ADDITIONAL COMMISSIONER REVENUE AND versus AKHALAQ HUSSAIN AND ANOTHER

[2020] 2 S.C.R. 1001

ADDITIONAL COMMISSIONER REVENUE AND OTHERS

AKHALAQ HUSSAIN AND ANOTHER

(Civil Appeal No. 7346 of 2010)

MARCH 03, 2020

[R. BANUMATHI, S. ABDUL NAZEER AND

A. S. BOPANNA, JJ.]

U.P. Zamindari Abolition and Land Reforms Act, 1950 –ss.157-B, 161, 166, 167 – Respondents entered into an exchangewith member of Scheduled Tribe by way of registered exchangedeed – Respondents gave 4½ Muthi of land in return for 12 Nali ofagricultural land – Assistant Collector held that the exchangeviolates s.161(1) and the exchange deed being in violation ofprovisions of the 1950 Act is void – Respondents filed appeal –Dismissed – Revision petition – Dismissed – Writ petition filed bythe respondents – Allowed – Held: s.161 pertains to exchange ofland, as per which bhumidhar may exchange land with anotherbhumidhar or with any Gaon Sabha or local authority, with the priorpermission of an Assistant Collector – Insofar as the land belongingto member of Scheduled Tribe, exchange is not permissible – Unders.157-B, no bhumidhar or asami belonging to Scheduled Tribe,shall have the right to transfer by way of “sale, gift, mortgage orlease or otherwise any land to person not belonging to ScheduledTribe” – Language used in s.157-B “or otherwise” emphasizes thatthe land belonging to Scheduled Tribe cannot be transferred inany manner whatsoever – Further, in the instant case admittedly,even no prior permission was sought from the Assistant Collector –Also, respondents did not explain as to why member of ScheduledTribe wanted to exchange his large extent of land i.e.12 Nali (2400sq. mtrs.) with much smaller piece of land i.e. 4½ Muthi (56.25 sq.mtrs.) – This raises doubt about the genuineness of exchange deedstrengthened by the fact that respondents’ names were mutated inthe land exchanged while that of the member of Scheduled Tribewas not – Since the exchange deed violated s.157-B, the transfer isvoid u/s.166 – No justification to consider respondents’ request onthe basis they are running Hotel on the land – No ground for

CDE

Aconsidering questions of equity – When there is clear statutoryprovision barring the transfer, it was not open to the High Court tosubstitute its view in place of that provision – Such interpretationwould defeat the benevolent object of the provisions of the 1950Act and the constitutional scheme providing for social and economicempowerment of the Scheduled Tribes – Judgment of High CourtBset aside – Appellants at liberty to proceed in accordance with law– Interpretation of Statutes – Equity – Indian Stamp Act – Article 31of Schedule 1-B.

U.P. Zamindari Abolition and Land Reforms Act, 1950 – s.161– Exchange of land – Requirement of prior permission u/s.161 –CDiscussed.

U.P. Zamindari Abolition and Land Reforms Act, 1950 –ss.3(14), 143, 144 – Respondents entered into land exchangewith member of Scheduled Tribe and gave 4½ Muthi of land inreturn for 12 Nali of agricultural land – Exchange deed was heldDto be void being in violation of provisions of the 1950 Act –Respondents inter alia pleaded that the land in question is not an“agricultural land” and does not fall within the definition of “land”u/s.3(14) thus, provisions of Chapter VIII of the Act are notapplicable – Held: For changing the nature of land fromE“agricultural” to “abadi”, declaration as stipulated in ss.143 &144 is required – Respondents did not produce any such documentwhich shows that such declaration was made much less registered –In absence thereof, the land is deemed to be an “agricultural land”as per s.3(14) and the provisions of the 1950 Act are applicable tothe land in question.F

U.P. Zamindari Abolition and Land Reforms Act, 1950 –ss.157-A, 157-B – Restrictions on transfer of land by members ofScheduled Castes vis-a-vis Scheduled Tribe – Discussed.

Allowing the appeal, the Court

GHELD:1.1 Mangal Singh is member of Scheduled Tribeand this factum has not been disclosed in the exchange deed. Asper Section 157-B of the U.P. Zamindari Abolition and LandReforms Act, 1950 (the Act), bhumidhar or asami belonging toScheduled Tribe cannot transfer his land to person not belongingto Scheduled Tribe. As per Section 166 of the Act, any transferH

made in contravention of the provisions of the Act shall be void.Since the exchange deed has been executed in violation of theprovisions of Section 157-B of the Act, the transfer is void and isliable to be set aside and the land is liable to be vested in theState Government. For changing the nature of land from“agricultural” to “abadi”, declaration as stipulated in Sections143 and 144 is required. The provisions under Section 143 of theAct are initiated suo motu or on an application moved by abhumidhar with transferable rights and an enquiry is required tobe conducted by the Assistant Collector as prescribed under theAct.[1010-D; 1010-F; 1011 E-G]

In the present case, the respondents have not producedany such document which shows that declaration required underSection 143 of the Act has been made much less registered. Inthe absence of such declaration, the land is deemed to be an“agricultural land” as per the provisions of Section 3(14) of theAct. In the absence of such declaration, the land cannot be saidto be “abadi land”. Since the land is an “agricultural land”, theprovisions of U.P. ZA & LR Act are applicable to the land inquestion. [Paras 12, 15, 17 and 18][1013 E-G; 1014B-C]

1.2 Section 161 of the Act pertains to exchange of land. Asper Section 161, bhumidhar may exchange land with anotherbhumidhar or with any Gaon Sabha or local authority, with theprior permission of an Assistant Collector. Insofar as the landbelonging to member of Scheduled Tribe, exchange is notpermissible. Under Section 157-B, no bhumidhar or asamibelonging to Scheduled Tribe, shall have the right to transferby way of “sale, gift, mortgage or lease or otherwise any land to aperson not belonging to Scheduled Tribe”.The language used inSection 157-B of the Act “or otherwise” emphasizes that the landbelonging to Scheduled Tribe cannot be transferred in anymanner whatsoever. In Section 157-A of the Act which deals withrestrictions on transfer of land by members of Scheduled Castes,the language used is “by way of sale, gift, mortgage or lease to aperson not belonging to Scheduled Caste”. Absence of word“or otherwise” in Section 157-A of the Act shows that whileexchange may be permissible of land belonging to members of

AScheduled Caste to person belonging to Scheduled Caste, suchan exchange is prohibited under Section 157-B of the Act –Restriction on transfer of land of member of Scheduled Tribe.Use of the word “shall” in the proviso to Section 161 of the Actclearly indicates that for valid exchange, it is mandatory to obtainpermission of the Assistant Collector. In the instant case,Badmittedly, no prior permission was sought from the AssistantCollector as mandated. In the absence of fulfilling of pre-requisitecondition as laid down in Section 161 of the Act, the exchangehas to be necessarily held to be void. [Paras 19, 20][1014 B-C;1014 F-H; 1015 A-D]

1.3 There is no merit in the contention that for exchange ofland prior permission under Section 161 of the Act is not required.The pre-requisite condition for grant of permission is thecalculation of the rental value and if the difference between therental value of land given in exchange and of land received inDexchange is more than 10%, then the Assistant Collector shallrefuse the permission. The pre-requisite condition of calculationof the rental value clearly suggests that the permission of theAssistant Collector is pre-requisite condition for validexchange. [Paras 22, 23][1015 F-G; 1016 B-D]

E1.4 The respondents have not explained as to why MangalSingh (a member of Scheduled Tribe) wanted to exchange hislarge extent of land i.e. 12 Nali (2400 sq. mtrs.) with muchsmaller piece of land i.e. 4½ Muthi (56.25 sq. mtrs.). This aspectraises doubt about the genuineness of the exchange deed. Thisis further strengthened by the fact that the names of theFrespondents have been mutated in the land of Mangal Singh inBandobast Khatuni Khata No.43; whereas the name of MangalSingh has not been mutated in village Khata No.36, BandobastKhatuni Khata No.91. These circumstances clearly indicate thatthe exchange deed relied upon by the respondents is not validGexchange and has been executed in violation of the provisions ofthe U.P. ZA & LR Act. [Para 24][1016 D-G]

1.5 U.P. ZA & LR Act is beneficial legislation which hasbeen enacted to protect the interest of the exploited rural masses.There is no merit in the contention that the order passed by the

Pargana Magistrate dated 19.07.2000 is barred by limitation. Theexchange deed dated 16.03.1994 being in contravention to theprovisions of the U.P. ZA & LR Act is void. The consequenceshave to follow as per Section 167 of the Act. In case, if the transferis void under the provisions of the Act, there is no justification toconsider the request of the respondents on the ground that theyare running the Hotel by availing loan from the financialinstitutions. When there is clear statutory provision barringthe transfer, it was not open to the High Court to substitute itsview in the place of that provision. Any such interpretation woulddefeat the benevolent object of the provisions of the U.P. ZA &LR Act and also the constitutional scheme providing for the socialand economic empowerment of the Scheduled Tribes. The orderof the High Court is contrary to the express provisions of U.P.ZA & LR Act and the impugned judgment cannot be sustained.[Paras 25, 28-30][1016-G; 1018-G; 1019-B; 1019 C-F]

Chandrika Singh and others v. Raja Vishwanath PratapSingh and another (1992) 3 SCC 90 : [1992] 2 SCR640; Samatha v. State of A.P. and others (1997) 8 SCC191 : [1997] 2 Suppl. SCR 305 – relied on.

Life Insurance Corporation of India v. Escorts Ltd. andothers (1986) 1 SCC 264 : [1985] 3 Suppl. SCR 909 –referred to.

Case Law Reference

[1992] 2 SCR 640relied onPara 16[1985] 3 Suppl. SCR 909referred toPara 21[1997] 2 Suppl. SCR 305relied onPara 25

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7346of 2010.

From the Judgment and Order dated 18.09.2008 of the High Courtof Uttarakhand at Nainital in Writ Petition No. 670 of 2002 (M/S).

Jatinder Kumar Sethi, Dy. A.G., Ashutosh Kumar Sharma, JatinderKumar Bhatia, Advs. for the Appellants.

Manohar Pratap, Sanpreet Singh Ajmani, Varun Mishra, Ms. RabiaWani, Ms. Manju Jetley, Advs. for the Respondents.

AThe Judgment of the Court was delivered by

R. BANUMATHI, J.

1. This appeal arises out of the impugned judgment dated18.09.2008 passed by the High Court of Uttarakhand at Nainital in WritPetition No.670 of 2002 in and by which the High Court has set asideBthe orders of the Additional Commissioner (Revenue) dated 02.07.2002and Additional Judicial Commissioner dated 30.06.2001 and also earlierorder dated 19.07.2000 passed by the Assistant Collector/ParganaMagistrate.2. Brief facts which led to filing of this appeal are as under:-C

Respondents Akhalaq Hussain and Saqir Hussain entered into anexchange with one Mangal Singh (a member of Scheduled Tribe) byway of registered exchange deed dated 16.03.1994 whereby therespondents gave 4 ½ Muthi of land, one Muthi is equal to 12.5 sq.mtrs.totalling 56.25 sq. mtrs., in village Khata No.36, Bandobast Khatuni KhataDNo.91 situated in village Vim Patti in District Pithoragarh in return for 12Nali, one Nali is equal to 200 sq.mtrs. totalling 2400 sq.mtrs. of agriculturalland in Bandobast Khatuni Khata No.43 situated in village MallGhorpatta, Munsiari, District Pithoragarh. Thereafter, mutation applicationwas moved before the Tehsildar who vide order dated 25.04.1994 allowedEthe mutation on the basis of exchange under Section 161 of U.P. ZamindariAbolition and Land Reforms Act, 1950 (for short “U.P. ZA & LR Act”).The respondents claim that they have constructed hotel on the landobtained in exchange and the said hotel is being run in the name andstyle of “Zara Resort”.F3. On 19.07.2000, the Pargana Magistrate/Assistant Collectorissued an order under Section 167 of the U.P. ZA & LR Act stating thatthe parties to the aforementioned exchange have violated the provisionsof sub-section (1) of Section 161 of U.P. ZA & LR Act while getting theregistration done. It was held that according to the provisions, abhumidhar can only exchange his land with another bhumidhar afterGhe obtains prior permission from the Assistant Collector. But in the instantcase, no prior permission has been obtained from the Assistant Collector.Exchange deed has been made in contravention of the provisions of theU.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 admeasuring12 Nali under Khata No.43 stands vested in the Government of UttarH

Pradesh from the date of its transfer. The respondents were ordered toremove all their movable/immovable properties existing on the land withinthirty days.

4. On 04.12.2000, Tehsildar, Pithoragarh inspected the revenuerecord and found that 4 ½ Muthi land alleged to have been given toMangal Singh as per the exchange deed was still owned by therespondents and there was no noting in the name of Mangal Singh invillage Khata No.36, Bandobast Khata No.91.

5. The respondents appealed against the order dated 19.07.2000contending that the exchange has been performed by the mutual consentof both the parties as per rules and the registration has also been lawfullydone on 16.03.1994. The respondents claimed that the provisions ofSections 161 and 167 of U.P. ZA & LR Act do not apply, but the provisionsof the Transfer of Property Act would apply and therefore, the exchangecannot 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 exchangedby both the parties is shown under the category of “transferrable 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 thatMangal Singh is person belonging to Scheduled Tribe whereas, therespondents are non-Scheduled Tribes. The transfer of lands by personsbelonging to Scheduled Tribe is prohibited under the provisions of Section157-B of U.P. ZA & LR Act. According to Section 157-B, no bhumidharor asami, subject to restrictions as mentioned in Sections 153 to 157 hasany right to transfer by way of sale, gift, mortgage or lease or otherwiseany land to any person not belonging to Scheduled Tribe. The appealwas thus dismissed.

6. The respondents thereafter filed revision petition before theAdditional Revenue Commissioner who vide order dated 02.07.2002dismissed the petition as being without merits. The Additional RevenueCommissioner accepted the contention of the Government of Uttarakhandthat the exchange of lands in question is in fact not an exchange but asale; because total land of 4 ½ Muthi has been exchanged with largerextent of land i.e. 12 Nali of land which is not in any way justified. It isthe law that the rental value of the land given in exchange and of landreceived in exchange calculated at the hereditary rates cannot be more

Athan 10% of the lower rental value and in this case, the difference is aconsiderable one. According to Section 166 of the Act, the said transferis against the provisions of law and is therefore, void.

7. writ petition was filed by the respondents for quashing oforders dated 19.07.2000, 30.06.2001 and 02.07.2002 and for issuing aBdirection to the appellants not to interfere with the peaceful possessionof the respondents. Vide impugned judgment dated 18.09.2008, the HighCourt accepted the contention of the respondents that the provision ofSection 161 of U.P. ZA & LR Act does not apply when the exchange isbeing made by exchange deed. The High Court opined that the provisionsof Sections 161 and 157-B of U.P. ZA & LR Act do not apply in case ofCexchange of the land as is made by executing the document and thestamp duty as has been provided is paid as per Article 31 of Schedule 1-B of Indian Stamp Act, which is duly registered. The High Court furtherheld that the authorities have committed error of law in holding that thepermission under Section 161 of U.P. ZA & LR Act was necessary toDbe obtained before making exchange of the land. It was held that theprovision of Section 157-B does not bar making exchange of the land byScheduled Tribe persons because they are also getting land in exchange.The writ petition was accordingly allowed.8. Learned counsel for the appellants contended that the HighECourt erred in holding that the provisions of Sections 161 and 157-B ofthe Act do not apply in case of exchange of the land whether exchangeis made by executing registered document where stamp duty is providedunder Article 32 of Schedule 1-B of Indian Stamps Act has been paid.Taking us through Section 157-B of the Act, the learned counsel submittedthat Section 157-B imposes complete bar on the right of bhumidharFor asami belonging to the Scheduled Tribe to transfer their land by wayof sale, gift, mortgage or otherwise to person not belonging to theScheduled Tribe. It was submitted that the reasoning of the High Courtis contrary to and in conflict on statutory provisions under Sections 157-B and 166 of the Act as well as the legislative scheme and intendment ofGthe U.P. ZA & LR Act. The learned counsel submitted that the HighCourt exceeded its power and jurisdiction under Article 227 of theConstitution in setting aside the concurrent findings of the AssistantCollector (dated 19.07.2000) and Additional Judicial Commissioner (dated30.06.2001) and the Additional Commissioner (Revenue) (dated02.07.2002). It was submitted that the High Court did not appreciateH

that the provisions of U.P. ZA & LR Act and the mere payment ofstamp duty will not wipe down the statutory and mandatory bar underSections 157-B and 161 of the Act.

9. Per contra, learned counsel appearing for the respondentssubmitted that the land in question does not fall within the definition of“land” under Section 3(14) of the Act and therefore, the provisions ofU.P. ZA & LR Act are not applicable. Taking us through the exchangedeed dated 16.03.1994, the learned counsel submitted that the fact thatthe land was not an “agricultural land” is supported by the fact that theexchange deed specifically mentions that the land was not an “agriculturalland”. It was further contended that the failure to seek permission forexchange under Section 161 can never result in vesting under Section167 of the Act. It was urged that the Pargana Adhikari who is of thesame level as Tehsildar was not having the jurisdiction to pass the vestingorder and the Assistant Collector alone is empowered to issue such anorder. It was further urged that the ex-parte order of vesting underSection 167 of the Act without giving opportunity of hearing to therespondents is not sustainable. Taking us through Appendix-III of theU.P. ZA & LR Act, the learned counsel submitted that the limitation forproceedings under Section 161 at Item No. 20 in Appendix-III has beenspecifically mentioned as six years from the date of transfer and thus,the proceedings in the case is barred by limitation; on the contrary, thereis no question whether they are running hotel/resort from the year1998 or not and the act of consequent taking over possession of theState will create great hardship to the respondents who are alreadyburdened by various loans from the financial institutions.

10. We have carefully considered the submissions and perusedthe impugned judgment and materials on record. The following pointsarise for consideration in this appeal:-

(i) Whether the exchange deed dated 16.03.1994 is incontravention of the provisions of U.P. ZA & LR Act in viewof complete bar for the transfer of land by member ofScheduled Tribe under Section 157-B of the U.P. ZA & LRAct?

(ii) Whether the High Court was right in saying that permissionrequired under Section 161 of the U.P. ZA & LR Act is not arequisite condition for the exchange of land?

A11. By the exchange deed dated 16.03.1994, the respondentsAkhalaq Hussain and Saqir executed registered exchange deed withMangal Singh (a Member of Scheduled Tribe) whereby the respondentsare said to have given 4 ½ Muthi of land (one Muthi is equal to 12.5sq.mtrs. totalling 56.25 sq. mtrs.) in village Khata No.36, BandobastKhatuni Khata No.91 situated in village Vim Patti in District PithoragarhBin return for 12 Nali (one Nali is equal to 200 sq.mtrs. totalling 2400sq.mtrs.) of agricultural land in Bandobast Khatauni Khata No.43 situatedin village Mall Ghorpatta, Munsiari, District Pithoragarh. In this exchangedeed, possession of the land consisting 3½ Muthi of land from KhataNo.553 and 1 Muthi of land from Khata No.554 is said to have beenChanded over to Mangal Singh by the respondents. Similarly, Mangal Singhis said to have handed over possession of the land consisting of KhatauniKhata Bandobast No.37 and 12 Nali out of Panchshala Khatauni No.43,the area of which admeasures 12 Nali.

12. Mangal Singh is member of Scheduled Tribe and this factumDhas not been disclosed in the exchange deed. As per Section 157-B ofthe Act, bhumidhar or asami belonging to Scheduled Tribe cannottransfer his land to person not belonging to Scheduled Tribe. Section157-B reads as under:-

157-B. Restrictions on transfer of land by members ofEScheduled Tribes. – (1) Without prejudice to the restrictionscontained in Sections 153 to 157, no bhumidhar or asami belongingto Scheduled Tribe shall have the right to transfer by way ofsale, gift, mortgage or lease or otherwise any land to person notbelonging to Scheduled Tribe.

FAs per Section 166 of the Act, any transfer made in contraventionof the provisions of the Act shall be void. Since the exchange deed hasbeen executed in violation of the provisions of Section 157-B of the Act,the transfer is void and is liable to be set aside and the land is liable to bevested in the State Government.

G13. As soon as the exchange came to the notice of the competentauthority, cognizance was taken and the Sub-Divisional Officer/AssistantCollector invoked the provisions of Section 166 of the Act and declaredthe exchange deed dated 16.03.1994 void as it was executed in violationof Section 157-B and Section 161 of the Act. The Assistant Collector byorder dated 19.07.2000 ordered the subject land to vest in the State asH

per Section 167 of the Act and directed the respondents to handoverpossession of the land within thirty days.

14. Re. Contention – Land is not an agricultural land:- Onbehalf of the respondents, it was contended that the land in question isnot an “agricultural land” and that it does not fall within the definition of“land” under Section 3(14) of the Act and therefore, provisions of ChapterVIII of the Act are not applicable. The question as to whether particularland is “land” as defined under Section 3(14) of the Act to which theprovisions of U.P. ZA & LR Act are applicable would requiredetermination. The question whether such land is held or occupied forpurposes connected with agriculture, horticulture or animal husbandryhas to be determined in accordance with the provisions of Sections 143and 144 of the Act. Section 3(14) of the Act defines “land” as under:-

3. Definitions.

(14) “Land” except in Sections 109, 143 and 144 and ChapterVIII means land held or occupied for purposes connected withagriculture, horticulture or animal husbandry which includespisciculture and poultry farming.

15. The respondents have placed reliance upon the recitals in theexchange deed in which it is mentioned that the land in question is not an“agricultural land” and also the counter affidavit of the State filed beforethe High Court wherein it is mentioned that the Hotel in the disputedland is situated in the market area of Munsiari township. In this regard,it is pertinent to note that for changing the nature of land from“agricultural” to “abadi”, declaration as stipulated in Sections 143 and144 is required. The provisions under Section 143 of the Act are initiatedsuo motu or on an application moved by bhumidhar with transferablerights and an enquiry is required to be conducted by the Assistant Collectoras prescribed under the Act. Section 143 of the Act reads as under:-

“143. Use of holding for industrial or residential purposes.- (1) Where bhumidhar with transferable rights uses his holdingor part thereof for purpose not connected with agriculture,horticulture or animal husbandry which includes pisciculture andpoultry farming, the Assistant Collector-in-charge of the sub-division may, suo motu or on an application, after making suchenquiry as may be prescribed, make declaration to that effect.

(2) Upon the grant of the declaration mentioned in sub-section (1)the provisions of this chapter (other than this section) shall ceaseto apply to the bhumidhar with transferable rights with respect tosuch land and he shall thereupon be governed in the matter ofdevolution of the land by personal law to which he is subject.

B(3) Where bhumidhar with transferable rights has been granted,before or after the commencement of the Uttar Pradesh LandLaws (Amendment) Act, 1978, any loan by the Uttar PradeshFinancial Corporation or by any other Corporation owned orcontrolled by the State Government, on the security of any landheld by such bhumidhar, the provisions of this Chapter (other thanCthis section) shall cease to apply to such bhumidhar with respectto such land and he shall thereupon be governed in the matter ofdevolution of the land by personal law to which he is subject.”

Where such declaration is made under Section 143 of the Act,the provisions of Chapter-VIII of the U.P. ZA & LR Act (except SectionD143) ceased to apply to the bhumidhar with transferable rights withrespect to such land.

16. It has been held in Chandrika Singh and others v. RajaVishwanath Pratap Singh and another (1992) 3 SCC 90 that in orderto exclude the applicability of provisions of U.P. ZA & LR Act on theEground that the land is abadi land, it is necessary to determine that it isin accordance with the provisions of Sections 143 and 144 of the Actand whether such declaration under Sections 143 and 144 of the Acthas been made in accordance with the provisions of the Act. In paraNos. (9) and (15), it was held as under:-F“9.

“9. The aforesaid provisions show that under Section 331(1)exclusive jurisdiction in respect of suits, applications andproceedings referred to in Schedule II of the Act has been conferredon the courts specified in the said schedule and the saidproceedings, suits and applications cannot be entertained by theGcivil courts. The proviso to Section 331(1) lifts the said bar inrelation to any holding or part thereof where declaration hasbeen made under Section 143. Section 143 empowers the AssistantCollector after making enquiry as may be prescribed, to make adeclaration that holding or part thereof is being used or held bya bhumidar for purposes not connected with agriculture,

horticulture or animal husbandry. Where such declaration is madein respect of part of the holding, the Assistant Collector is requiredto demarcate the said part. The effect of the grant of such adeclaration is that the provisions of Chapter VIII (except Section143) cease to apply to the bhumidar with transferable rights withrespect to such land.

15. ……..In our opinion, the question as to whether particularland is “land” under Section 2(14) to which the provisions of theAct are applicable would require determination of the questionwhether the land is held or occupied for purposes connected withagriculture, horticulture or animal husbandry and that is matterwhich has to be determined either in accordance with theprovisions of Sections 143 and 144 and if such determinationhas not been made and such question arises or is raised in suitbefore court, the procedure laid down in Section 331-A must befollowed by the court. This would be so even in case where abuilding exists on the land and the land is claimed to be appurtenantto the building because in such case it will be necessary todetermine the extent of the land that is appurtenant to the building,i.e. whether the entire land or only part of it is so appurtenant tothe building and for that reason is not held or occupied for purposesconnected with agriculture, horticulture or animal husbandry. Thisdetermination has to be made in accordance with the provisionsof Sections 143 and 144 or Section 331-A of the Act.”

17. In the present case, the respondents have not produced anysuch document which shows that declaration required under Section143 of the Act has been made much less registered. In the absence ofsuch declaration, the land is deemed to be an “agricultural land” as perthe provisions of Section 3(14) of the Act.

18. The respondents placed reliance upon the recitals in theexchange deed to show that the land is not an “agricultural land”. Therecitals in the exchange deed can be of no help to the respondents as thesaid document is self-serving document and cannot operate as adocument to prove that the land is an “abadi land”. Likewise, therespondents sought to place reliance upon the counter affidavit filed bythe appellants where it is averred that the suit property is situated in the

Amarket area of Munsiari township. The averments in the counter affidavitfiled by the State can be of no assistance to the respondents. For claimingthe nature of the land as “abadi land”, declaration as stipulated inSection 143 is required and the said declaration is also required to beregistered. As pointed out earlier, the respondents have not producedany document which shows that the declaration as required under SectionB143 of the Act has been made. In the absence of such declaration, theland cannot be said to be “abadi land”. Since the land is an “agriculturalland”, the provisions of U.P. ZA & LR Act are applicable to the land inquestion.

19. Section 161 of the Act pertains to exchange of land. As perCSection 161 of the Act, bhumidhar may exchange land with anotherbhumidhar or with any Gaon Sabha or local authority, with the priorpermission of an Assistant Collector. Section 161 reads as under:-

“161. Exchange. – (1) bhumidhar may exchange with –

D(a) any other bhumidhar land held by him; or

(b) any Gaon Sabha or local authority, lands for the time beingvested in it under Section 117:

Provided that no exchange shall be made except with thepermission of an Assistant Collector who shall refuse permissionEif the difference between the rental value of land given in exchangeand of land received in exchange calculated at hereditary rates ismore than 10 per cent of the lower rental value.

Insofar as the land belonging to member of Scheduled Tribe,Fexchange is not permissible. Under Section 157-B of the Act, nobhumidhar or asami belonging to Scheduled Tribe, shall have the rightto transfer by way of “sale, gift, mortgage or lease or otherwise anyland to person not belonging to Scheduled Tribe”. The languageused in Section 157-B of the Act “or otherwise” emphasizes that theGland belonging to Scheduled Tribe cannot be transferred in any mannerwhatsoever. It is pertinent to note that in Section 157-A of the Act whichdeals with restrictions on transfer of land by members of ScheduledCastes, the language used is “by way of sale, gift, mortgage or lease toa person not belonging to Scheduled Caste”. Absence of word “orotherwise” in Section 157-A of the Act shows that while exchange mayH

be permissible of land belonging to members of Scheduled Caste to aperson belonging to Scheduled Caste, such an exchange is prohibitedunder Section 157-B of the Act – Restriction on transfer of land of amember of Scheduled Tribe.

20. For the sake of arguments, even assuming that Section 161 ofthe Act is applicable, according to Section 161 of the Act, exchange bya bhumidhar with another bhumidhar or with any Gaon Sabha or localauthority is permissible only with the prior permission of the AssistantCollector. Use of the word “shall” in the proviso to Section 161 of theAct clearly indicates that for valid exchange, it is mandatory to obtainpermission of the Assistant Collector. In the instant case, admittedly, noprior permission was sought from the Assistant Collector as mandated.In the absence of fulfilling of pre-requisite condition as laid down inSection 161 of the Act, the exchange has to be necessarily held to bevoid.

21. Contention of the learned counsel for the respondents is thateven post-facto approval for the exchange is sufficient and need notnecessarily be prior permission. In this regard, learned counsel for therespondents has submitted that the Tehsildar, Munsiari effected mutationin the revenue record which amounts to ex-post facto approval for theexchange. It was also submitted that the respondents preferred projectreport for construction of Hotel at Munsiari and after obtainingnecessary approval from the concerned authorities and by taking loanfrom the financial institutions, the Hotel was constructed andcommissioned in the year 2000 and the approval from various authoritiesfor construction and running the Hotel would amount to ex-post factoapproval. In support of his contention, learned counsel placed relianceupon Life Insurance Corporation of India v. Escorts Ltd. and others(1986) 1 SCC 264.

22. There is no merit in the contention that for exchange of landprior permission under Section 161 of the Act is not required. It is to bepointed out by reading of the provisions of Section 161 of the Act thatthe Assistant Collector shall refuse permission if the difference betweenthe rental value of the land given in exchange and of the land received inexchange calculated as hereditary rates is more than 10% of the lowerrental value. In the instant case, the respondents exchanged 4½ Muthiland (56.25 sq. mtrs. of land) with Mangal Singh’s 12 Nali land (2400 sq.mtrs. of land), the annual rental value for 12 Nali is Rs.2.50/- and for 4½

DEF

AMuthi, it is Rs.0.05/-. The difference between the value of the two isclearly more than 10%. Even assuming that Section 161 of the Act isapplicable, on this ground, the Assistant Collector was bound to refusethe permission even if the respondent had applied for it.

23. As per proviso to Section 161 of the Act, it is incumbent uponBthe Assistant Collector to calculate the rental value of the land given inexchange and of the land received in exchange and if the difference ismore than 10% of the lower rental value then the Assistant Collectorshall refuse the permission. Thus, the pre-requisite condition for grant ofpermission is the calculation of the rental value and if the differencebetween the rental value of land given in exchange and of land receivedCin exchange is more than 10%, then the Assistant Collector shall refusethe permission. The pre-requisite condition of calculation of the rentalvalue clearly suggests that the permission of the Assistant Collector is apre-requisite condition for valid exchange. We have referred to Section161 of the Act only for the sake of completion. As pointed out earlier,DSection 157-B of the Act prohibits even exchange of the land to person

not belonging to Scheduled Tribe.

24. The respondents have not explained as to why Mangal Singh(a member of Scheduled Tribe) wanted to exchange his large extent ofland i.e. 12 Nali (2400 sq. mtrs.) with much smaller piece of land i.e.E4½ Muthi (56.25 sq. mtrs.). This aspect raises doubt about thegenuineness of the exchange deed. This aspect casting doubt upon thevalidity of the exchange deed is further strengthened by the fact that thenames of the respondents have been mutated in the land of MangalSingh in Bandobast Khatuni Khata No.43; whereas the name of MangalSingh has not been mutated in village Khata No.36, Bandobast KhatuniFKhata No.91. These circumstances clearly indicate that the exchangedeed relied upon by the respondents is not valid exchange and hasbeen executed in violation of the provisions of the U.P. ZA & LR Act.

25. U.P. ZA & LR Act is beneficial legislation which has beenenacted to protect the interest of the exploited rural masses. The PreambleGof the U.P. ZA & LR Act shows that it is an Act to provide for theabolition of zamindari system which involves intermediaries betweentiller of the soil and the State in U.P. (adopted by the State of Uttarakhand)and for the acquisition of the rights, title and interest and to reform thelaw relating to land tenure consequent upon such abolition and acquisitionHand to make provisions for other matters connected therewith. Observing

that agriculture is the only source of livelihood for Scheduled Tribesapart from the collection and sale of minor forest produce to supplementtheir income and that it is source of economic empowerment, inSamatha v. State of A.P. and others(1997) 8 SCC 191, it was held asunder:-

“9. Agriculture is the main part of the economy and source oflivelihood to the rural Indians and source and succour for socialstatus and base for dignity of person. Land is tangible productand sustaining asset to the agriculturists. In Waman Rao v. Unionof India (1981) 2 SCC 362 Constitution Bench had observedthat India being predominantly agricultural society, there is a“strong linkage between the land and the person’s status in socialsystem”. The strip of land on which they till and live assures themequal justice and “dignity of their person by providing to them anear decent means of livelihood”. Agricultural land is the foundationfor sense of security and freedom from fear. Assured possessionis lasting source for peace and prosperity.10. Agriculture is the only source of livelihood for Scheduled Tribes,apart from collection and sale of minor forest produce tosupplement their income. Land is their most important natural andvaluable asset and imperishable endowment from which the tribalsderive their sustenance, social status, economic and social equality,permanent place of abode and work and living. It is security andsource of economic empowerment. Therefore, the tribes too havegreat emotional attachment to their lands. The land on which theylive and till, assures them equality of status and dignity of personand means to economic and social justice and is potent weaponof economic empowerment in social democracy.”

The U.P. ZA & LR Act being beneficial legislation, the provisionsneed to be interpreted in manner so as to achieve the rationale behindthe legislation.

26. Despite the alleged exchange said to have been effected in1994, the land in village Khata No.36, Bandobast Khata Khatuni No.91have not been mutated in the name of Mangal Singh. As per the Reportof the Tehsildar dated 04.12.2000, village Khata No.36, Bandobast KhataKhatuni No.91 continue to remain in the name of respondents AkhalaqHussain and Saqir Hussain and there is no noting in the name of MangalSingh.

A27. As per Section 166 of the Act, every transfer made incontravention of the provisions of the U.P. ZA & LR Act shall be void.Section 167 of the Act refers to the consequences which shall ensue inrespect of every transfer which is void by virtue of Section 166 of theAct. Taking us through Appendix-III of U.P. ZA & LR Act, learnedcounsel for the respondents submitted that under Section 167 of the Act,Bthe limitation period is six years from the date of illegal transfer. It wastherefore submitted that suo motu action taken by the Assistant Collector/Pargana Magistrate vide order issued on 19.07.2000 (which is beyondthe period of six years) is barred by limitation. Serial No.20 of Appendix-

III to U.P. ZA & LR Act reads as under:-

28. Even at the outset, it is to be pointed out that Serial No.20 ofEAppendix-III relates to suit for ejectment of sirdar or asami and is notrelevant insofar as void transfers which are made in contravention ofthe provisions of the U.P. ZA & LR Act. If the period of limitation is tobe applied for the void transfers which are made in contravention of theprovisions of the Act, the very object of the U.P. ZA & LR Act would bedefeated. There has to be harmonious construction of the provisionsFof the Act. The instant exchange being void since its inception, the transferbeing void in terms of Section 166 of the Act, the consequences enshrinedin Section 167 of the Act shall automatically follow. Cognizance of theexchange deed was taken by the Pargana Magistrate and it cannot besaid that the order passed on 19.07.2000 is barred by limitation. There isGno merit in the contention that the order passed by the Pargana Magistratedated 19.07.2000 is barred by limitation.

29. Learned counsel for the respondents has submitted that therespondents have availed loan from financial institutions and have beenrunning hotel under the name of “ZARA Resort” and it is their onlyHsource of livelihood. As discussed earlier, Section 157-B of the Act puts

complete bar on bhumidhar or asami belonging to Scheduled Tribeto transfer their land by way of sale, gift, mortgage or lease or otherwiseto person not belonging to Scheduled Tribe. The exchange deed dated16.03.1994 being in contravention to the provisions of the U.P. ZA &LR Act is void. The consequences have to follow as per Section 167 ofthe Act. In case, if the transfer is void under the provisions of the Act,there is no justification to consider the request of the respondents on theground that they are running the Hotel by availing loan from the financialinstitutions. When the transfer has been made in contravention of theprovisions of U.P. ZA & LR Act, there is no ground for considering thequestions of equity. Lest, it would defeat the provisions of the Act.

30. The High Court has ignored the provisions of U.P. ZA & LRAct and held that the provisions of Sections 161 and 157-B of the Act donot apply in case of exchange of land which has been made by executinga document where the stamp duty has been paid as per Indian StampAct and the document duly registered. The High Court erred in sayingthat Section 157-B of the Act does not bar making of exchange by aperson of Scheduled Tribe because he is getting land in exchange. Asdiscussed earlier, there is clear bar under Section 157-B of the Act fortransfer of land by Scheduled Tribe even by way of exchange as theword “or otherwise” indicates. When there is clear statutory provisionbarring the transfer, it was not open to the High Court to substitute itsview in the place of that provision. Any such interpretation would defeatthe benevolent object of the provisions of the U.P. ZA & LR Act andalso the constitutional scheme providing for the social and economicempowerment of the Scheduled Tribes. The order of the High Court iscontrary to the express provisions of U.P. ZA & LR Act and is alsoagainst the benevolent provisions of the Act and the impugned judgmentcannot be sustained.

31. In the result, the impugned judgment of the High Court is setaside and this appeal is allowed. The appellants are at liberty to proceedin accordance with law.

Divya Pandey

Appeal allowed.