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:-

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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

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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.

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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

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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

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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

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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

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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

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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?

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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

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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

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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.

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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

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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:-

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“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.”

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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

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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

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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

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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

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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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