IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 83 of 2009 Smt. Ramwati …..Appellant. Versus Chandra Gopal and others. …Respondents. Present:- Mr. K.S. Bhaskar, Advocate for the appellant. Mr. K.P. Upadhyay, Additional Chief Standing Counsel for the State of Uttarakhand. Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Sudhanshu Dhulia, J. Barin Ghosh, C.J, (Oral) We have considered the averments made in the application for condonation of delay (CLMA No. 2724 of 2010) in preferring the restoration application (MCC No. 250 of 2010), and being satisfied with the reasons furnished for delay in preferring the restoration application, we allow the application for condonation of delay. Inasmuch as, learned counsel for the petitioner, as stated, failed to mark the matter in the list and since the same was a fault on the part of the counsel engaged by a client and taking into account that a client should not suffer for the fault on the part of his counsel, we allow the restoration application. Admit. By consent of the parties, we have heard the appeal without notice to the private respondent, inasmuch as, the private respondent is not involved in the matter complained of in the writ petition. Section 157A of the U.P. Zamindari Abolition and Land Reforms Act, 1950 imposes restrictions on the transfer of land by members of Schedule Castes. In terms thereof, the restriction applies when the transfer is to be 2 effected by a Scheduled Caste to a Non Scheduled Caste. However, Section 157AA, contains a non-obtantive clause and thereby provides that notwithstanding what has been provided in Section 157A, a Scheduled Caste may transfer land to a Scheduled Caste, but in the order of preference mentioned in the said Section. For that purpose, Sub-section 4 thereof makes it a requirement to obtain previous approval of the concerned Assistant Collector. Thus, while there is no restriction for transfer of land by a Scheduled Caste to another Scheduled Caste, but still such transfer is required to be made in accordance with the preference mentioned in Section 157-AA and the Assistant Collector has been empowered to say whether such transfer is being made in accordance with such preference. In the instant case, the private respondent is a Scheduled Caste, who had transferable bhumidhari land. He proposed to transfer the same to the petitioner, who is also a Scheduled Caste. In order to effect such transfer, the private respondent applied to the concerned Assistant Collector to seek his approval for such transfer. Before the approval came, by executing a registered deed of transfer private respondent transferred the land in question to the appellant. Subsequent thereto, the concerned Assistant Collector granted approval to the private respondent to effect such transfer. On the basis of the registered instrument of transfer, petitioner applied for mutation. At that stage, it was noticed that the said transfer was effected before the approval of the concerned Assistant Collector was granted. It was accordingly held that the said transfer was without the approval of the Assistant Collector, and accordingly, is contrary to the mandate of the Act, and as such, the transfer is bad. By the order impugned in the 3 writ petition, the land has been directed to vest in the State. The learned Judge, having noticed the provisions contained in Section 157-AA of the Act, held that the transfer was contrary to the provisions of the Act and accordingly upheld the order. A look at Section 157-A and Section 157-AA of the Act would make it amply clear that the said provisions had been inserted in the Statute as a beneficial legislation for protecting the interest of Scheduled Castes. While Section 157-A says that a Scheduled Caste may transfer land belonging to him to another Scheduled Caste but not to others, Section 157-AA authorises such transfer by a Scheduled Caste to another Scheduled Caste in the order of preference as mentioned in Section 157-AA of the Act. The previous approval of the concerned Assistant Collector, as is the requirement of Section 157-AA in respect of such transfer, is only to ensure that the transfer proposed is in accordance with the preference mentioned in the said Section. While a requirement for obtaining approval of the Assistant Collector is a mandate of Section 157-AA, it has not been mandated how soon it shall be obligatory on the part of the Assistant Collector to grant such approval or to refuse to grant such approval. The fact remains that the private respondent being the vendor of the land in question did apply for obtaining such approval before he executed and registered instrument of transfer. The Assistant Collector, no sooner applied his mind to the said application, found that the applicant is entitled to obtain approval and accordingly accorded such approval. If the concerned Assistant Collector had acted on the date the application was filed or soon thereafter the impasse as has been created by reason of his application 4 of mind to the application subsequent to registration of the transfer deed could be avoided. In the circumstances, taking into account the true purport of the provisions of Section 157-A and Section 157-AA of the Act, the Authority concerned instead of directing vesting of the land in the State should have allowed the mutation as was applied for, inasmuch as, the purpose of beneficial aspects thought of by the Legislature while incorporating Section 157-A and Section 157-AA stands in fact achieved. We, accordingly, allow the appeal, set aside the judgment and order under appeal and at the same time, allow the writ petition and quash the order impugned in the writ petition and direct the respondent Authorities to mutate the land in question in favour of the appellant. (Sudhanshu Dhulia, J.) (Barin Ghosh, C.J.) 23.3.2011 Rathour