Back
2015 Supreme(UK) 193
UTTARAKHAND HIGH COURT
Hon'ble Mr. Justice Alok Singh
Writ Petition No. 957 of 2004 (M/S)
TAZAMMUL @ BHURA – Petitioner
Versus
DEPUTY DIRECTOR OF CONSOLIDATION/
COLLECTOR HARIDWAR & ORS. – Respondents
WITH Writ Petition No. 460 of 2004 (M/S)
RIYASHAT @ KALLU & ANR. – Petitioners
Versus
D.D.C. HARIDWAR & ORS. – Respondents
WITH Writ Petition No. 467 of 2004 (M/S)
RIYASHAT @ KALLU & ANR. – Petitioners
Versus
D.D.C. & ORS. – Respondents
AND Writ Petition No. 958 of 2004 (M/S)
TAZAMMUL @ BHURA – Petitioners
Versus
DEPUTY DIRECTOR OF CONSOLIDATION/
COLLECTOR HARIDWAR & ORS. – Respondents
Decided on : 31.03.2015
For the Petitioner: Mr. Lok Pal Singh and Mr. Rajendra Singh, Advs.
Headnote:(A) U.P. Zamindari Abolition and Land Reform Act, 1950, Secs. 166 and 167 — Bare perusal of — Demonstrates that any transfer made in contravention of the provisions of the Act, shall be void — And subject matter of such transfer shall with effect from date of transfer, be deemed to have been vested in the State Government free from all encumbrances. (Paras 5, 6)
(B) U.P. Zamindari Abolition and Land Reform Act, 1950, Sec. 131-B — A bare reading of Sec. 131-B reveals that every person, who was a bhumidhar with non-transferable rights immediately before the commencement of the U.P.Z.A. & L.R. (Amendment) Act, 1995 — And had been such bhumidhar for a period of 10 years or more, shall become bhumidhar with transferable rights on such commencement — Therefore, any wrong entry made in the revenue records that petitioner was bhumidhar with transferable rights, prior to enactment of Sec. 131-B, was wrong and against the law — Benefit thereof cannot be given to the original lessee petitioner or subsequent transferees — Since concerned transfer made by petitioner on 09.06.1988 prior to enactment of Sec. 131-B, was void — Therefore, in view of Secs. 166-167 of the Act, property stood vested in favour of the State Government free from all encumbrances. (Paras 8, 9, 10)
¼v½ mÙkj izns’k tehankjh fouk’k vkSj Hkwfe lq/kkj vf/kfu;e] 1950] /kkjk 166 vkSj 167 & voyksdu ls iznf’kZr fd vf/kfu;e ds izko/kkuksa dk mYya?ku dj fd;k x;k vUrj.k ‘kwU; gksrk gS & o dfFkr vUrj.k dk okn fo”k; vUrj.k dh frfFk ls lHkh ck/kkvksa ls eqDr jkT; ljdkj esa fufgr le>k tk,xkA ¼izLrj 5] 6½
¼c½ mÙkj izns’k tehankjh fouk’k vkSj Hkwfe lq/kkj vf/kfu;e] 1950] /kkjk 131&ch & èkkjk 131&ch dk voyksdu O;Dr djrk gS fd izR;sd O;fDr tks fd mÙkj izns’k tehankjh fouk’k vkSj Hkwfe lq/kkj ¼la’kks/ku½ vf/kfu;e] 1995 ds vkjaHk ls Bhd iwoZ vuarj.kh; vf/kdkj lfgr ,d Hkwfe/kj Fkk o 10 o”kZ dh vof/k ;k vf/kd rd dfFkr Hkwfe/kj Fkk] og dfFkr izorZu ij varj.k vf/kdkj okyk Hkwfe/kj cu tk,xk & bl izdkj jktLo fjdkMZ esa dksbZ Hkh xyr izfof”V fd /kkjk 131&ch ds vf/kfu;eu ls iwoZ ;kphdÙkkZ vUrj.k vf/kdkj okyk Hkwfe/kj Fkk] =qfViw.kZ o fof/k fo#) & bl izdkj okLrfod ysfll@;kphdÙkkZ ;k i’pkrorhZ gLrkUrfjr dk ykHk mls iznku ugha fd;k tk ldrk & pw¡fd /kkjk 131 ch ds vf/kfu;eu ls iwoZ fnukad 9-6-1988 dks ;kphdÙkkZ }kjk fd;k x;k] lacaf/kr vUrj.k] ‘kwU; Fkk & blfy, /kkjk 166&167] vf/kfu;e ds n`f”Vdks.k esa lHkh ck/kkvksa ls eqDr lEifÙk jkT; ljdkj ds i{k esa fufgrA ¼izLrj 8] 9] 10½
Hon’ble Alok Singh, J. (Oral)
Present petitions are filed assailing the orders dated 08.03.2001 and 08.11.2001 passed by Consolidation Officer, Roorkee; judgment and order dated 20.02.2003 passed by Settlement Officer, Consolidation, Haridwar 2 and judgment and order dated 02.06.2004 passed by Deputy Director, Consolidation, Haridwar. Therefore, all the petitions are heard together and are being disposed of by this common judgment with the consent of learned counsel for the parties.
2. Undisputedly, a patta was granted in favour of Tazammul @ Bhura under Section 197 of the U.P. Zamindari Abolition and Land Reforms Act read with Rules, in the year 1971 over the Gata (Khasra No. 14/1, 19 and 20/3) Village Kutubpur Grant, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar; as per terms of the patta, rights of bhumidhari with non-transferable rights were conferred in favour of the lessee namely Tazammul @ Bhura; Tazammul @ Bhura/lessee has executed one registered sale deed on 09.06.1988 in favour of M/s Anker Marine and Chemicals India Pvt. Ltd. and possession of the land bearing Khasra No. 14/1, 19 and 20/3 was handed over to the vendee; name of the vendee i.e. M/s Anker Marine and Chemicals India Pvt. Ltd. was mutated in the revenue records; on 01.03.1996 M/s Anker Marine and Chemicals India Pvt. Ltd. executed subsequent sale deed in favour of Dhuman Hotel Pvt. Ltd.; name of Dhuman Hotel was also got mutated in the revenue records; Dhuma Hotel Pvt. Ltd. executed yet subsequent sale deed in favour of Riyasat @ Kallu s/o Allah Rakkha; total area of the land being Khasra No. 14/1, 19 and 20/3, lease whereof was granted in favour of Tazammul was 5 bigha 16 biswa pukhta, however, for the reasons known to the Consolidation Authorities, area of the same land bearing Khasra No. 14/1, 19 and 20/3 was mentioned in the revenue record as 11 bigha 12 biswa and name of the lesee Tazammul was recorded as bhumidhar with transferable rights; in other words, the double area of lease holding land and bhumidhar with transferable rights were wrongly mentioned in the revenue record; Riyasat @ Kallu s/o Allah Rakkha respondent no. 4 in WPMS No. 957 of 2004 moved an application under Section 9 of the U.P. Consolidation of Holdings Act saying his name may be mutated on the basis of sale deed over Khasra No. 14/1, 19 and 20/3 total measuring 5 bigha 16 biswa pukhta whereupon proceedings commenced.
3. Undisputedly, lease was granted in favour of Tazammul petitioner of WPMS No. 957 of 2004 over Khasra No. 14/1, 19 and 20/3, total measuring 5 bigha 16 biswa pukhta with bhumidhar non-transferable rights, therefore, Tazammul had absolutely no right whatsoever, to transfer the property in favour of M/s Anker Marine and Chemicals India Pvt. Ltd. or in favour of any other person in view of Section 152 (2) of the Act, 1950.
4. Since, Tazammul had transferred the land in favour of M/s Anker Marine and Chemicals India Pvt. Ltd. on 09.06.1988 in violation of Section 152 (2) of the Act, therefore, sale deed executed in favour of M/s Anker Marine and Chemicals India Pvt. Ltd. was void. Consequently, all the subsequent sale deeds made by M/s Anker Marine and Chemicals India Pvt. Ltd. and Dhuman Hotel Pvt. Ltd. were also ab initio, void.
5. Sections 166 and 167 of the U.P.Z.A. & L.R. Act read as under:
“166. Every transfer made in contravention of the provisions of this Act, shall be void.
167. (1) The following consequences shall ensure 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 immov
