The exchange deed dated 16.03.1994 being in contravention to the provisions of the U.P. ZA & LR Act is void.
As discussed earlier, Section 157-B of the Act puts a complete bar on a bhumidhar or asami belonging to Scheduled Tribe to transfer their land by way of sale, gift, mortgage or lease or otherwise to a person not belonging to Scheduled Tribe.
The exchange deed dated 16.03.1994 being in contravention to the provisions of the U.P. ZA & LR Act is void.
The consequences have to follow as per Section 167 of the 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 the ground that they are running the Hotel by availing loan from the financial institutions.
When the transfer has been made in contravention of the provisions of U.P. ZA & LR Act, there is no ground for considering the questions of equity. Lest, it would defeat the provisions of the Act.
The 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. As discussed earlier, 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 the 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. The order of the High Court is contrary to the express provisions of U.P. ZA & LR Act and is also against the benevolent provisions of the Act and the impugned judgment cannot be sustained.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7346 OF 2010
ADDITIONAL COMMISSIONER REVENUE
AND OTHERS ...Appellants
VERSUS
AKHALAQ HUSSAIN AND ANOTHER ...Respondents
J U D G M E N T
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:-
1
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 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 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
2
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 ½ 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.
3
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 “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 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 prohibited under the provisions of Section
157-B of U.P. ZA & LR Act. According to Section 157-B, no
4
bhumidhar or asami, subject to restrictions as mentioned in
Sections 153 to 157 has any right to transfer by way of sale,
gift, mortgage or lease or otherwise any land to any person not
belonging to Scheduled Tribe. The appeal was thus dismissed.
6. The respondents thereafter filed a revision petition before
the Additional Revenue Commissioner who vide order dated
02.07.2002 dismissed the petition as being without merits. The
Additional Revenue Commissioner accepted the contention of
the Government of Uttarakhand that the exchange of lands in
question is in fact not an exchange but a sale; because total
land of 4 ½ Muthi has been exchanged with larger extent of
land i.e. 12 Nali of land which is not in any way justified. It is the
law that the rental value of the land given in exchange and of
land received in exchange calculated at the hereditary rates
cannot be more than 10% of the lower rental value and in this
case, the difference is a considerable one. According to Section
166 of the Act, the said transfer is against the provisions of law
and is therefore, void.
7. A writ petition was filed by the respondents for quashing
of orders dated 19.07.2000, 30.06.2001 and 02.07.2002 and
5
for issuing a direction to the appellants not to interfere with the
peaceful possession of the respondents. Vide impugned
judgment dated 18.09.2008, the High Court accepted the
contention of the respondents that the provision of Section 161
of U.P. ZA & LR Act does not apply when the exchange is being
made by exchange deed. The High Court opined that the
provisions of Sections 161 and 157-B of U.P. ZA & LR Act do
not apply in case of exchange of the land as is made by
executing the document and the stamp 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 further held
that the authorities have committed error of law in holding that
the permission under Section 161 of U.P. ZA & LR Act was
necessary to be obtained before making exchange of the land.
It was held that the provision of Section 157-B does not bar
making exchange of the land by Scheduled 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
High Court erred in holding that the provisions of Sections 161
6
and 157-B of the Act do not apply in case of exchange of the
land whether exchange is made by executing a registered
document where stamp duty is provided under 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
submitted that Section 157-B imposes a complete bar on the
right of a bhumidhar or asami belonging to the Scheduled Tribe
to transfer their land by way of sale, gift, mortgage or otherwise
to a person not belonging to the Scheduled Tribe. It was
submitted that the reasoning of the High Court is 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 of the U.P. ZA & LR Act. The learned counsel
submitted that the High Court exceeded its power and
jurisdiction under Article 227 of the Constitution in setting aside
the concurrent findings of the Assistant Collector (dated
19.07.2000) and Additional Judicial Commissioner (dated
30.06.2001) and the Additional Commissioner (Revenue)
(dated 02.07.2002). It was submitted that the High Court did
not appreciate that the provisions of U.P. ZA & LR Act and the
7
mere payment of stamp duty will not wipe down the statutory
and mandatory bar under Sections 157-B and 161 of the Act.
9. Per contra, learned counsel appearing for the
respondents submitted that the land in question does not fall
within the definition of “land” under Section 3(14) of the Act and
therefore, the provisions of U.P. ZA & LR Act are not applicable.
Taking us through the exchange deed dated 16.03.1994, the
learned counsel submitted that the fact that the land was not an
“agricultural land” is supported by the fact that the exchange
deed specifically mentions that the land was not an “agricultural
land”. It was further contended that the failure to seek
permission for exchange under Section 161 can never result in
vesting under Section 167 of the Act. It was urged that the
Pargana Adhikari who is of the same level as Tehsildar was not
having the jurisdiction to pass the vesting order and the
Assistant Collector alone is empowered to issue such an order.
It was further urged that the ex-parte order of vesting under
Section 167 of the Act without giving opportunity of hearing to
the respondents is not sustainable. Taking us through
Appendix-III of the U.P. ZA & LR Act, the learned counsel
8
submitted that the limitation for proceedings under Section 161
at Item No. 20 in Appendix-III has been specifically mentioned
as six years from the date of transfer and thus, the proceedings
in the case is barred by limitation; on the contrary, there is no
question whether they are running a hotel/resort from the year
1998 or not and the act of consequent taking over possession
of the State will create great hardship to the respondents who
are already burdened by various loans from the financial
institutions.
10. We have carefully considered the submissions and
perused the impugned judgment and materials on record. The
following points arise for consideration in this appeal:-
(i) Whether the exchange deed dated 16.03.1994 is in
contravention of the provisions of U.P. ZA & LR Act in
view of complete bar for the transfer of land by a
member of Scheduled Tribe under Section 157-B of
the U.P. ZA & LR Act?
(ii) Whether the High Court was right in saying that
permission required under Section 161 of the U.P. ZA
& LR Act is not a requisite condition for the exchange
of land?
9
11. By the exchange deed dated 16.03.1994, the respondents
Akhalaq Hussain and Saqir executed a registered exchange
deed with Mangal Singh (a Member of Scheduled Tribe)
whereby the respondents are said to have given 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 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 Khatauni Khata
No.43 situated in village Mall Ghorpatta, Munsiari, District
Pithoragarh. In this exchange deed, possession of the land
consisting 3½ Muthi of land from Khata No.553 and 1 Muthi of
land from Khata No.554 is said to have been handed over to
Mangal Singh by the respondents. Similarly, Mangal Singh is
said to have handed over possession of the land consisting of
Khatauni Khata Bandobast No.37 and 12 Nali out of
Panchshala Khatauni No.43, the area of which admeasures 12
Nali.
12. Mangal Singh is a member of Scheduled Tribe and this
factum has not been disclosed in the exchange deed. As per
10
Section 157-B of the Act, a bhumidhar or asami belonging to
Scheduled Tribe cannot transfer his land to a person not
belonging to Scheduled Tribe. Section 157-B reads as under:-
157-B. Restrictions on transfer of land by members of Scheduled
Tribes. – (1) Without prejudice to the restrictions contained in Sections
153 to 157, no bhumidhar or asami belonging to a Scheduled Tribe shall
have the right to transfer by way of sale, gift, mortgage or lease or
otherwise any land to a person not belonging to a Scheduled Tribe.
As per Section 166 of the Act, any transfer made in
contravention of the provisions of the Act shall be void. Since
the exchange deed has been 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 be vested in the
State Government.
13. As soon as the exchange came to the notice of the
competent authority, cognizance was taken and the SubDivisional Officer/Assistant Collector invoked the provisions of
Section 166 of the Act and declared the exchange deed dated
16.03.1994 void as it was executed in violation of Section 157-
B and Section 161 of the Act. The Assistant Collector by order
dated 19.07.2000 ordered the subject land to vest in the State
11
as per Section 167 of the Act and directed the respondents to
handover possession of the land within thirty days.
14. Re. Contention – Land is not an agricultural land:- On
behalf of the respondents, it was contended that the land in
question is not 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 Chapter VIII of the Act are not
applicable. The question as to whether a particular land is
“land” as defined under Section 3(14) of the Act to which the
provisions of U.P. ZA & LR Act are applicable would require
determination. The question whether such land is held or
occupied for purposes connected with agriculture, horticulture
or animal husbandry has to be determined in accordance with
the provisions of Sections 143 and 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 Chapter VIII
means land held or occupied for purposes connected with agriculture,
horticulture or animal husbandry which includes pisciculture and poultry
farming.
12
15. The respondents have placed reliance upon the recitals in
the exchange 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 before the High Court wherein it is
mentioned that the Hotel in the disputed land 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 and 144 is
required. The provisions under Section 143 of the Act are
initiated suo motu or on an application moved by a
bhumidhar with transferable rights and an enquiry is required to
be conducted by the Assistant Collector as prescribed under
the Act. Section 143 of the Act reads as under:-
“143. Use of holding for industrial or residential purposes. - (1)
Where a bhumidhar with transferable rights uses his holding or part
thereof for a purpose not connected with agriculture, horticulture or
animal husbandry which includes pisciculture and poultry farming, the
Assistant Collector-in-charge of the sub-division may, suo motu or on an
application, after making such enquiry as may be prescribed, make a
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 cease to apply to
the bhumidhar with transferable rights with respect to such land and he
13
shall thereupon be governed in the matter of devolution of the land by
personal law to which he is subject.
(3) Where a bhumidhar with transferable rights has been granted, before
or after the commencement of the Uttar Pradesh Land Laws
(Amendment) Act, 1978, any loan by the Uttar Pradesh Financial
Corporation or by any other Corporation owned or controlled by the
State Government, on the security of any land held by such bhumidhar,
the provisions of this Chapter (other than this section) shall cease to
apply to such bhumidhar with respect to such land and he shall
thereupon be governed in the matter of devolution of the land by
personal law to which he is subject.”
Where such a declaration is made under Section 143 of the
Act, the provisions of Chapter-VIII of the U.P. ZA & LR Act
(except Section 143) ceased to apply to the bhumidhar with
transferable rights with respect to such land.
16. It has been held in Chandrika Singh and others v. Raja
Vishwanath Pratap Singh and another (1992) 3 SCC 90 that in
order to exclude the applicability of provisions of U.P. ZA & LR
Act on the ground that the land is abadi land, it is necessary to
determine that it is in accordance with the provisions of
Sections 143 and 144 of the Act and whether such a
declaration under Sections 143 and 144 of the Act has been
made in accordance with the provisions of the Act. In para
Nos. (9) and (15), it was held as under:-
14
“9. The aforesaid provisions show that under Section 331(1) exclusive
jurisdiction in respect of suits, applications and proceedings referred to in
Schedule II of the Act has been conferred on the courts specified in the
said schedule and the said proceedings, suits and applications cannot
be entertained by the civil courts. The proviso to Section 331(1) lifts the
said bar in relation to any holding or part thereof where a declaration has
been made under Section 143. Section 143 empowers the Assistant
Collector after making enquiry as may be prescribed, to make a
declaration that a holding or part thereof is being used or held by a
bhumidar for purposes not connected with agriculture, horticulture or
animal husbandry. Where such a declaration is made in respect of a part
of the holding, the Assistant Collector is required to demarcate the said
part. The effect of the grant of such a declaration is that the provisions of
Chapter VIII (except Section 143) cease to apply to the bhumidar with
transferable rights with respect to such land.
………
15. ……..In our opinion, the question as to whether a particular land is
“land” under Section 2(14) to which the provisions of the Act are
applicable would require determination of the question whether the land
is held or occupied for purposes connected with agriculture, horticulture
or animal husbandry and that is a matter which has to be determined
either in accordance with the provisions of Sections 143 and 144 and if
such a determination has not been made and such a question arises or
is raised in a suit before a court, the procedure laid down in Section 331-
A must be followed by the court. This would be so even in a case where
a building exists on the land and the land is claimed to be appurtenant to
the building because in such a case it will be necessary to determine the
extent of the land that is appurtenant to the building, i.e. whether the
entire land or only a part of it is so appurtenant to the building and for
that reason is not held or occupied for purposes connected with
agriculture, horticulture or animal husbandry. This determination has to
be made in accordance with the provisions of Sections 143 and 144 or
Section 331-A of the Act.”
15
17. In the present case, the respondents have not produced
any such document which shows that declaration required
under Section 143 of the Act has been made much less
registered. In the absence of such declaration, the land is
deemed to be an “agricultural land” as per the provisions of
Section 3(14) of the Act.
18. The respondents placed reliance upon the recitals in the
exchange deed to show that the land is not an “agricultural
land”. The recitals in the exchange deed can be of no help to
the respondents as the said document is a self-serving
document and cannot operate as a document to prove that the
land is an “abadi land”. Likewise, the respondents sought to
place reliance upon the counter affidavit filed by the appellants
where it is averred that the suit property is situated in the
market area of Munsiari township. The averments in the
counter affidavit filed by the State can be of no assistance to
the respondents. For claiming the nature of the land as “abadi
land”, a declaration as stipulated in Section 143 is required and
the said declaration is also required to be registered. As
pointed out earlier, the respondents have not produced any
16
document which shows that the declaration as required under
Section 143 of the Act has been made. In the absence of such
declaration, the land cannot be said to be “abadi land”. Since
the land is an “agricultural land”, the provisions of U.P. ZA & LR
Act are applicable to the land in question.
19. Section 161 of the Act pertains to exchange of land. As
per Section 161 of the Act, a bhumidhar may exchange land
with another bhumidhar or with any Gaon Sabha or local
authority, with the prior permission of an Assistant Collector.
Section 161 reads as under:-
“161. Exchange. – (1) A bhumidhar may exchange with –
(a) any other bhumidhar land held by him; or
(b) any Gaon Sabha or local authority, lands for the time
being vested in it under Section 117:
Provided that no exchange shall be made except with the permission
of an Assistant Collector who shall refuse permission if the difference
between the rental value of land given in exchange and of land
received in exchange calculated at hereditary rates is more than 10
per cent of the lower rental value.
…….”
Insofar as the land belonging to a member of Scheduled Tribe,
exchange is not permissible. Under Section 157-B of the Act,
no bhumidhar or asami belonging to a Scheduled Tribe, shall
have the right to transfer by way of “sale, gift, mortgage or
17
lease or otherwise any land to a person not belonging to a
Scheduled Tribe”. The language used in Section 157-B of the
Act “or otherwise” emphasizes that the land belonging to a
Scheduled Tribe cannot be transferred in any manner
whatsoever. It is pertinent to note that in Section 157-A of the
Act which deals with restrictions on transfer of land by
members of Scheduled Castes, the language used is “by way
of sale, gift, mortgage or lease to a person not belonging to a
Scheduled Caste”. Absence of word “or otherwise” in Section
157-A of the Act shows that while exchange may be permissible
of a land belonging to members of Scheduled Caste to a
person belonging to Scheduled Caste, such an exchange is
prohibited under Section 157-B of the Act – Restriction on
transfer of land of a member of a Scheduled Tribe.
20. For the sake of arguments, even assuming that Section
161 of the Act is applicable, according to Section 161 of the Act,
exchange by a bhumidhar with another bhumidhar or with any
Gaon Sabha or local authority is permissible only with the prior
permission of the Assistant Collector. Use of the word “shall” in
the proviso to Section 161 of the Act clearly indicates that for a
18
valid exchange, it is mandatory to obtain permission of the
Assistant Collector. In the instant case, admittedly, no prior
permission was sought from the Assistant Collector as
mandated. In the absence of fulfilling of pre-requisite condition
as laid down in Section 161 of the Act, the exchange has to be
necessarily held to be void.
21. Contention of the learned counsel for the respondents is
that even post-facto approval for the exchange is sufficient and
need not necessarily be prior permission. In this regard,
learned counsel for the respondents has submitted that the
Tehsildar, Munsiari effected mutation in the revenue record
which amounts to ex-post facto approval for the exchange. It
was also submitted that the respondents preferred project
report for construction of a Hotel at Munsiari and after obtaining
necessary approval from the concerned authorities and by
taking loan from the financial institutions, the Hotel was
constructed and commissioned in the year 2000 and the
approval from various authorities for construction and running
the Hotel would amount to ex-post facto approval. In support of
his contention, learned counsel placed reliance upon Life
19
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
land prior permission under Section 161 of the Act is not
required. It is to be pointed out by a reading of the provisions
of Section 161 of the Act that the Assistant Collector
shall refuse permission if the difference between the rental
value of the land given in exchange and of the land received in
exchange calculated as hereditary rates is more than 10% of
the lower rental value. In the instant case, the respondents
exchanged 4½ Muthi land (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 Muthi, it is
Rs.0.05/-. The difference between the value of the two is
clearly more than 10%. Even assuming that Section 161 of the
Act is applicable, on this ground, the Assistant Collector was
bound to refuse the permission even if the respondent had
applied for it.
23. As per proviso to Section 161 of the Act, it is incumbent
upon the Assistant Collector to calculate the rental value of the
20
land given in exchange and of the land received in exchange
and if the difference is more than 10% of the lower rental value
then the Assistant Collector shall refuse the permission. Thus,
the pre-requisite condition for grant of permission is the
calculation of the rental value and if the difference between the
rental value of land given in exchange and of land received in
exchange is more than 10%, then the Assistant Collector shall
refuse the permission. The pre-requisite condition of
calculation of the rental value clearly suggests that the
permission of the Assistant Collector is a pre-requisite condition
for a valid exchange. We have referred to Section 161 of the
Act only for the sake of completion. As pointed out earlier,
Section 157-B of the Act prohibits even exchange of the land to
a person not belonging to a Scheduled Tribe.
24. The respondents have not explained as to why Mangal
Singh (a member of Scheduled Tribe) wanted to exchange his
large extent of land i.e. 12 Nali (2400 sq. mtrs.) with a much
smaller piece of land i.e. 4½ Muthi (56.25 sq. mtrs.). This
aspect raises doubt about the genuineness of the exchange
deed. This aspect casting doubt upon the validity of the
21
exchange deed is further strengthened by the fact that the
names of the respondents have been mutated in the land of
Mangal Singh in Bandobast Khatuni Khata No.43; whereas the
name of Mangal Singh has not been mutated in village Khata
No.36, Bandobast Khatuni Khata No.91. These circumstances
clearly indicate that the exchange deed relied upon by the
respondents is not a valid exchange and has been executed in
violation of the provisions of the U.P. ZA & LR Act.
25. U.P. ZA & LR Act is a beneficial legislation which has been
enacted to protect the interest of the exploited rural masses.
The Preamble of the U.P. ZA & LR Act shows that it is an Act to
provide for the abolition of zamindari system which involves
intermediaries between tiller 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 the law
relating to land tenure consequent upon such abolition and
acquisition and to make provisions for other matters connected
therewith. Observing that agriculture is the only source of
livelihood for Scheduled Tribes apart from the collection and
sale of minor forest produce to supplement their income and
22
that it is a source of economic empowerment, in Samatha v.
State of A.P. and others (1997) 8 SCC 191, it was held as
under:-
“9. Agriculture is the main part of the economy and source of livelihood
to the rural Indians and a source and succour for social status and a
base for dignity of person. Land is a tangible product and sustaining
asset to the agriculturists. In Waman Rao v. Union of India (1981) 2 SCC
362 a Constitution Bench had observed that India being a predominantly
agricultural society, there is a “strong linkage between the land and the
person’s status in social system”. The strip of land on which they till and
live assures them equal justice and “dignity of their person by providing
to them a near decent means of livelihood”. Agricultural land is the
foundation for a sense of security and freedom from fear. Assured
possession is a 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 to supplement
their income. Land is their most important natural and valuable asset and
imperishable endowment from which the tribals derive their sustenance,
social status, economic and social equality, permanent place of abode
and work and living. It is a security and source of economic
empowerment. Therefore, the tribes too have great emotional
attachment to their lands. The land on which they live and till, assures
them equality of status and dignity of person and means to economic
and social justice and is a potent weapon of economic empowerment in
social democracy.”
The U.P. ZA & LR Act being a beneficial legislation, the
provisions need to be interpreted in a manner so as to achieve
the rationale behind the legislation.
23
26. Despite the alleged exchange said to have been effected
in 1994, the land in village Khata No.36, Bandobast Khata
Khatuni No.91 have not been mutated in the name of Mangal
Singh. As per the Report of the Tehsildar dated 04.12.2000,
village Khata No.36, Bandobast Khata Khatuni No.91 continue
to remain in the name of respondents Akhalaq Hussain and
Saqir Hussain and there is no noting in the name of Mangal
Singh.
27. As per Section 166 of the Act, every transfer made in
contravention 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 in respect of every transfer which is void by virtue
of Section 166 of the Act. Taking us through Appendix-III of
U.P. ZA & LR Act, learned counsel for the respondents
submitted that under Section 167 of the Act, the limitation
period is six years from the date of illegal transfer. It was
therefore submitted that suo motu action taken by the Assistant
Collector/Pargana Magistrate vide order issued on 19.07.2000
(which is beyond the period of six years) is barred by limitation.
24
Serial No.20 of Appendix-III to U.P. ZA & LR Act reads as
under:-
Serial
No.
Section of the
Act
Description
of suit,
application
and other
proceeding
Period of
limitation
Time from
which period
begins to run
Proper Court
fees
…………
20. 167 Suits for
ejectment of a
sirdar or asami
Six years From the date
of illegal
transfer
As in the Court
Fees Act,
1870, on the
year’s
revenue.
………………
28. Even at the outset, it is to be pointed out that Serial No.20
of Appendix-III relates to suit for ejectment of a sirdar or asami
and is not relevant insofar as void transfers which are made in
contravention of the provisions of the U.P. ZA & LR Act. If the
period of limitation is to be applied for the void transfers which
are made in contravention of the provisions of the Act, the very
object of the U.P. ZA & LR Act would be defeated. There has to
be a harmonious construction of the provisions of the Act. The
instant exchange being void since its inception, the transfer
being void in terms of Section 166 of the Act, the consequences
enshrined in Section 167 of the Act shall automatically follow.
Cognizance of the exchange deed was taken by the Pargana
Magistrate and it cannot be said that the order passed on
19.07.2000 is barred by limitation. There is no merit in the
25
contention that the order passed by the Pargana Magistrate
dated 19.07.2000 is barred by limitation.
29. Learned counsel for the respondents has submitted that
the respondents have availed loan from financial institutions
and have been running a hotel under the name of “ZARA
Resort” and it is their only source of livelihood. As discussed
earlier, Section 157-B of the Act puts a complete bar on a
bhumidhar or asami belonging to Scheduled Tribe to transfer
their land by way of sale, gift, mortgage or lease or otherwise to
a person not belonging to Scheduled Tribe. The exchange deed
dated 16.03.1994 being in contravention to the provisions of the
U.P. ZA & LR Act is void. The consequences have to follow as
per Section 167 of the 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 the ground that they are running
the Hotel by availing loan from the financial institutions. When
the transfer has been made in contravention of the provisions
of U.P. ZA & LR Act, there is no ground for considering the
questions of equity. Lest, it would defeat the provisions of the
Act.
26
30. The High Court has ignored the provisions of U.P. ZA &
LR Act and held that the provisions of Sections 161 and 157-B
of the Act do not apply in case of exchange of land which has
been made by executing a document where the stamp duty has
been paid as per Indian Stamp Act and the document duly
registered. The 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. As
discussed earlier, 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
the 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. The order of the High
Court is contrary to the express provisions of U.P. ZA & LR Act
and is also against the benevolent provisions of the Act and the
impugned judgment cannot be sustained.
27
31. In the result, the impugned judgment of the High Court is
set aside and this appeal is allowed. The appellants are at
liberty to proceed in accordance with law.
..…………………….J.
[R. BANUMATHI]
..……………………….J.
[S. ABDUL NAZEER]
..……………………….J.
[A.S. BOPANNA]
New Delhi;
March 03, 2020.
28
As discussed earlier, Section 157-B of the Act puts a complete bar on a bhumidhar or asami belonging to Scheduled Tribe to transfer their land by way of sale, gift, mortgage or lease or otherwise to a person not belonging to Scheduled Tribe.
The exchange deed dated 16.03.1994 being in contravention to the provisions of the U.P. ZA & LR Act is void.
The consequences have to follow as per Section 167 of the 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 the ground that they are running the Hotel by availing loan from the financial institutions.
When the transfer has been made in contravention of the provisions of U.P. ZA & LR Act, there is no ground for considering the questions of equity. Lest, it would defeat the provisions of the Act.
The 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. As discussed earlier, 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 the 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. The order of the High Court is contrary to the express provisions of U.P. ZA & LR Act and is also against the benevolent provisions of the Act and the impugned judgment cannot be sustained.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7346 OF 2010
ADDITIONAL COMMISSIONER REVENUE
AND OTHERS ...Appellants
VERSUS
AKHALAQ HUSSAIN AND ANOTHER ...Respondents
J U D G M E N T
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:-
1
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 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 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
2
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 ½ 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.
3
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 “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 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 prohibited under the provisions of Section
157-B of U.P. ZA & LR Act. According to Section 157-B, no
4
bhumidhar or asami, subject to restrictions as mentioned in
Sections 153 to 157 has any right to transfer by way of sale,
gift, mortgage or lease or otherwise any land to any person not
belonging to Scheduled Tribe. The appeal was thus dismissed.
6. The respondents thereafter filed a revision petition before
the Additional Revenue Commissioner who vide order dated
02.07.2002 dismissed the petition as being without merits. The
Additional Revenue Commissioner accepted the contention of
the Government of Uttarakhand that the exchange of lands in
question is in fact not an exchange but a sale; because total
land of 4 ½ Muthi has been exchanged with larger extent of
land i.e. 12 Nali of land which is not in any way justified. It is the
law that the rental value of the land given in exchange and of
land received in exchange calculated at the hereditary rates
cannot be more than 10% of the lower rental value and in this
case, the difference is a considerable one. According to Section
166 of the Act, the said transfer is against the provisions of law
and is therefore, void.
7. A writ petition was filed by the respondents for quashing
of orders dated 19.07.2000, 30.06.2001 and 02.07.2002 and
5
for issuing a direction to the appellants not to interfere with the
peaceful possession of the respondents. Vide impugned
judgment dated 18.09.2008, the High Court accepted the
contention of the respondents that the provision of Section 161
of U.P. ZA & LR Act does not apply when the exchange is being
made by exchange deed. The High Court opined that the
provisions of Sections 161 and 157-B of U.P. ZA & LR Act do
not apply in case of exchange of the land as is made by
executing the document and the stamp 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 further held
that the authorities have committed error of law in holding that
the permission under Section 161 of U.P. ZA & LR Act was
necessary to be obtained before making exchange of the land.
It was held that the provision of Section 157-B does not bar
making exchange of the land by Scheduled 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
High Court erred in holding that the provisions of Sections 161
6
and 157-B of the Act do not apply in case of exchange of the
land whether exchange is made by executing a registered
document where stamp duty is provided under 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
submitted that Section 157-B imposes a complete bar on the
right of a bhumidhar or asami belonging to the Scheduled Tribe
to transfer their land by way of sale, gift, mortgage or otherwise
to a person not belonging to the Scheduled Tribe. It was
submitted that the reasoning of the High Court is 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 of the U.P. ZA & LR Act. The learned counsel
submitted that the High Court exceeded its power and
jurisdiction under Article 227 of the Constitution in setting aside
the concurrent findings of the Assistant Collector (dated
19.07.2000) and Additional Judicial Commissioner (dated
30.06.2001) and the Additional Commissioner (Revenue)
(dated 02.07.2002). It was submitted that the High Court did
not appreciate that the provisions of U.P. ZA & LR Act and the
7
mere payment of stamp duty will not wipe down the statutory
and mandatory bar under Sections 157-B and 161 of the Act.
9. Per contra, learned counsel appearing for the
respondents submitted that the land in question does not fall
within the definition of “land” under Section 3(14) of the Act and
therefore, the provisions of U.P. ZA & LR Act are not applicable.
Taking us through the exchange deed dated 16.03.1994, the
learned counsel submitted that the fact that the land was not an
“agricultural land” is supported by the fact that the exchange
deed specifically mentions that the land was not an “agricultural
land”. It was further contended that the failure to seek
permission for exchange under Section 161 can never result in
vesting under Section 167 of the Act. It was urged that the
Pargana Adhikari who is of the same level as Tehsildar was not
having the jurisdiction to pass the vesting order and the
Assistant Collector alone is empowered to issue such an order.
It was further urged that the ex-parte order of vesting under
Section 167 of the Act without giving opportunity of hearing to
the respondents is not sustainable. Taking us through
Appendix-III of the U.P. ZA & LR Act, the learned counsel
8
submitted that the limitation for proceedings under Section 161
at Item No. 20 in Appendix-III has been specifically mentioned
as six years from the date of transfer and thus, the proceedings
in the case is barred by limitation; on the contrary, there is no
question whether they are running a hotel/resort from the year
1998 or not and the act of consequent taking over possession
of the State will create great hardship to the respondents who
are already burdened by various loans from the financial
institutions.
10. We have carefully considered the submissions and
perused the impugned judgment and materials on record. The
following points arise for consideration in this appeal:-
(i) Whether the exchange deed dated 16.03.1994 is in
contravention of the provisions of U.P. ZA & LR Act in
view of complete bar for the transfer of land by a
member of Scheduled Tribe under Section 157-B of
the U.P. ZA & LR Act?
(ii) Whether the High Court was right in saying that
permission required under Section 161 of the U.P. ZA
& LR Act is not a requisite condition for the exchange
of land?
9
11. By the exchange deed dated 16.03.1994, the respondents
Akhalaq Hussain and Saqir executed a registered exchange
deed with Mangal Singh (a Member of Scheduled Tribe)
whereby the respondents are said to have given 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 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 Khatauni Khata
No.43 situated in village Mall Ghorpatta, Munsiari, District
Pithoragarh. In this exchange deed, possession of the land
consisting 3½ Muthi of land from Khata No.553 and 1 Muthi of
land from Khata No.554 is said to have been handed over to
Mangal Singh by the respondents. Similarly, Mangal Singh is
said to have handed over possession of the land consisting of
Khatauni Khata Bandobast No.37 and 12 Nali out of
Panchshala Khatauni No.43, the area of which admeasures 12
Nali.
12. Mangal Singh is a member of Scheduled Tribe and this
factum has not been disclosed in the exchange deed. As per
10
Section 157-B of the Act, a bhumidhar or asami belonging to
Scheduled Tribe cannot transfer his land to a person not
belonging to Scheduled Tribe. Section 157-B reads as under:-
157-B. Restrictions on transfer of land by members of Scheduled
Tribes. – (1) Without prejudice to the restrictions contained in Sections
153 to 157, no bhumidhar or asami belonging to a Scheduled Tribe shall
have the right to transfer by way of sale, gift, mortgage or lease or
otherwise any land to a person not belonging to a Scheduled Tribe.
As per Section 166 of the Act, any transfer made in
contravention of the provisions of the Act shall be void. Since
the exchange deed has been 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 be vested in the
State Government.
13. As soon as the exchange came to the notice of the
competent authority, cognizance was taken and the SubDivisional Officer/Assistant Collector invoked the provisions of
Section 166 of the Act and declared the exchange deed dated
16.03.1994 void as it was executed in violation of Section 157-
B and Section 161 of the Act. The Assistant Collector by order
dated 19.07.2000 ordered the subject land to vest in the State
11
as per Section 167 of the Act and directed the respondents to
handover possession of the land within thirty days.
14. Re. Contention – Land is not an agricultural land:- On
behalf of the respondents, it was contended that the land in
question is not 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 Chapter VIII of the Act are not
applicable. The question as to whether a particular land is
“land” as defined under Section 3(14) of the Act to which the
provisions of U.P. ZA & LR Act are applicable would require
determination. The question whether such land is held or
occupied for purposes connected with agriculture, horticulture
or animal husbandry has to be determined in accordance with
the provisions of Sections 143 and 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 Chapter VIII
means land held or occupied for purposes connected with agriculture,
horticulture or animal husbandry which includes pisciculture and poultry
farming.
12
15. The respondents have placed reliance upon the recitals in
the exchange 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 before the High Court wherein it is
mentioned that the Hotel in the disputed land 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 and 144 is
required. The provisions under Section 143 of the Act are
initiated suo motu or on an application moved by a
bhumidhar with transferable rights and an enquiry is required to
be conducted by the Assistant Collector as prescribed under
the Act. Section 143 of the Act reads as under:-
“143. Use of holding for industrial or residential purposes. - (1)
Where a bhumidhar with transferable rights uses his holding or part
thereof for a purpose not connected with agriculture, horticulture or
animal husbandry which includes pisciculture and poultry farming, the
Assistant Collector-in-charge of the sub-division may, suo motu or on an
application, after making such enquiry as may be prescribed, make a
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 cease to apply to
the bhumidhar with transferable rights with respect to such land and he
13
shall thereupon be governed in the matter of devolution of the land by
personal law to which he is subject.
(3) Where a bhumidhar with transferable rights has been granted, before
or after the commencement of the Uttar Pradesh Land Laws
(Amendment) Act, 1978, any loan by the Uttar Pradesh Financial
Corporation or by any other Corporation owned or controlled by the
State Government, on the security of any land held by such bhumidhar,
the provisions of this Chapter (other than this section) shall cease to
apply to such bhumidhar with respect to such land and he shall
thereupon be governed in the matter of devolution of the land by
personal law to which he is subject.”
Where such a declaration is made under Section 143 of the
Act, the provisions of Chapter-VIII of the U.P. ZA & LR Act
(except Section 143) ceased to apply to the bhumidhar with
transferable rights with respect to such land.
16. It has been held in Chandrika Singh and others v. Raja
Vishwanath Pratap Singh and another (1992) 3 SCC 90 that in
order to exclude the applicability of provisions of U.P. ZA & LR
Act on the ground that the land is abadi land, it is necessary to
determine that it is in accordance with the provisions of
Sections 143 and 144 of the Act and whether such a
declaration under Sections 143 and 144 of the Act has been
made in accordance with the provisions of the Act. In para
Nos. (9) and (15), it was held as under:-
14
“9. The aforesaid provisions show that under Section 331(1) exclusive
jurisdiction in respect of suits, applications and proceedings referred to in
Schedule II of the Act has been conferred on the courts specified in the
said schedule and the said proceedings, suits and applications cannot
be entertained by the civil courts. The proviso to Section 331(1) lifts the
said bar in relation to any holding or part thereof where a declaration has
been made under Section 143. Section 143 empowers the Assistant
Collector after making enquiry as may be prescribed, to make a
declaration that a holding or part thereof is being used or held by a
bhumidar for purposes not connected with agriculture, horticulture or
animal husbandry. Where such a declaration is made in respect of a part
of the holding, the Assistant Collector is required to demarcate the said
part. The effect of the grant of such a declaration is that the provisions of
Chapter VIII (except Section 143) cease to apply to the bhumidar with
transferable rights with respect to such land.
………
15. ……..In our opinion, the question as to whether a particular land is
“land” under Section 2(14) to which the provisions of the Act are
applicable would require determination of the question whether the land
is held or occupied for purposes connected with agriculture, horticulture
or animal husbandry and that is a matter which has to be determined
either in accordance with the provisions of Sections 143 and 144 and if
such a determination has not been made and such a question arises or
is raised in a suit before a court, the procedure laid down in Section 331-
A must be followed by the court. This would be so even in a case where
a building exists on the land and the land is claimed to be appurtenant to
the building because in such a case it will be necessary to determine the
extent of the land that is appurtenant to the building, i.e. whether the
entire land or only a part of it is so appurtenant to the building and for
that reason is not held or occupied for purposes connected with
agriculture, horticulture or animal husbandry. This determination has to
be made in accordance with the provisions of Sections 143 and 144 or
Section 331-A of the Act.”
15
17. In the present case, the respondents have not produced
any such document which shows that declaration required
under Section 143 of the Act has been made much less
registered. In the absence of such declaration, the land is
deemed to be an “agricultural land” as per the provisions of
Section 3(14) of the Act.
18. The respondents placed reliance upon the recitals in the
exchange deed to show that the land is not an “agricultural
land”. The recitals in the exchange deed can be of no help to
the respondents as the said document is a self-serving
document and cannot operate as a document to prove that the
land is an “abadi land”. Likewise, the respondents sought to
place reliance upon the counter affidavit filed by the appellants
where it is averred that the suit property is situated in the
market area of Munsiari township. The averments in the
counter affidavit filed by the State can be of no assistance to
the respondents. For claiming the nature of the land as “abadi
land”, a declaration as stipulated in Section 143 is required and
the said declaration is also required to be registered. As
pointed out earlier, the respondents have not produced any
16
document which shows that the declaration as required under
Section 143 of the Act has been made. In the absence of such
declaration, the land cannot be said to be “abadi land”. Since
the land is an “agricultural land”, the provisions of U.P. ZA & LR
Act are applicable to the land in question.
19. Section 161 of the Act pertains to exchange of land. As
per Section 161 of the Act, a bhumidhar may exchange land
with another bhumidhar or with any Gaon Sabha or local
authority, with the prior permission of an Assistant Collector.
Section 161 reads as under:-
“161. Exchange. – (1) A bhumidhar may exchange with –
(a) any other bhumidhar land held by him; or
(b) any Gaon Sabha or local authority, lands for the time
being vested in it under Section 117:
Provided that no exchange shall be made except with the permission
of an Assistant Collector who shall refuse permission if the difference
between the rental value of land given in exchange and of land
received in exchange calculated at hereditary rates is more than 10
per cent of the lower rental value.
…….”
Insofar as the land belonging to a member of Scheduled Tribe,
exchange is not permissible. Under Section 157-B of the Act,
no bhumidhar or asami belonging to a Scheduled Tribe, shall
have the right to transfer by way of “sale, gift, mortgage or
17
lease or otherwise any land to a person not belonging to a
Scheduled Tribe”. The language used in Section 157-B of the
Act “or otherwise” emphasizes that the land belonging to a
Scheduled Tribe cannot be transferred in any manner
whatsoever. It is pertinent to note that in Section 157-A of the
Act which deals with restrictions on transfer of land by
members of Scheduled Castes, the language used is “by way
of sale, gift, mortgage or lease to a person not belonging to a
Scheduled Caste”. Absence of word “or otherwise” in Section
157-A of the Act shows that while exchange may be permissible
of a land belonging to members of Scheduled Caste to a
person belonging to Scheduled Caste, such an exchange is
prohibited under Section 157-B of the Act – Restriction on
transfer of land of a member of a Scheduled Tribe.
20. For the sake of arguments, even assuming that Section
161 of the Act is applicable, according to Section 161 of the Act,
exchange by a bhumidhar with another bhumidhar or with any
Gaon Sabha or local authority is permissible only with the prior
permission of the Assistant Collector. Use of the word “shall” in
the proviso to Section 161 of the Act clearly indicates that for a
18
valid exchange, it is mandatory to obtain permission of the
Assistant Collector. In the instant case, admittedly, no prior
permission was sought from the Assistant Collector as
mandated. In the absence of fulfilling of pre-requisite condition
as laid down in Section 161 of the Act, the exchange has to be
necessarily held to be void.
21. Contention of the learned counsel for the respondents is
that even post-facto approval for the exchange is sufficient and
need not necessarily be prior permission. In this regard,
learned counsel for the respondents has submitted that the
Tehsildar, Munsiari effected mutation in the revenue record
which amounts to ex-post facto approval for the exchange. It
was also submitted that the respondents preferred project
report for construction of a Hotel at Munsiari and after obtaining
necessary approval from the concerned authorities and by
taking loan from the financial institutions, the Hotel was
constructed and commissioned in the year 2000 and the
approval from various authorities for construction and running
the Hotel would amount to ex-post facto approval. In support of
his contention, learned counsel placed reliance upon Life
19
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
land prior permission under Section 161 of the Act is not
required. It is to be pointed out by a reading of the provisions
of Section 161 of the Act that the Assistant Collector
shall refuse permission if the difference between the rental
value of the land given in exchange and of the land received in
exchange calculated as hereditary rates is more than 10% of
the lower rental value. In the instant case, the respondents
exchanged 4½ Muthi land (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 Muthi, it is
Rs.0.05/-. The difference between the value of the two is
clearly more than 10%. Even assuming that Section 161 of the
Act is applicable, on this ground, the Assistant Collector was
bound to refuse the permission even if the respondent had
applied for it.
23. As per proviso to Section 161 of the Act, it is incumbent
upon the Assistant Collector to calculate the rental value of the
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land given in exchange and of the land received in exchange
and if the difference is more than 10% of the lower rental value
then the Assistant Collector shall refuse the permission. Thus,
the pre-requisite condition for grant of permission is the
calculation of the rental value and if the difference between the
rental value of land given in exchange and of land received in
exchange is more than 10%, then the Assistant Collector shall
refuse the permission. The pre-requisite condition of
calculation of the rental value clearly suggests that the
permission of the Assistant Collector is a pre-requisite condition
for a valid exchange. We have referred to Section 161 of the
Act only for the sake of completion. As pointed out earlier,
Section 157-B of the Act prohibits even exchange of the land to
a person not belonging to a Scheduled Tribe.
24. The respondents have not explained as to why Mangal
Singh (a member of Scheduled Tribe) wanted to exchange his
large extent of land i.e. 12 Nali (2400 sq. mtrs.) with a much
smaller piece of land i.e. 4½ Muthi (56.25 sq. mtrs.). This
aspect raises doubt about the genuineness of the exchange
deed. This aspect casting doubt upon the validity of the
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exchange deed is further strengthened by the fact that the
names of the respondents have been mutated in the land of
Mangal Singh in Bandobast Khatuni Khata No.43; whereas the
name of Mangal Singh has not been mutated in village Khata
No.36, Bandobast Khatuni Khata No.91. These circumstances
clearly indicate that the exchange deed relied upon by the
respondents is not a valid exchange and has been executed in
violation of the provisions of the U.P. ZA & LR Act.
25. U.P. ZA & LR Act is a beneficial legislation which has been
enacted to protect the interest of the exploited rural masses.
The Preamble of the U.P. ZA & LR Act shows that it is an Act to
provide for the abolition of zamindari system which involves
intermediaries between tiller 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 the law
relating to land tenure consequent upon such abolition and
acquisition and to make provisions for other matters connected
therewith. Observing that agriculture is the only source of
livelihood for Scheduled Tribes apart from the collection and
sale of minor forest produce to supplement their income and
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that it is a source of economic empowerment, in Samatha v.
State of A.P. and others (1997) 8 SCC 191, it was held as
under:-
“9. Agriculture is the main part of the economy and source of livelihood
to the rural Indians and a source and succour for social status and a
base for dignity of person. Land is a tangible product and sustaining
asset to the agriculturists. In Waman Rao v. Union of India (1981) 2 SCC
362 a Constitution Bench had observed that India being a predominantly
agricultural society, there is a “strong linkage between the land and the
person’s status in social system”. The strip of land on which they till and
live assures them equal justice and “dignity of their person by providing
to them a near decent means of livelihood”. Agricultural land is the
foundation for a sense of security and freedom from fear. Assured
possession is a 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 to supplement
their income. Land is their most important natural and valuable asset and
imperishable endowment from which the tribals derive their sustenance,
social status, economic and social equality, permanent place of abode
and work and living. It is a security and source of economic
empowerment. Therefore, the tribes too have great emotional
attachment to their lands. The land on which they live and till, assures
them equality of status and dignity of person and means to economic
and social justice and is a potent weapon of economic empowerment in
social democracy.”
The U.P. ZA & LR Act being a beneficial legislation, the
provisions need to be interpreted in a manner so as to achieve
the rationale behind the legislation.
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26. Despite the alleged exchange said to have been effected
in 1994, the land in village Khata No.36, Bandobast Khata
Khatuni No.91 have not been mutated in the name of Mangal
Singh. As per the Report of the Tehsildar dated 04.12.2000,
village Khata No.36, Bandobast Khata Khatuni No.91 continue
to remain in the name of respondents Akhalaq Hussain and
Saqir Hussain and there is no noting in the name of Mangal
Singh.
27. As per Section 166 of the Act, every transfer made in
contravention 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 in respect of every transfer which is void by virtue
of Section 166 of the Act. Taking us through Appendix-III of
U.P. ZA & LR Act, learned counsel for the respondents
submitted that under Section 167 of the Act, the limitation
period is six years from the date of illegal transfer. It was
therefore submitted that suo motu action taken by the Assistant
Collector/Pargana Magistrate vide order issued on 19.07.2000
(which is beyond the period of six years) is barred by limitation.
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Serial No.20 of Appendix-III to U.P. ZA & LR Act reads as
under:-
Serial
No.
Section of the
Act
Description
of suit,
application
and other
proceeding
Period of
limitation
Time from
which period
begins to run
Proper Court
fees
…………
20. 167 Suits for
ejectment of a
sirdar or asami
Six years From the date
of illegal
transfer
As in the Court
Fees Act,
1870, on the
year’s
revenue.
………………
28. Even at the outset, it is to be pointed out that Serial No.20
of Appendix-III relates to suit for ejectment of a sirdar or asami
and is not relevant insofar as void transfers which are made in
contravention of the provisions of the U.P. ZA & LR Act. If the
period of limitation is to be applied for the void transfers which
are made in contravention of the provisions of the Act, the very
object of the U.P. ZA & LR Act would be defeated. There has to
be a harmonious construction of the provisions of the Act. The
instant exchange being void since its inception, the transfer
being void in terms of Section 166 of the Act, the consequences
enshrined in Section 167 of the Act shall automatically follow.
Cognizance of the exchange deed was taken by the Pargana
Magistrate and it cannot be said that the order passed on
19.07.2000 is barred by limitation. There is no merit in the
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contention that the order passed by the Pargana Magistrate
dated 19.07.2000 is barred by limitation.
29. Learned counsel for the respondents has submitted that
the respondents have availed loan from financial institutions
and have been running a hotel under the name of “ZARA
Resort” and it is their only source of livelihood. As discussed
earlier, Section 157-B of the Act puts a complete bar on a
bhumidhar or asami belonging to Scheduled Tribe to transfer
their land by way of sale, gift, mortgage or lease or otherwise to
a person not belonging to Scheduled Tribe. The exchange deed
dated 16.03.1994 being in contravention to the provisions of the
U.P. ZA & LR Act is void. The consequences have to follow as
per Section 167 of the 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 the ground that they are running
the Hotel by availing loan from the financial institutions. When
the transfer has been made in contravention of the provisions
of U.P. ZA & LR Act, there is no ground for considering the
questions of equity. Lest, it would defeat the provisions of the
Act.
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30. The High Court has ignored the provisions of U.P. ZA &
LR Act and held that the provisions of Sections 161 and 157-B
of the Act do not apply in case of exchange of land which has
been made by executing a document where the stamp duty has
been paid as per Indian Stamp Act and the document duly
registered. The 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. As
discussed earlier, 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
the 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. The order of the High
Court is contrary to the express provisions of U.P. ZA & LR Act
and is also against the benevolent provisions of the Act and the
impugned judgment cannot be sustained.
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31. In the result, the impugned judgment of the High Court is
set aside and this appeal is allowed. The appellants are at
liberty to proceed in accordance with law.
..…………………….J.
[R. BANUMATHI]
..……………………….J.
[S. ABDUL NAZEER]
..……………………….J.
[A.S. BOPANNA]
New Delhi;
March 03, 2020.
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