Pankaj Purohit, J
1. Heard learned counsel for the parties.
2. By means of this writ petition, the petitioner has challenged the judgment and order dated 28.11.2023 passed by the Board of Revenue (Full Bench) Dehradun (Annexed as Annexure No. 8 to the writ petition), whereby, Review Petition No.02 of 2022-23, Levin Kumar vs. State of Uttarakhand, was dismissed by the Full Bench of Board of Revenue, Dehradun, against the judgment and order passed by the Board of Revenue dated 01.09.2023 in Revision No.13 of 2022-23, Levin Kumar vs. State of Uttarakhand, as well as the order dated 16.02.2023 passed by the Additional Collector (Finance and Revenue), Haridwar (Annexure No.4 to the writ petition) whereby the Case No.5 of 2021-22, State vs. Levin Kumar and others, was allowed.
3. The facts of the case as reflected from the pleadings are that Levin Kumar has purchased a land comprising in Khatauni Khata No.414ga area admeasuring 0.0078 hectare, Khasra No.415Kha admeasuring 0.0330 hectare, Khasra No.425Ka admeasuring 0.0434 hectare, Khasra No.426Ka admeasuring 0.0961 hectare, total 0.1803 hectare and Khasra No.361Ga, admeasuring 0.2730 hectare of village Raulahedi from Guddu and Suraj Pal s/o Hari Ram, by way of a sale deed dated 27.07.2013. The petitioner belongs to scheduled caste while seller of the land Guddu and Suraj Pal s/o Hari Ram were belonging to scheduled caste. Since the land was allotted to Hari Ram on Patta on 27.01.1976 and later on under Section 131B of the The Uttarakhand Zamindari Abolition and Land Reforms Act, 1950, as amended (hereinafter referred to as the Act) he became bhumidhar with Transferable Rights.
4. According to the provisions contained under Section 157-AA, no person belonging to schedule caste, who has become bhumidhar under Section 131B of the Act, can transfer the said land to any person without previous approval of the Assistant Collector concerned. Section 157-AA of the Act is quoted below:-
“157-AA. Restrictions on transfer by member of Scheduled Castes becoming bhumidhar under Section 131-B- (1) Notwithstanding anything contained in Section 157-A and without prejudice to the restrictions contained in Section 157 to 158, no person belonging to Scheduled Caste having become a Bhumidhar with transferable rights under Section 131B shall have the right to transfer the land by way of sale, gift, mortgage or lease to a person other than a person belonging to a Scheduled Caste and such transfer. if any shall be in the following order of p preference-
(a) land less, agricultural labourer;
(b) marginal farmer;
(c) small farmer; and
(d) a person other than a person referred to in Clauses (a),
(b) and (c).
(2) A transfer in favour of a person referred to in Clause (a) of sub- section (1) shall be made in order of preference given below. If a person referred to in Clause (a) is not available then transfer may be made to person referred to in Clause (b) of the said sub-section and if a person referred to in Clause (b) is also not available then to a person referred to in Clause (c) of the said sub-section if a person referred to in Clause (c) is also not available then to a person referred to in Clause (d) of the said sub-section in the same order of preference :-
(a) first, to the resident of the village where the land is situate;
(b) secondly, if no person referred to in Clause (a) is available, to the resident of any other village within the Panchayat area comprising the village where the land is situate;
(c) thirdly, if no person referred to in Clauses (a) and (b) is available to the resident of a village adjoining the Panchayat area comprising the village where the land is situate.
(3) if no person referred to in sub-section (1) belonging to a Scheduled Caste is available, the land may be transferred to a person belonging to a Scheduled Tribe in the order of preference given in sub-sections (1) and (2).
(4) No transfer under this section shall be made except with the previous, approval of the Assistant Collector concerned.
Explanation- For the purpose of this Section-
(1) 'agricultural labourer' means a person whose main source of livelihood is agricultural labour:
(2) 'landless' means the transferee who or whose wife or husband, as the case may be, or minor children, and where the transferee is a minor, also his or her parents, hold no land as bhumidhar or asami and also hold no land as such within two years immediately preceding the date of transfer;
(3) 'panchayat area' shall have the meaning assigned to it in the United Provinces Panchayat Raj Act. 1947;
(4) 'marginal farmer' means a person residing in a village who holds agricultural land nor exceeding one hectare of un-irrigated land and whose principal means of livelihood is income from agricultural land or by manual labour on such land and includes a person cultivating land as an asami or as a share-cropper;
(5) 'small farmer' means a person residing in a village, who holds un- irrigated land exceeding one hectare but not exceeding two hectares and whose principal source of livelihood is income from agricultural land or by manual labour on such land and includes a person cultivating land as an asami or as a share-cropper.
Note-For the purposes of Clauses (4) and (5) of this explanation:-
(a) One hectare of irrigated land shall be equated to two hectares of un- irrigated land:
(b) 'irrigated land' and 'un-irrigated land' shall have the meanings re- spectively assigned to them in the UP imposition of Ceiling on Land Holdings Act, 1960.”
5. Admittedly, the said land was transferred to the petitioner by Guddu and Suraj Pal without seeking any previous approval of the Assistant Collector concerned and consequently, an application was moved by the Collector under Section 157kaka/166/167 of the Act for a direction to revert back the said land to the State Government free from all encumbrances.
6. The said application was allowed by the learned Additional Collector (Finance and Revenue), Haridwar by a reasoned judgment and order dated 16.02.2023 and the land was directed to be vested in the name of State Government and consequently it was also directed to record the name of the State Government after cancelling the name of the petitioner from the said land.
7. Feeling aggrieved by the said order, the petitioner moved a Revision No.13 of 2023 Levin Kumar vs. State of Uttarakhand and others, before the Board of Revenue, Uttarakhand, Dehradun, but, the Board of Revenue did not find favour with the argument advanced on behalf of the petitioner and after passing a detail order, the said revision was rejected. A futile attempt was made by the petitioner again, by filing a review petition against the judgment passed by the Board of Revenue in the aforesaid Revision No.13 of 2023, but, the same met with the same fate. Now the petitioner is before this Court.
8. It is submitted by the learned counsel for the petitioner very strenuously that the case of the State Government was highly time barred as same was instituted after a period of 09 years from the date of the transfer of the said land in the name of petitioner in the year 2022. The attention of this Court was drawn by the learned counsel for the petitioner to Appendix 3 to the U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereinafter referred to as the Rules) and especially the Entry 19 was placed to the consideration of this Court wherein it has been provided as under:-
|
20. |
163 |
.. |
Suits for ejectment of bhumidhar. |
Six years. |
From the date of illegal transfer. |
As in the Court Fees Act, 1870 on the year’s revenue. |
9. In support of his arguments, learned counsel for the petitioner has placed reliance on the judgment passed by the Hon’ble High Court of Judicature at Allahabad reported in 2007(103) RD 206, Jai Karan vs. Additional Commissioner, Meerut Division, Meerut and others.
10. On the strength of the aforesaid case law, it is argued that the proceedings, which were initiated against the petitioner were highly time barred and the same was filed after a period of 09 years from the date of transfer of the said land in favour of the petitioner.:- para 16 and 17 of the said judgment are quoted herein below:-
“16. Reading the provisions of Section 154 and Sections 163, 166 and 167 together before and after its amendments w.e.f. 3-6-1981 clearly demonstrates that the consequences of void transfer under Section 154 were the ejectment by an action taken by the Gaon Sabha. It is only after the person was ejected that the portion would vest in the State. The limitation for filing a suit for ejectment of a transferee bhumidhar from the excess land by Gaon Sabha in Appendix III made under Rule 338 is six years. It is admitted that Gaon Sabha did not file any suit for ejectment of the petitioner and as such the transfer, which was voidable at the instance of Gaon Sabha was not declared to be void, attracting the consequence under Section 167 of UPZA & LR Act, 1951. The offending sale will attract the law as it stood on the date of such sale. The amendments and deletions in the Act will not affect the consequences of the sale. The petitioner Jai Karan may hold land in excess of 12.5 acres, but he cannot be ejected from the excess land as the transfer was not void on the date of sale i.e. on 19.7.1968 and the Gaon Sabha did not choose to resolve and eject him from the excess land within six years of sale. The Act was amended much after the limitation expired.
17. In the circumstances, leaving the question as to whether stranger can make a complaint in such case, it is held that the petitioner is not liable to be ejected from the land in excess of the ceiling limit acquired by him by registered sale deed on 19.7.1968.”
11. I have perused the judgment relied upon by the learned counsel for the petitioner and I am of the view that the facts of the case in Jai Karan case are different to that of the present case. The transfer of the land was not void on the date of the sale while in the present case the transfer by Guddu and Suraj Pal s/o Hari Ram in favour of Levin Kumar (petitioner) was void-ab-initio for the reason that they cannot transfer the land without previous approval from the Assistant Collector 1st Class. The petitioner cannot be termed as a “bhumidhar” referring the Entry 19 of the Rules of 1952 and, therefore, the petitioner cannot take benefits of entry 19 of the Rules of 1952, being an illegal occupant of the land transferred to him without previous approved of Assistant Collector concerned.
12. In this view of the matter, I do not found any illegality in the judgment and order impugned. Accordingly, the writ petition is dismissed.
