Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 2409 (ALL)

Chandra Shekhar v. State of U. P.

2024-11-25

MANISH KUMAR NIGAM

body2024
JUDGMENT : Manish Kumar Nigam, J. 1. Heard Sri Ramesh Pundir, learned counsel for the petitioners, Shri Abhishek Shukla, learned Additional Chief Standing Counsel for the State Respondents and Sri Sunil Kumar Singh, learned counsel for Respondent No. 4. 2. The instant writ petition has been filed seeking following relief :- "Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 12.08.2016 passed by the Additional Collector (Administration), Gautam Budh Nagar in Case No. 0506 of 2016, Computer Case No. 2016112700506 (State vs. Smt. Madhvi Maheshwari and others) under sections 166/167 U.P.Z.A. & L.R. Act, 1950 during the pendency of the instant writ petition (Annexure No.1 to this writ petition)." 3. Sri Ramesh Pundir, learned counsel for the petitioners submits that the property in dispute i.e. the subject matter of the sale deed dated 01.04.2008 and 17.03.2008 have been illegally vested in the State under the impugned orders passed by the Collector in proceedings under Section 167 of the U.P.Z.A. & L.R. Act, 1950 inasmuch as the orders are completely without jurisdiction in view of the law laid down by a Coordinate Bench of this Court in the Case of Sudhir Kumar Jain Vs. State of U.P. and others , 2023 (161) RD 222 inasmuch as in the said decision it has been held that the Collector is not competent to pass an order vesting the land in the State and it is only the Assistant Collector First Class who is vested with the said powers. 4. Sri Abhishek Shukla, learned Additional Chief Standing Counsel appearing for the State/Respondents and also Sri Sunil Kumar Singh, learned counsel for the Gaon Sabha do not dispute the proposition canvassed by Sri Ramesh Pundir, learned counsel for the petitioners. 5. I have heard learned counsel for the parties and have perused the record as also the decision reported in 2023 (161) RD 222 relied upon by the learned counsel for the petitioners. Upon perusal of the decision reported in 2023 (161) RD 222 , I find that the said decision is based upon a decision of this Court reported in 2012 (116) RD 69 ( Rakesh Kumar Vs. State of U.P. and others ) decided on 28.02.2012 . Upon perusal of the decision reported in 2023 (161) RD 222 , I find that the said decision is based upon a decision of this Court reported in 2012 (116) RD 69 ( Rakesh Kumar Vs. State of U.P. and others ) decided on 28.02.2012 . This Court in the case of Rakesh Kumar (Supra) while considering the provisions of Section 3 (4) of the U.P.Z.A. & L.R. Act as well as the provisions of Sections 14 , 14-A and 15 of the UP Land Revenue Act has held that the Assistant Collector, First Class, is the Competent Authority to decide any transaction of agricultural land to be void under Section 166 of the Act, it is in contravention of Section 15 4 and 157-A of the Act or for that any provision of the Act. The decision further held that the Collector or Additional Collector had no jurisdiction to pass the order in the proceedings under Section 166 /167 of U.P.Z.A. & L.R. Act. The relevant portion of the decision is being quoted hereunder: "21. A plain and simple reading of section 3(4) of the Act and sections 14, 14-A and 15 of the U.P. Land Revenue Act makes it clear that the Collector includes Additional Collector as well as Assistant Collector and is authorised to discharge the powers and duties conferred upon him under the Act or in any other law in force. The aforesaid Acts do not confer upon the Collector the power to declare a transaction to be void under section 166 of the Act being violative of section 154 or 157A of the Act. Such power is vested only in the Assistant Collector First Class who may be authorised by the State Government to discharge all or any of the functions of the Collector but converse to it is not permitted. The duties and functions assigned therein to the Assistant Collector First Class under law are not to be discharged by the Collector even though he may be the controlling authority of the Assistant Collectors First Class. He is not authorised to take over the functions assigned to the Assistant Collectors. Thus, Collector is not supposed to discharge the functions specifically assigned to the Assistant Collectors under the above two Acts including that of declaring a transfer to be void. 22. He is not authorised to take over the functions assigned to the Assistant Collectors. Thus, Collector is not supposed to discharge the functions specifically assigned to the Assistant Collectors under the above two Acts including that of declaring a transfer to be void. 22. Apart from the above the initial order which was challenged in appeal before the Additional Commissioner was passed by the Assistant Collector First Class and, therefore, also on the order being set aside in appeal, the matter ought to have been remanded to the Assistant Collector First Class. 23. Accordingly, I answer the question by holding that the Assistant Collector First Class is the competent authority to declare any transaction of agricultural land void under section 166 of the Act, if it is in contravention of sections 154 and 157A of the Act or as a matter of fact, of any other provision of the Act. 24. In such a situation, the Additional Commissioner committed an error of law in remanding the matter to the Collector. 25. The writ petition is accordingly allowed and the order of the Additional Commissioner dated 27.8.2010 is modified to the extent that the matter stands remanded to the Assistant Collector First Class in place of the Collector as directed." 6. The proceedings under Section 166 /167 of the U.P.Z.A. & L.R. Act, are now governed by the Provisions of Section 104 of the U.P. Revenue Code, 2006 and the Rule 103 of the U.P. Revenue Code Rules, 2016. The Rule 103 of the U.P. Revenue Code Rules, 2016 are reproduced hereunder: "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. 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; 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." 7. A perusal of the Rule 103 of the U.P. Revenue Code Rules, 2016 and considering the ratio of the decision of this Court in Rakesh Kumar (Supra) the Sub Divisional Officer has been vested with the powers to pass the order in proceedings under Rule 104 of the U.P. Revenue Code Rules 2016, issue relating to vesting of the land in the State Government. In the instant case admittedly the impugned order has been passed by Respondent No.2 - Additional Collector (Administration) Gautam Buddh Nagar, vesting the land in the State/Gaon Sabha in the proceedings under Section 166 /167 of the U.P.Z.A. & L.R. Act, 1950 now Section 104 of the U. P. Revenue Code, 2006 and as such cannot be sustained in the eye of law. 8. 8. In view of the above the impugned order dated 12.08.2016 passed by the Respondent No.2 - Additional Collector (Administration) Gautam Buddh Nagar in Case No. 0506 of 2016 being Computerized Case No. 2016112700506 (State Vs. Smt. Madhvi Maheshwari & others) under Section 166 /167 of the U.P.Z.A. & L.R. Act, 1950 is set aside the writ petition stands allowed. 9. The matter is remitted back for fresh decision of Case No. 0506 of 2016 being Computerized Case No. 2016112700506 (State Vs. Smt. Madhvi Maheshwari & others) by the Competent Authority after affording proper opportunity of hearing to the petitioner as well as other parties to the dispute strictly in accordance with law with all expedition.