There is clear bar under Section 157-B of the Act for transfer of land by a Scheduled Tribe even by

ADDITIONAL COMMISSIONER REVENUE AND OTHERS VERSUS AKHALAQ HUSSAIN AND ANOTHER,CIVIL APPEAL NO.7346 OF 2010.

“In the present case, the respondents have not produced any such document under Section 143 of the Act. 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. 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.”

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

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

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?

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

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.

“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. 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.”

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.

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– Karthik K.P

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