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2024 DIGILAW 889 (ALL)

Radhey Shyam v. State of U. P.

2024-03-21

CHANDRA KUMAR RAI

body2024
JUDGMENT Chandra Kumar Rai, J. Heard Mr. Shivendra Nath Singh, Mr. Ram Singh & Mr. Mahesh Prasad Yadav, learned counsel for the petitioners, Mr. Tarun Gaur, learned Standing Counsel for the State-respondents and Mr. Avinash Chandra Srivastava, learned counsel for the respondent- Gram Sabha. 2. Brief facts of the case are that the agricultural lease was granted to one Ramji Lal (father of respondent nos.6 & 7) in respect to Khata No.265, Khasra No.442/1 area 0.648 hectare situated in Village- Mauja, Chiksoli, Tahsil- Chhata, District- Mathura. On the basis of agricultural lease executed in favour of Ramji Lal, the possession was delivered and Ramji Lal was recorded over the plot in question. Due to operation of the law he became bhumidhar with transferable right and recorded accordingly, over the plot in question. Ramji Lal expired leaving behind respondent nos.6 & 7 as his heirs and legal representative. Respondent nos.6 & 7 were accordingly, recorded over the plot in question and after death of their father, respondent no.6 executed a registered sale deed on 10.7.2001 in favour of petitioners' father- Dayoli Ram with respect to his 1/2 share in the aforementioned disputed plot. Respondent no.7 also executed another sale deed for remaining 1/2 share on 14.8.2001 in favour of petitioners' father. Petitioners' father expired on 23.11.2006 leaving behind the petitioners as his heir and legal representative. On the basis of sale deed executed by respondent nos.6 & 7 petitioners' father was recorded and after death of petitioners' father, petitioners were recorded and remained in possession over the same. A complaint was made by respondent no.5 on 1.7.2011 in respect to the sale deed executed on 10.7.2001 & 14.8.2001 on the ground that there is violation of the provisions contained under Section 157-AA of U.P.Z.A. & L.R. Act, accordingly, the case registered before the Additional District Magistrate as Case No.11 of 2011-12, under Section 166/167 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "U.P.Z.A. & L.R. Act). A report was submitted in the aforementioned proceedings by the authorities. Respondent no.3 i.e. Additional District- Magistrate (Finance & Revenue), Mathura after considering the report submitted in the proceeding as well as the evidence on record rejected the proceeding, under Section 166/ 167 of U.P.Z.A. & L.R. Act as not maintainable vide order dated 20.1.2012. A report was submitted in the aforementioned proceedings by the authorities. Respondent no.3 i.e. Additional District- Magistrate (Finance & Revenue), Mathura after considering the report submitted in the proceeding as well as the evidence on record rejected the proceeding, under Section 166/ 167 of U.P.Z.A. & L.R. Act as not maintainable vide order dated 20.1.2012. Against the order dated 20.1.2012, respondent no.5 filed a revision before the Board of Revenue which was allowed and land has been ordered to be vested in State vide order dated 11.6.2015, hence this writ petition on behalf of the petitioners challenging the order dated 11.6.2015 passed by respondent no.2- Board of Revenue. 3. This Court vide order dated 16.7.2015 entertained the matter and granted interim protection. 4. In pursuance of the order dated 16.7.2015, parties have exchanged their pleadings. 5. Learned counsel for the petitioners submitted that the proceeding under Section 166/167 of U.P.Z.A. & L.R. Act was initiated in illegal and arbitrary manner by the private respondent no.5, who has no locus to initiate the proceeding. He further submitted that the proceeding was not maintainable. He next submitted that the land in dispute was declared as non-agricultural under Section 143 of U.P.Z.A. & L.R. Act, as such, the proceeding cannot be initiated under Section 166/167 of U.P.Z.A. & L.R. Act. He further submitted that the Board of Revenue has exceeded his revisional jurisdiction by vesting the plot in question in State Government. He also submitted that the authority prescribed under the Act can pass the order for vesting the land in State Government and Board of Revenue cannot pass the order for vesting the land in the State Government. He placed reliance upon the judgment of this Court reported in 2012 (116) RD 69, Rakesh Kumar v. State of U.P. & Others as well as (2023) 0 Supreme (All) 968, Sudheer Kumar Jain v. State of U.P. and Others in support of his argument that only the authority prescribed under the Act/ Code can pass the order for vesting the land in the State-Government. 6. On the other hand, Mr. Tarun Gaur, learned Standing Counsel for the State-respondents and Mr. Avinash Chandra Srivastva, learned counsel for respondent- Gram Sabha submitted that the Board of Revenue has rightly exercised his jurisdiction as the sale deed in question is hit by Section 157 AA of U.P.Z.A. & L.R. Act. 6. On the other hand, Mr. Tarun Gaur, learned Standing Counsel for the State-respondents and Mr. Avinash Chandra Srivastva, learned counsel for respondent- Gram Sabha submitted that the Board of Revenue has rightly exercised his jurisdiction as the sale deed in question is hit by Section 157 AA of U.P.Z.A. & L.R. Act. They further submitted that even in the case both parties belongs to Scheduled Castes, permission is to be obtained in view of the ratio of law laid down by this Court. They further submitted that no interference is required in the matter against the order impugned dated 11.6.2015. 7. I have considered the argument advanced by learned counsel for the parties and perused the records. 8. There is no dispute about the fact that the sale deed in question was executed in the year 2001 by the person belonging to the Scheduled Castes in favour of the person who also belongs to Scheduled Castes. There is also no dispute about the fact that on the basis of the sale deed, the vendees were recorded and still in possession of the plot since 2001. There is also no dispute about the fact that the proceeding initiated on the basis of private complaint under Section 166/167 of U.P.Z.A. & L.R. Act was rejected as not maintainable but in revision Board of Revenue has vested the land in State Government. 9. In order to appreciate the controversy involved in the matter, perusal of Section 157 AA/ 166/ 167 of U.P.Z.A. & L.R. Act will be relevant for perusal, which are as under: "[157AA. 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 Sections 153 to 157, no person belonging to 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) land less 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 referred to in 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 subsection 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 Clauses (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 Caste is available, the land may be transferred to a person belonging to a Scheduled Tribe in the order of preference given in sub-sections (1) and (2). (4) No transfer under this sections shall lie made except with the previous approval of the Assistant Collector concerned. [(5) A transferee of land under sub-section (1) shall have no right to transfer the land by way of sale, gift, mortgage or lease before the expiry of a period of ten years from the date of transfer in his favour.] 166. Transfer made in contravention of the Act to be vioid.- [Every transfer made in contravention of the provisions of this Act, shall be void.] 167. Transfer made in contravention of the Act to be vioid.- [Every transfer made in contravention of the provisions of this Act, shall be void.] 167. Consequences of void transfer.- (1) The following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely- (a) the subject-matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances; (b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances; and (c) the transferee may remove other moveable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed. (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 over such land or other property and to direct that any person occupying such land or property be evicted therefrom. For the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary.]" 10. Paragraph Nos.21 to 23 of the judgment rendered by this Court in Rakesh Kumar (supra) will be relevant for perusal, which are as under: "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 157-A 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. 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. 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 Section 154 and 157-A of the Act or as a matter of fact,of any other provision of the Act." 11. This Court in another case reported in (2023) 0 Supreme (All) 968, Sudhir Kumar Jain v. State of U.P. & Others has followed ratio of law laid down in Rakesh Kumar (supra) and held that Collector or Additional Collector has no jurisdiction to vest the land in State Government in the proceeding under Section 166/167 of U.P.Z.A. & L.R. Act. 12. Perusal of the provisions contained under the U.P.Z.A. & L.R. Act as well as the ratio of law laid down by this Court in Rakesh Kumar (supra) as well as Sudheer Kumar Jain (supra) as quoted above, fully demonstrates that only the authorities authorized under the law can pass the order for vesting the land in State Government otherwise the entire proceeding will be vitiated. 13. In the instant matter, the Additional District Magistrate has rejected the complaint and dropped the proceeding initiated in respect to the sale deed in question but Board of Revenue while deciding the revision has passed the order for vesting the land in State-Government which is illegal. 14. 13. In the instant matter, the Additional District Magistrate has rejected the complaint and dropped the proceeding initiated in respect to the sale deed in question but Board of Revenue while deciding the revision has passed the order for vesting the land in State-Government which is illegal. 14. Considering the entire facts and circumstances of the case as well as ratio of law laid down by this Court in Rakesh Kumar (supra), the impugned order dated 11.6.2015 passed by respondent no.2 i.e. Board of Revenue, U.P. at Allahabad is liable to be set aside and the same is hereby set aside. 15. The writ petition stands allowed. 16. No order as to cost.