Permission is required for sale by a member of scheduled caste to another scheduled caste only, and it cannot be granted ex post facto.

JUDGMENT :

1. Heard counsel for the petitioner and learned Standing Counsel for the State-respondents.

2. The petition arises out of proceedings under Section 157AA/166/167 of the U.P Z. A. and Land Reforms Act and seeks a writ of certiorari for quashing the orders dated 28.10.2016 passed by the respondent no.2 whereby certain land purchased by the petitioner has been ordered to vest in the State as the sale deed was executed by the vendor without having obtained prior permission contemplated under Section 157AA of the Act.

3. The order dated 17.10.2018 whereby the consequential appeal has been dismissed by the respondent no.1 is also impugned.

4. Admittedly one Roogan executed a registered sale deed on 05.03.2013 of 1/5th part of plot no. 429 situated in Village and Post Meerpurhindu, Tehsil & District Ghaziabad in favour of petitioner. It is also not in dispute that the vendor had obtained this land on patta and had become its bhumidhari with transferable rights, in accordance with Section 131 B of U.P. Z. A. and L. R. Act. It is also not in dispute that no prior permission have been obtained before executing the sale deed as is required by Section 157AA of the Act.

5. The contention of the petitioner before this Court as also before the Court below is that since both vendor and vendee belong to the scheduled caste, no permission was required for executing the sale deed.

6. This argument has been considered and repelled in the judgment dated 10.08.2015 passed in Writ-C No. 4406 of 2015, Amichandra Vs. State of U.P. and 2 others. The relevant portion of the said judgment is extracted herein below:-

"Sub-section (4) has been introduced which mandates that in case, a person is entitled to execute a sale deed, etc. in favour of person(s) belonging to the Scheduled Caste, such transfer shall not be without prior permission of the Assistant Collector. If this is not the vaild and correct interpretation of sub-section (4) of Section 157-AA of the Act, sub-sections (1) and (2) would be rendered redundant."

7. The contention therefore raised by the counsel for the petitioner is without merit.

8. The second question is whether the permission required under Section 157AA can be granted Ex Post Facto. In my considered opinion, the permission cannot be granted Ex Post Facto because the permission contemplated by Section 157AA is for sale by a member of scheduled caste to another scheduled caste only. However, amongst scheduled caste who can purchase land, whose vendor has become bhumidhar with transferable rights under Section 131 B, is to be determined in the order of preference provided by the section itself. In this regard, again it would be relevant to refer to the judgment of Amichandra (supra) wherein it has been observed:-

"Moreover this Section, 157-AA of the Act permits transfers between two persons belonging to the Scheduled Castes only. The only exception carved out by sub-section (3) of this Section is that if transferee belonging to a Schedule Caste is not available. Then a transfer in favour of a member of a Scheduled tribe may be permitted in accordance with the conditions and order of preference specified in the section itself. Even otherwise, the section provides for various categories of persons who are entitled to purchase the land in the order of preference given. A person in a higher category shall have preference over a person in the lower category mentioned.

.................

It therefore necessarily follows that before a transfer is effected, it has to be determined as to the category under which the prospective vendee falls and whether another person of the Scheduled Caste, who is in a higher preferential category is available or not. This determination has to be made and duly recorded prior to the transfer itself.

It is in this context that sub-section (4) has been introduced which mandates that in case, a person is entitled to execute a sale-deed, etc. in favour of person(s) belonging to the Scheduled Caste, such transfer s