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IN THE HIGH COURT OF ALLAHABAD
Pankaj Bhatia, J.
Mrs. Rekha Rani – Petitioner
Versus
State Of U.P. and Others – Respondents
Writ - C No. 35989 of 2013
Decided On : 15-03-2019
Zamindari Abolition and Land Reforms Act - Void Transfer - Sections 157-A, 166, 167
Fact of the Case:
The petitioner challenged orders regarding a property transfer without permission under Section 157-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. The State sought eviction and mutation of the property in its name.
Finding of the Court:
The court held that the transfer without permission is void under Section 166 of the Act, and the property vests in the State Government as per Section 167. The court rejected the petitioner's argument that the land should be considered Abadi due to non-agricultural use without a specific declaration under Section 143 of the Act.
Issues: Jurisdiction of the Collector and classification of the land as Abadi without a declaration under Section 143 of the Act.
Ratio Decidendi: The transfer without permission is void under Section 166, and the property vests in the State Government as per Section 167. The land cannot be termed Abadi without a specific declaration under Section 143.
Final Decision: The writ petition was dismissed.
JUDGMENT :
1. Heard learned counsel for the petitioner and learned standing counsel for the State.
2. The petitioner has filed the present writ petition challenging the order dated 25.4.2013 passed by the Commissioner, Aligarh and the order dated 30.10.2012 passed by the Collector, Etah.
3. Brief facts, giving rise to the present petition, are as follows:-
4. The petitioner is a purchaser of a property bearing Gata No.1023/2 area 0.034 hectare situate at village Raarpatti, Pargana Etah Sakit, Tehsil and District Etah by means of a registered Sale Deed dated 6.10.2009. The said sale deed was executed by Suresh Chandra, the respondent no.5 out of his share in the joint property owned by Suresh Chandra along with his brother Nand Kishore. It is stated that the seller of the property Suresh Chandra is a Dhobi by caste which is a Scheduled Caste and it is also stated that no permission as required under Section 157-A of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the Act') was obtained prior to the execution of the sale deed in favour of the petitioner.
5. The respondent no.2 i.e. the Collector, Etah filed a suit under Sections 166 & 169 of the Act being Case No.8 of 2012 seeking the relief of eviction and mutation of the name of State Government in respect to the property which was transferred in favour of the petitioner by virtue of a sale deed dated 6.10.2009. The averments made in the plaint were that the respondent no.5 who is Dhobi and Scheduled Caste has transferred an area of 344.10 Sq. Meters i.e. 0.034 Hectare through a registered sale deed dated 6.10.2009 in favour of the petitioner and as no permission was obtained under Section 157-A of the Act and as such by virtue of the provisions of Section 167 of the Act the property has vested in the State Government and consequently the name of the State Government should be mutated in the revenue records as well as possession of the property be given to the State Government as is required under Section 167(2) of the Act.
6. In response to the Plain in suit numbered as Case No.8 of 2012, the petitioner herein filed her objection only raising the question of jurisdiction stating that the Court of Collector, Etah does not have the jurisdiction relying upon the decision of the High Court rendered in the case of Rakesh Kumar Vs. State of U.P., 2012 (116) R.D. Page 69. The Collector, Etah vide his order dated 30.10.2012 passed an order rejecting the objection of the petitioner with regard to jurisdiction and held that in the absence of permission under Section 157-A of the Act the sale deed is void as is the mandate of Section 166 of the Act and the property vests in the State Government by virtue of Section 167(1) of the Act. The said order dated 30.10.2012 was challenged by filing a revision numbered as 246 of 2012 in the Court of Commissioner, Aligarh. The main averments in the said revision were that the order has been passed without jurisdiction and for the first time it was also argued in the revisional Court that the property in dispute has become an Abadi by virtue of several constructions that have come up and for all practical purpose is Abadi.
7. The said revision was decided vide order dated 25.3.2013 (Annexure-5 to the writ petition) wherein the revisional Court relying on the provision of Section 157-A of the Act, held that the transfer without the permission is a void transfer and dismissed the revision.
8. Aggrieved against the said two orders, the present petition has been filed. The petitioner was heard on 22.2.2019 and the petitioner was granted liberty to file written synopsis. In terms of the said liberty, the petitioner has filed written synopsis relying upon the judgment of this Court dated 28.2.2012 in the case Rakesh Kumar (supra) and have also argued that the agricultural land is being used as Abadi and as such does not come within the purview of Section 166 of the Act and has thus, prayed that the orders passed are
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