Case: ADDITIONAL COMMISSIONER REVENUE AND OTHERS  Vs. AKHALAQ HUSSAIN AND ANOTHER

2. Brief facts which led to filing of this appeal are as under: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 Resort3. 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 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 days4. 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.915. 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 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 dismissed6. 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, void7. A writ petition was filed by the respondents for quashing of orders dated 19.07.2000, 30.06.2001 and 02.07.2002 and 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.

Court's reasoning:
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 Nali12. Mangal Singh is a member of Scheduled Tribe and this factum has not been disclosed in the exchange deed. As per 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 TribeSince 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 Government13. 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 as per Section 167 of the Act and directed the respondents to handover possession of the land within thirty days17. 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 ActThe 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 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. 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 Tribe20. 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 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 void22. 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 Singhs 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 it23. As per proviso to Section 161 of the Act, it is incumbent upon the Assistant Collector to calculate the rental value of the 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 Tribe24. 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 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 Act26. 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 Singh28. 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 contention that the order passed by the Pargana Magistrate dated 19.07.2000 is barred by limitationAs 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 Act30. 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 sustainedThe 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.