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SUPREME COURT OF INDIA
R. BANUMATHI, S. ABDUL NAZEER AND A.S. BOPANNA, JJ.
ADDITIONAL COMMISSIONER REVENUE AND OTHERS — Appellant
Vs.
AKHALAQ HUSSAIN AND ANOTHER — Respondent
Civil Appeal No. 7346 of 2010
Decided on : 03-03-2020
Land and Revenue – Mutation – Respondents have not produced any such document which shows that declaration required under Section 143 of Act has been made much less registered – In absence of such declaration, land is deemed to be an “agricultural land” as per provisions of Section 3(14) of the Act – Recitals in exchange deed can be of no help to respondents as said document is a self-serving document and cannot operate as a document to prove that land is an abadi land – Since land is an agricultural land, provisions of U.P. ZA & LR Act are applicable to land in question – Land belonging to a Scheduled Tribe cannot be transferred in any manner – For a valid exchange, it is mandatory to obtain permission of Assistant Collector – In instant case, no prior permission was sought from Assistant Collector as mandated – In absence of fulfilling of pre-requisite condition as laid down in Section 161 of Act, exchange has to be necessarily held to be void – U.P. ZA & LR Act being a beneficial legislation, provisions need to be interpreted in a manner so as to achieve rationale behind legislation – Instant exchange being void since its inception, transfer being void in terms of Section 166 of the Act, consequences enshrined in Section 167 of Act shall automatically follow – In case, transfer is void under provisions of Act, there is no justification to consider request of respondents on the ground that they are running Hotel by availing loan from financial institutions – When transfer has been made in contravention of provisions of U.P. ZA & LR Act, there is no ground for considering questions of equity – Order of High Court is contrary to express provisions of U.P. ZA & LR Act and is also against benevolent provisions of Act and impugned judgment cannot be sustained – Impugned judgment of High Court set aside. [Sections 158-B and 161 of U.P. Zamindari Abolition and Land Reforms Act, 1950] (Paras 17, 18, 19, 20, 28, 29, 30 and 31)
Facts of the Case:
Present appeal arises out of the impugned judgment dated 18.09.2008 passed by the High Court of Uttarakhand at Nainital in Writ Petition No.670 of 2002 in and by which the High Court has set aside the orders of the Additional Commissioner (Revenue) dated 02.07.2002 and Additional Judicial Commissioner dated 30.06.2001 and also earlier order dated 19.07.2000 passed by the Assistant Collector/Pargana Magistrate.
Findings of the Court:
High Court erred in saying that Section 157-B of the Act does not bar making of exchange by a person of Scheduled Tribe because he is getting a land in exchange. There is clear bar under Section 157-B of the Act for transfer of land by a Scheduled Tribe even by way of exchange as the word “or otherwise” indicates. When there is a clear statutory provision barring the transfer, it was not open to High Court to substitute its view in the place of that provision. Any such interpretation would defeat the benevolent object of the provisions of the U.P. ZA & LR Act and also the constitutional scheme providing for the social and economic empowerment of the Scheduled Tribes.
Result : Appeal allowed.
JUDGMENT
R. Banumathi. J.
This appeal arises out of the impugned judgment dated 18.09.2008 passed by the High Court of Uttarakhand at Nainital in Writ Petition No. 670 of 2002 in and by which the High Court has set aside the orders of the Additional Commissioner (Revenue) dated 02.07.2002 and Additional Judicial Commissioner dated 30.06.2001 and also earlier order dated 19.07.2000 passed by the Assistant Collector/Pargana Magistrate.
2. Brief facts which led to filing of this appeal are as under:-
Respondents Akhalaq Hussain and Saqir Hussain entered into an exchange with one Mangal Singh (a member of Scheduled Tribe) by way of a registered exchange deed dated 16.03.1994 whereby the respondents gave 41/2 Muthi of land, one Muthi is equal to 12.5 sq.mtrs. totalling 56.25 sq. mtrs., in village Khata No.36, Bandobast Khatuni Khata No.91 situated in village Vim Patti in District Pithoragarh in return for 12 Nali, one Nali is equal to 200 sq.mtrs. totalling 2400 sq.mtrs. of agricultural land in Bandobast Khatuni Khata No.43 situated in village Mall Ghorpatta, Munsiari, District Pithoragarh. Thereafter, mutation application was moved before the Tehsildar who vide order dated 25.04.1994 allowed the mutation on the basis of exchange under Section 161 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (for short "U.P. ZA & LR Act"). The respondents claim that they have constructed a hotel on the land obtained in exchange and the said hotel is being run in the name and style of "Zara Resort".
3. On 19.07.2000, the Pargana Magistrate/Assistant Collector issued an order under Section 167 of the U.P. ZA & LR Act stating that the parties to the aforementioned exchange have violated the provisions of sub-section (1) of Section 161 of U.P. ZA& LR Act while getting the registration done. It was held that according to the provisions, a bhumidhar can only exchange his land with another bhumidhar after he obtains prior permission from the Assistant Collector. But in the instant case, no prior permission has been obtained from the Assistant Collector. Exchange deed has been made in contravention of the provisions of the U.P. ZA & LR Act and hence void. According to the provisions of sub-section 1 (a) of Section 167 of U.P. ZA& LR Act, the land admeasuring 12 Nali under Khata No.43 stands vested in the Government of Uttar Pradesh from the date of its transfer. The respondents were ordered to remove all their movable/immovable properties existing on the land within thirty days.
4. On 04.12.2000, Tehsildar, Pithoragarh inspected the revenue record and found that 4 Muthi land alleged to have been given to Mangal Singh as per the exchange deed was still owned by the respondents and there was no noting in the name of Mangal Singh in village Khata No.36, Bandobast Khata No.91.
5. The respondents appealed against the order dated 19.07.2000 contending that the exchange has been performed by the mutual consent of both the parties as per rules and the registration has also been lawfully done on 16.03.1994. The respondents claimed that the provisions of Sections 161 and 167 of U.P. ZA & LR Act do not apply, but the provisions of the Transfer of Property Act would apply and therefore, the exchange cannot be declared as illegal transfer under the provisions of U.P. ZA & LR Act. Vide order dated 30.06.2001, the Additional Commissioner (J) Kumaon Zone, Nainital held that the lands which have been exchanged by both the parties is shown under the category of "transferable lands" which fall under the definition of "agricultural lands" under Section 3(14) of U.P. ZA & LR Act and the parties have not obtained prior permission. Therefore, the exchange cannot be held to be legal. It was held that Mangal Singh is a person belonging to Scheduled Tribe whereas, the respondents are non-Scheduled Tribes. The transfer of lands by persons belonging to Scheduled Tribe is proh
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