# Smt. Kusum v. State of U.P. And Others

- **Citation:** (2019) 1 ILRA 1035
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-29
- **Case number:** Writ C No. 20580, 20578, 20579 of 2012
- **Bench:** Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kusum-v-state-of-u-p-and-others-44396
- **Pages:** 6

## Headnote

Reforms Act, 1951 - Sections 157 AA and
131 B- Transfer under section 157 AA -
the permission of Assistant Collector is
required when transfer is made by a
person belonging to Scheduled Caste
who
has
become
bhumidhar
with
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
transferable right under section 131 B in
favour
of
a
person
belonging
to
Scheduled Caste - "except with the
previous
approval"

indicates
that
approval of the Assistant Collector is a
condition precedent for such transfer
 (Para 20)

Writ petition dismissed. (E-6)

## Text

1 All. Smt. Kusum Vs. State of U.P. And Others
1035
11 under section 10 of the Act. The
aforesaid view is supported by a judgment
of Hon'ble Supreme Court in the case of
Gafoora
and
another
vs.
Deputy
Director of Consolidation, Meerut and
others, reported in [(1975) 2 SCC 568].

18. At this juncture, learned counsel
appearing for the respondent no.2 has
relied upon a judgment rendered by this
Court on 23.08.2011 in Civil Misc. Writ
Petition No.31552 of 2011, Sudhir
Kumar Goswami vs. District Director
of Consolidation/Deputy Director of
Consolidation and others to emphasize
that the proceedings under section 12 of
the Act cannot be said to be summary
proceedings for the reason that the
provisions of section 7 to 11 of the Act
apply mutatis mutandis in so far as the
proceedings
under
section
12
are
concerned.

19. As far the proposition of law laid
down in the said judgment in the case of
Sudhir Kumar Goswami (supra), there
cannot be any quarrel, however, what is
noticeable is the fact that the statutory bar
created by section 11-A specifically
comes in the way of the claim put forth by
the respondent no.2 in the land in question
on the basis of the alleged will deed said
to have been executed in his favour by
Ram
Karan-original
recorded
tenure
holder.

20. In view of the discussions made
above, this Court does not have any doubt
to observe that any claim of respondent
no.2 would thus be barred by operation of
the provisions of section 11-A of the Act.
Accordingly, even if it is presumed,
though it is being disputed by the
petitioner, that the order dated 05.02.2002
passed by the Consolidation Officer was
an ex-parte order, remitting the matter
back to the Consolidation Officer will not
serve any purpose for the reason that
claim of the respondent no.2 is barred by
statutory prescription under section 11-A
of the Act.

21. In view of the discussions made
and reasons given above, the writ petition
deserves to be allowed. Accordingly, the
writ petition is allowed. The order dated
27.04.2019 passed by the Deputy Director
of Consolidation, Ayodhya as is contained
in annexure no.1 to the writ petition is
hereby quashed.

22. Consequences to follow.

23. There will be no order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2019

BEFORE
THE HON'BLE RAJIV JOSHI, J.

Writ - B No. 14209 of 2012 connected with
Writ C No. 20580, 20578, 20579 of 2012

Smt. Kusum ...Petitioner
Versus
State of U.P. And Others ...Respondents

Counsel for the Petitioner:
Sri Deepak Kaushik

Counsel for the Respondents:
C.S.C., Sri Anuj Kumar, Sri A.K. Umrao,
Sri M.N. Singh.

A. U.P Zamindari Abolition and Land
Reforms Act, 1951 - Sections 157 AA and
131 B- Transfer under section 157 AA -
the permission of Assistant Collector is
required when transfer is made by a
person belonging to Scheduled Caste
who
has
become
bhumidhar
with
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
transferable right under section 131 B in
favour
of
a
person
belonging
to
Scheduled Caste - "except with the
previous
approval"

indicates
that
approval of the Assistant Collector is a
condition precedent for such transfer
 (Para 20)

Writ petition dismissed. (E-6)
(Delivered by Hon'ble Rajiv Joshi, J.)

1. In these four writ petitions the
facts as well as the point arising for
determination, being identical, they all are
being decided by this common judgment.
Smt. Kusum is the petitioner in all these
petitions while respondent No. 5 is
different one.

2. Heard Sri Deepak Kaushik,
learned counsel for the petitioner, Sri A.
K. Umrao, Advocate holding brief of Sri
M.N. Singh, learned counsel for the
respondent and Sri Anuj Kumar, learned
counsel for respondent No. 4.

3. The question that poses for
consideration in these petitions is as to
whether, the permission of the Assistant
Collector is necessary under Section 157AA of the U.P. Act No. 1 of 1951, if the
transfer is made to a person belonging to
Scheduled Castes?

4. Briefly stated, the relevant facts
of the case are that one Buddhu son of
Newla was allotted land of Khata No.
1240 measuring area 0-10-0, Khata
No.1264 measuring area 1-4-0 and Khata
No. 1270 measuring area 0-5-0 on
02.11.1975 for agricultural purposes.
Budhu had five sons namely Satish,
Dharm Raj, Dharm Pal, Soraj and Pappu.
After the death of Buddhu, name of his
son Satish -Respondent No.5 in this writ
petition was recorded in the revenue
record who executed a registered sale
deed in favour of his wife Smt. Kusum
(petitioner in all the writ petition) on
12.11.2010. Similarly, Respondent No. 5
in other writ petitions namely Dharm Raj,
Dharm Pal and Soraj, all sons of Buddhu,
have executed registered sale deeds in
favour of petitioner on the same date.

5. The proceeding was initiated
against the petitioner by issuing a notice
under Section 157-AA of the U.P. Act
No. 1 of 1951 (hereinafter referred as
"Act, 1951) on the ground that the sale
deed was executed by respondent No. 5 in
favour of petitioner who is the wife of
respondent No. 5 and sister-in-law of
respondent no. 5 in connected petitions,
without obtaining any permission from
the concerned collector as they become
bhumidhar under Section 131- B (1) of
the Act, 1951.

6. The petitioner in all the writ petitions
having received the above notice on
23.04.2011, filed an objection before the
concerned authorities. Ultimately, an order
was
passed
by
Assistant
Collector
(Administration) Meerut on 04.07.2011, by
which the objection of the petitioner was
rejected and the sale deed in favour of the
petitioner was declared to be void having
been executed without obtaining permission
from the Collector and the land was directed
to be vested in the State as per Section 166/
167 of the Act. Against that order, a revision
was preferred by the petitioner which too
was
dismissed
by
the
Additional
Commissioner
(Administration)
Meerut
Division,
Meerut
vide
order
dated
20.10.2011.

7. Both these orders dated 4.7.2011
and 20.10.2011 are impugned in the
present writ petitions.
1 All. Smt. Kusum Vs. State of U.P. And Others
1037

8. Contention of learned counsel for the
petitioner is that respondent No. 5 became
bhumidhar with transferable rights since ten
years period has expired from the date of grant
of lease and further that no permission was
required since the transfer had been made on
12.11.2010 in favour of the petitioner, who is
also a member of Scheduled Caste. Learned
Counsel for the petitioner next contends that
under Section 157-AA, the permission is
required only when the transfer is made in
favour of a person other than Scheduled
Castes and, therefore, no permission is
required if the transfer is made by the person
belonging to the same casts. According to the
learned counsel, the writ petitions deserve to
be allowed by quashing the impugned orders.

9. On the other hand, learned
counsel for Goan Sabha submits that the
permission under Section 157-AA is
necessary as the respondents were lease
holders in view of provision of section
131-B of the Act and, therefore, they have
to
obtain
the
permission
and
the
impugned orders have rightly been passed
by the authorities concerned.

10. I have considered the rival
submissions so raised by the counsel for
the parties and perused the record.

11. The issue which arises for
determination in these petitions is as to
whether for the transfer made under
Section 157-AA of the Act by a lease
holder belonging to Scheduled Castes in
favour of the person who also belongs to
the Scheduled Castes, the permission of
the Assistant Collector is required or not
?"

12. According to the counsel for
petitioner, the permission is required only
when the transfer is made to a person
belonging
to
other
castes.
Learned
counsel for petitioner has referred to
Clause (1) of Section 157-AA of the Act.

13. In support of his submission, learned
counsel for the petitioner has also relied upon
a judgment in the case of Ramey Vs. State of
UP & Others reported in 2015 (2) ADJ 392
in which it is held that in view of the
provisions of Section 157-AA of the Act, in
cases where vendor and vendee both belong
to Scheduled Caste, permission of the
Collector/ Assistant Collector would not be
necessary prior to execution of the sale-deed.
The relevant paragraphs No. 10 and 11 of the
aforesaid judgment are quoted hereinunder:-

"10. The undisputed facts are that
both the parties to the sale belong to the
Scheduled Castes. Section 157-AA provides
that no person belonging to the Scheduled
Caste and having become a Bhumidhar with
transferable rights under Section 131-B shall
have the right to transfer land by way of sale,
gift, mortgage or lease to a person other than
the persons belonging to the Scheduled
Castes. Sub Section 4 of Section 157-AA
provides that no such transfer shall be made
except with the previous approval of the
concerned Assistant Collector.

11. In my opinion since both the
parties belong to the Scheduled Caste the
rigour of Section 157-AA would have no
application in the present case and
permission of the Collector/Assistant
Collector would not be necessary prior to
executing the sale deed dated 12.12.2003.
In this view of the matter, in my opinion
the impugned orders dated 16.01.2006
and 19.01.2007 are both illegal and are
therefore quashed."

14. For appreciating the submission
of learned Counsel for the petitioner, it is
necessary to look into the scheme of the
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
Act with regard to transfer under the U.P.
Zamindari Abolition and Land Reforms
Act, 1950. Section 131-B provides that
bhumidhar with non-transferable rights
will
become
a
bhumidhar
with
transferable rights after ten years. The
restriction for transfer of land is contained
under Section 157-A and 157-AA, which
are being quoted herein below:

"157-A. Restrictions on transfer
of land by members of Scheduled Castes.-
(1) Without prejudice to the restrictions
contained in Section 153 to 157, no
bhumidhar, or asami belonging to a
Scheduled Caste shall have the right to
transfer any land by way of sale, gift,
mortgage or lease to a person not
belonging to a Scheduled Caste, except
with the previous approval of the
Collector:

Provided that no such approval
shall be given by the Collector in case
where the land held in Uttar Pradesh by
the transferor on the date of application
under this section is less than 1.26
hectares or where the area of land so held
in Uttar Pradesh by the transferor on the
said date is after such transfer, likely to
be reduced to less than 1.26 hectares.

(2) The Collector shall, on an
application made in that behalf in the
prescribed manner, make such inquiry as
may be prescribed.

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 153
to 157, no person belonging to a
Scheduled
Caste
having
become
a
Bhumidhar with transferable rights under
Section 131-B 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 preference:

(a)
landless
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 belonging to Clause (a) of Subsection (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 a person
referred to in Clause (b) of the said subsection 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 Clause (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 Subsection (1) belonging to a Scheduled Tribe is
available, the land may be transferred to a
person belonging to a Scheduled Caste in the
order of preference given in Sub-sections (i)
and (2).

(4) No transfer under this
section shall be made except with the
1 All. Smt. Kusum Vs. State of U.P. And Others
1039
previous
approval
of
the
Assistant
Collector concerned."

15. The provisions of Section 157-A
contains a restriction that no bhumidhar or
asami belonging to a Scheduled Caste
shall have the right to transfer any land by
way of sale, gift, mortgage or lease to a
person not belonging to a Scheduled
Caste,
except
with
the
previous
permission of the Collector.

16. Section 157-AA provides that no
person belonging to a Scheduled Castes
having
become
a
bhumidhar
with
transferable rights under Section 131-B
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 shall
be in the order of preference as contained
in Sub-section (1) of Section 157-AA.

17. There is a clear distinction
between the restrictions contained under
Section 157-A and Section 157-AA.
Section
157-A
provides
that
no
bhumidhar or asami belonging to a
Scheduled Caste can transfer the land to a
person not belonging to the Scheduled
Caste except with the previous approval
of the Collector whereas Section 157-AA
contains a clear restriction that a person
belonging to Scheduled Caste who have
become bhumidhar with transferable
rights under Section 131 -B shall have no
right to transfer to any person other than
person belonging to Scheduled Caste. The
transfer
under
Section
157-AA
is
permissible only to a person belonging to
Scheduled
Castes
in
the
order
of
preference as prescribed in Sub-section
(1).
Thus,
Scheduled
Caste
cannot
transfer the land in favour of a person not
belonging to Scheduled Caste in any
contingency. Further, this restriction is on
reasonable basis since land which has
been contemplated under Section 157-AA
is a land which is allotted to a person
belonging to Scheduled Caste.

18. Sub-section (4) of Section 157AA contains an injunction to the effect
that no transfer under this section shall be
made except with the previous approval
of the Assistant Collector concerned. Subsection (4) is in a very wide terms when it
refers to "transfer under this section". This
clearly means that it embraces itself all
the transfers which are contemplated in
Section 157-AA. Thus, even if the
transfer is by a Scheduled Caste in favour
of a Scheduled Caste, it is fully covered
by the restrictions contained under Subsection (4) of Section 157-AA. In case,
the interpretation as put by learned
Counsel for the petitioner to Sub-section
(4) of Section 157-AA is accepted, then
the restrictions put under this Sub-section
(4) will be meaningless and redundant.
There is valid reason for requiring
previous permission of the Assistant
Collector. The reason which is deciphered
from the scheme of section is, that even
the transfer by a bhumidhar belonging to
Scheduled Caste to a person belonging to
Scheduled Caste shall be in accordance
with the preference mentioned in Subsection (1).

19. A Scheduled Caste who is
bhumidhar with transferable right under
Section 131-B has no free choice of
transfer to any Scheduled Caste of his
own choice. The order of preference
given under Sub-section (1) has its own
object and purpose. The object obviously
is that if transfer is made, the said transfer
shall first go to landless agricultural
labourer and thereafter to marginal
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
farmer. The reason obviously is that the
land being a lease land, the rights of a
lessee have to be regulated in a manner
which may advance the object and
purpose of the Act. Thus, the prior
approval of the Assistant Collector is
contemplated which is obviously to
consider and decide as to whether
permission can be accorded and the
transfer which is sought, is in accordance
with the Scheme of Sub-section (1) of
Section 157-AA.

20. In view of the discussion made
above, this Court is of the considered view
that permission is also required when a
transfer is made by a person belonging to
Scheduled Caste who has become bhumidhar
with transferable right under Section 131-B in
favour of a person belonging to Scheduled
Caste. In the present case, the transfer was
made
without
obtaining
previous
approval/permission of Assistant Collector
concerned. The words " except with the
previous approval" used in sub section (4) of
section 157-AA, indicates that approval of the
Assistant Collector concerned is a condition
precedent for such transfer.

21. The judgment in the case of
Ramey (Supra) relied on by the counsel
for petitioner is on the different facts in
which even the mandatory restriction
contained in Sub-Section (4) of Section
157-AA,
has
not
been
considered.
Therefore, any decision delivered without
taking
into
consideration
even
the
mandatory provision, cannot be said to be
laying down a good law and hence this
Court has no hesitation in holding the said
judgment to be per incuriam.

22. In view of the above discussion,
there appears to be no illegality or
infirmity in the orders impugned dated
4.7.2011 and 20.10.2011 contained in
annexure 6 & 8 to the writ petition.

23. In the result, the writ petition
lacks
merit
and
is,
accordingly,
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2019

BEFORE
THE HON'BLE RAJIV JOSHI, J.

Writ - B No. 679 of 2019

Satya Narain ...Petitioner
Versus
Deputy Director of the Consolidation and
Others ...Respondents.

Counsel for the Petitioner:
Sri Kailash Nath Singh

Counsel for the Respondents:
C.S.C., Sri Dharmendra Kumar Tripathi,
SriS.C. Tripathi, Sri S.N. Tripathi.

A. U.P. Consolidation of Holdings Act,
1953-Rule 111 is directory and not
mandatory.
Section 48 (1) - Revision- Dismissed by
DDC holding non-compliance of Rule 111
of U.P Consolidation of Holding Rules,
1954 - The question for consideration in
the present case is with regard to the
compliance of Rule 111-Held, sufficient
explanation was given by the petitioner
before DDC for not filing the certified
copy of the order passed by CO - (Paras
18 to 24)

Writ petition allowed. (E-6)

(Delivered by Hon'ble Rajiv Joshi, J.)

1. Present writ petition has been
filed
challenging
the
order
dated