act, 1950 after demise of their father with categorical stand that once the sale-deed has been executed by father of the petitioners only in respect of plot No. 3414/1, the order passed by respondent No. 2 with regard to plot No. 872, cannot be vested with the State, but the grounds mentioned in the revision have not been accepted by the respondent No. 1 and the same has been culminated into order dated 6.3.2023 which impugned the present petition. 5. Learned counsel for the petitioners raised his arguments on the ground that it is the settled proposition of law that only plot No. 3414/1 which has been put for transfer without having right, only that plot shall be vested with the State under Section 166 of U.P. Z.A. & L.R. Act, 1950 but the other plots if possessed by the lessee, shall not be transferred and as such, the order dated 30.10.1991 passed by respondent No. 2 and the order dated 6.3.2023 passed by respondent No. 1 are illegal and the same are contrary to the provisions contained under Section 166 of U.P. Z.A. & L.R. Act, 1950. 6. Per contra, learned Standing Counsel and learned counsel for Gram Sabha vehemently opposed the prayer as made in the instant petition on the ground that once the illegal action has been carried out in shape of transferring the land through registered sale-deed for the plots which have been already extended in shape of lease in favour of the father of the petitioners then the action initiated by respondent No. 2 was justified and the petitioners/father of the petitioners are having no right to retain the plots as extended in shape of lease. 7. Learned counsel for petitioners substantiated his arguments on the basis of Rule 103 of U.P. Revenue Code Rules, 2016 which is reproduced hereinbelow : ''103. 7. Learned counsel for petitioners substantiated his arguments on the basis of Rule 103 of U.P. Revenue Code Rules, 2016 which is reproduced hereinbelow : ''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 subrule (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. While fine scrutiny of Rule 103 as reproduced above, is having clear distinction between holding or part under Rule 103 (3)(b) and thereafter same has been further clarified under Section 103(4) which clearly speaks about transfer in contravention of provisions of the Code relates to part of the holding, meaning thereby, if in case, any person belongs to Scheduled Caste community, has been extended lease of a particular plot and after passage of time, rights have been incurred in favour of person belongs to Scheduled Caste community as bhumidhar with transferable rights for the same plot and recorded in the revenue records and in case, part of the same plot has been transferred in contravention with the provisions contained under Section 98 of U.P. Revenue Code, 2006 and the same has been determined against the person belonging to Scheduled Caste community, the entire plot shall not be vest with the State, whereas only part of the plot which has been put to transfer in contravention of the provisions defined under Section 98 of U.P. Revenue Code, 2006 and provisions available in Rule 103 of U.P. Revenue Code Rules, 2016, shall vest with the State but at the same time, other left out portion of the same plot, shall remain with the recorded tenure holder belongs to Scheduled Caste community. 9. In view of the abovementioned facts and legal grounds, the order dated 30.10.1991 passed by respondent No. 2 and the order dated 6.3.2023 passed by respondent No. 1 are being modified to the extent that only plot No. 3414/1 situated at Village Itawan, Tehsil Rajapur, District Chitrakoot, shall be vested in the State but the plot No. 872M shall be intact in favour of the petitioners as bhumidhar with non transferable rights. 10. The instant petition is partly allowed accordingly.