The Additional Commissioner … vs Akhalaq Hussain . on 3 March, 2020


Supreme Court of India

The Additional Commissioner … vs Akhalaq Hussain . on 3 March, 2020

Author: R. Banumathi

Bench: R. Banumathi, A.S. Bopanna

                                                                   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



                                                 JUDGMENT

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
Signature Not Verified

Digitally signed by
MADHU BALA
Date: 2020.03.03
16:18:29 IST
Reason:

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 Sub-

Divisional 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    Section of the    Description         Period of     Time from         Proper Court
 No.           Act            of suit,          limitation   which period           fees
                            application                      begins to run
                             and other
                            proceeding
…………
20.  167                   Suits        for   Six years      From the date      As in the Court
                           ejectment of a                    of       illegal   Fees       Act,
                           sirdar or asami                   transfer           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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