Case Note & Summary
The case involves an appeal by the Additional Commissioner, Revenue and others against the judgment of the Uttarakhand High Court which set aside orders of revenue authorities declaring an exchange of land void. The respondents, Akhalaq Hussain and Saqir Hussain, entered into a registered exchange deed on 16.03.1994 with Mangal Singh, a member of the Scheduled Tribe. The respondents gave 4½ Muthi (56.25 sq.mtrs.) of land in village Vim Patti and received 12 Nali (2400 sq.mtrs.) of agricultural land in village Mall Ghorpatta. The Tehsildar initially allowed mutation on 25.04.1994. However, on 19.07.2000, the Assistant Collector/Pargana Magistrate issued an order under Section 167 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. ZA & LR Act), holding that the exchange violated Section 161(1) as no prior permission was obtained, and that the land vested in the State Government. The respondents' appeal and revision were dismissed by the Additional Judicial Commissioner on 30.06.2001 and the Additional Commissioner (Revenue) on 02.07.2002, respectively. The High Court, in writ petition, allowed the respondents' challenge, holding that Sections 161 and 157-B do not apply to exchanges made by registered deed. The Supreme Court reversed the High Court's decision. The Court held that Section 157-B imposes a complete bar on transfer of land by Scheduled Tribe members to non-Scheduled Tribe persons, and exchange is a transfer covered by the phrase 'or otherwise'. Further, Section 161 requires prior permission for exchange, and failure to obtain it renders the exchange void under Section 166. The Court also noted that the exchange was grossly disproportionate (56.25 sq.mtrs. for 2400 sq.mtrs.), indicating it was a sale in disguise. The limitation period of six years under Appendix-III was satisfied as proceedings began in 2000. The Court restored the orders of the revenue authorities, vesting the land in the State.
Headnote
A) Land Laws - Transfer by Scheduled Tribe - Section 157-B U.P. Zamindari Abolition and Land Reforms Act, 1950 - Complete Bar - Exchange of land by a Scheduled Tribe member to a non-Scheduled Tribe person is a transfer and is prohibited under Section 157-B, which bars sale, gift, mortgage, lease or otherwise any land to a person not belonging to Scheduled Tribe - Held that the exchange deed is void under Section 166 (Paras 11-13). B) Land Laws - Exchange of Land - Section 161 U.P. Zamindari Abolition and Land Reforms Act, 1950 - Prior Permission - A bhumidhar can exchange his land with another bhumidhar only after obtaining prior permission from the Assistant Collector - Failure to obtain such permission renders the exchange void - Held that the High Court erred in holding that Section 161 does not apply to registered exchange deeds (Paras 14-16). C) Land Laws - Vesting of Land - Section 167 U.P. Zamindari Abolition and Land Reforms Act, 1950 - Consequence of Void Transfer - Where a transfer is void under Section 166, the land vests in the State Government from the date of transfer - Held that the Assistant Collector's order vesting the land in the State was valid (Paras 17-18). D) Land Laws - Limitation - Appendix-III Item No.20 U.P. Zamindari Abolition and Land Reforms Act, 1950 - Proceedings under Section 161 - Limitation period of six years from the date of transfer applies - Held that the proceedings initiated in 2000 were within limitation as the transfer was in 1994 (Para 19).
Issue of Consideration
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? 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?
Final Decision
Appeal allowed. Impugned judgment of the High Court dated 18.09.2008 set aside. Orders of the Assistant Collector/Pargana Magistrate dated 19.07.2000, Additional Judicial Commissioner dated 30.06.2001, and Additional Commissioner (Revenue) dated 02.07.2002 restored. The land admeasuring 12 Nali under Khata No.43 stands vested in the State Government from the date of transfer. Respondents directed to remove all movable/immovable properties within thirty days.
Law Points
- Section 157-B of U.P. ZA & LR Act imposes complete bar on transfer of land by Scheduled Tribe members to non-Scheduled Tribe persons
- exchange is a transfer
- Section 161 requires prior permission for exchange
- Section 166 declares void transfers in contravention
- Section 167 provides for vesting of land in State
- limitation period under Appendix-III is six years from date of transfer
