# Smt. Rajeshwari v. Commissioner/Additional Commissioner (J), 4th Division, Meerut & Ors

- **Citation:** (2020) 1 ILRA 1914
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-04
- **Case number:** Writ-C No. 267 of 2019
- **Bench:** Anjani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rajeshwari-v-commissioner-additional-commissioner-j-4th-division-meerut-ors-45084
- **Pages:** 3

## Headnote

Act,
1950
-
Section
157AA/166/167
-
Restrictions
on
transfer by member of schedule castes
becoming Bhumidhar under section 131B - Section 157AA (4) - a person is
entitled to execute a sale deed, etc. in
favour of person(s) belonging to the
Scheduled Caste, such transfer shall not
1916 INDIAN LAW REPORTS ALLAHABAD SERIES
be without prior permission of the
Assistant Collector. (Para 6)

The permission required under Section 157AA
cannot be granted Ex Post Facto because the
permission contemplated by Section 157AA is
for sale by a member of scheduled caste to
another scheduled caste only - amongst
scheduled caste who can purchase land, whose
vendor
has
become
bhumidhar
with
transferable rights under Section 131 B, is to
be determined in the order of preference
provided by the section itself - In Amichandra
Vs. State of U.P. and 2 others. it has been
observed that Section, 157-AA of the Act
permits
transfers
between
two
persons
belonging to the Scheduled Castes only - The
only exception carved out by sub-section (3) of
this Section is that if transferee belonging to a
Schedule Caste is not available. (Para 8)

Held: - The determination of order of preference
etc. under Section 157-AA has to be made prior to
the sale deed or at best on the date of sale deed.
Such a determination being made subsequently,
when circumstances might have undergone a
change, would not be valid. (Para 9)

Writ Petition dismissed. (E-7)

List of cases cited: -

## Text

1 All. Heshamullah & Ors. Vs. The U.P. Sanchalak Chakbandi, Pratapgarh & Ors.
1915
80 and A-81 of Chapter A-V of the Land
Records Manual had not come into force and
were
inserted
only
subsequently
vide
notification dated 18.1.1958 nor did he
consider as to what would be the effect of this
aspect of the matter if there was a Khasra of
1363 F on record with a Class-9 entry in
favour of petitioner's father Abdul Majid.

8. In this view of the matter and for
the reasons aforesaid as the D.D.C. has not
considered the findings and relevant
aspects as have been noted hereinabove
and as were considered by the S.O.C.,
therefore,
based
on
such
nonconsideration,
and
as
all
this
was
considered by the S.O.C., therefore, the
order of the D.D.C. is liable to be set aside
and the matter is liable to be remanded
back for consideration afresh in the light
of what has been stated hereinabove.

9. It is, however, made clear that so far as
the findings of the D.D.C. as to the veracity and
evidentiary value of the irrigation receipts are
concerned, they being based on appreciation of
evidence which cannot be set aside by the Writ
Court under Article 226 of the Constitution, the
said findings pertaining to the irrigation receipts
are not being interfered with and shall attain
finality. Subject to this, reconsideration shall be
made the D.D.C. as aforesaid.

10. The order impugned dated
10.2.1981 contained in Annexure No.13 is
accordingly set aside.

11. The D.D.C. shall dispose off the
proceedings aforesaid within eight months
from the date a certified copy of this order is
submitted, if necessary, by taking up the matter
on day-to-day basis as far as possible.

12. The Court has also taken note of the
interim order dated 5.5.1981 by which it was
ordered that if the petitioners are in possession
of the land in dispute, they shall not be
disturbed. There is nothing on record to show as
to who is in possession of the land in dispute as
of now nor as to who is recorded in respect of
the above at present.

13. Till disposal of the proceedings
by the D.D.C. status quo with regard to
possession of the land in dispute and
entries in the revenue records shall be
maintained and neither of the parties shall
alienate the same.

14. The writ petition is allowed in
part.
----------
(2020)1ILR 1914

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2019

BEFORE
THE HON'BLE ANJANI KUMAR MISHRA, J.

Writ-C No. 267 of 2019

Smt. Rajeshwari ...Petitioner
Versus
Commissioner/Additional Commissioner (J),
4th Division, Meerut & Ors. ...Respondents

Counsel for the Petitioner:
Sri Surendra Pratap Singh

Counsel for the Respondents:
C.S.C.

A. U.P. Zamindari Abolition and Land
Reforms
Act,
1950
-
Section
157AA/166/167
-
Restrictions
on
transfer by member of schedule castes
becoming Bhumidhar under section 131B - Section 157AA (4) - a person is
entitled to execute a sale deed, etc. in
favour of person(s) belonging to the
Scheduled Caste, such transfer shall not
1916 INDIAN LAW REPORTS ALLAHABAD SERIES
be without prior permission of the
Assistant Collector. (Para 6)

The permission required under Section 157AA
cannot be granted Ex Post Facto because the
permission contemplated by Section 157AA is
for sale by a member of scheduled caste to
another scheduled caste only - amongst
scheduled caste who can purchase land, whose
vendor
has
become
bhumidhar
with
transferable rights under Section 131 B, is to
be determined in the order of preference
provided by the section itself - In Amichandra
Vs. State of U.P. and 2 others. it has been
observed that Section, 157-AA of the Act
permits
transfers
between
two
persons
belonging to the Scheduled Castes only - The
only exception carved out by sub-section (3) of
this Section is that if transferee belonging to a
Schedule Caste is not available. (Para 8)

Held: - The determination of order of preference
etc. under Section 157-AA has to be made prior to
the sale deed or at best on the date of sale deed.
Such a determination being made subsequently,
when circumstances might have undergone a
change, would not be valid. (Para 9)

Writ Petition dismissed. (E-7)

List of cases cited: -

1. Amichandra Vs. State of U.P. and 2 others.,
Writ-C No. 4406 of 2015

(Delivered by Hon'ble Anjani Kumar Mishra, J.)

1. Heard counsel for the petitioner
and learned Standing Counsel for the
State-respondents.

2. The petition arises out of
proceedings
under
Section
157AA/166/167 of the U.P Z. A. and Land
Reforms Act and seeks a writ of certiorari
for quashing the orders dated 28.10.2016
passed by the respondent no.2 whereby
certain land purchased by the petitioner
has been ordered to vest in the State as the
sale deed was executed by the vendor
without having obtained prior permission
contemplated under Section 157AA of the
Act.

3. The order dated 17.10.2018
whereby the consequential appeal has been
dismissed by the respondent no.1 is also
impugned.

4. Admittedly one Roogan executed
a registered sale deed on 05.03.2013 of
1/5th part of plot no. 429 situated in
Village and Post Meerpurhindu, Tehsil &
District Ghaziabad in favour of petitioner.
It is also not in dispute that the vendor had
obtained this land on patta and had
become its bhumidhari with transferable
rights, in accordance with Section 131 B
of U.P. Z. A. and L. R. Act. It is also not
in dispute that no prior permission have
been obtained before executing the sale
deed as is required by Section 157AA of
the Act.

5. The contention of the petitioner
before this Court as also before the Court
below is that since both vendor and vendee
belong
to
the
scheduled
caste,
no
permission was required for executing the
sale deed.

6.

This
argument
has
been
considered and repelled in the judgement
dated 10.08.2015 passed in Writ-C No.
4406 of 2015, Amichandra Vs. State of
U.P. and 2 others. The relevant portion of
the said judgement is extracted herein
below:-

"Sub-section
(4)
has
been
introduced which mandates that in case, a
person is entitled to execute a sale deed,
etc. in favour of person(s) belonging to the
Scheduled Caste, such transfer shall not
be without prior permission of the
1 All. Smt. Rajeshwari Vs. Commissioner/Additional Commissioner (J), 4th Division, Meerut & Ors. 1917
Assistant Collector. If this is not the vaild
and correct interpretation of sub-section
(4) of Section 157-AA of the Act, subsections (1) and (2) would be rendered
redundant."

7. The contention therefore raised by
the counsel for the petitioner is without
merit.

8. The second question is whether
the permission required under Section
157AA can be granted Ex Post Facto. In
my considered opinion, the permission
cannot be granted Ex Post Facto because
the permission contemplated by Section
157AA is for sale by a member of
scheduled caste to another scheduled caste
only. However, amongst scheduled caste
who can purchase land, whose vendor has
become bhumidhar with transferable rights
under Section 131 B, is to be determined
in the order of preference provided by the
section itself. In this regard, again it would
be relevant to refer to the judgement of
Amichandra (supra) wherein it has been
observed:-

"Moreover this Section, 157-AA
of the Act permits transfers between two
persons belonging to the Scheduled Castes
only. The only exception carved out by
sub-section (3) of this Section is that if
transferee belonging to a Schedule Caste
is not available. Then a transfer in favour
of a member of a Scheduled tribe may be
permitted
in
accordance
with
the
conditions
and
order
of
preference
specified in the section itself. Even
otherwise, the section provides for various
categories of persons who are entitled to
purchase the land in the order of
preference given. A person in a higher
category shall have preference over a
person in the lower category mentioned.

.................

It therefore necessarily follows
that before a transfer is effected, it has to
be determined as to the category under
which the prospective vendee falls and
whether another person of the Scheduled
Caste, who is in a higher preferential
category
is
available
or
not.
This
determination has to be made and duly
recorded prior to the transfer itself.

It is in this context that subsection (4) has been introduced which
mandates that in case, a person is entitled
to execute a sale-deed, etc. in favour of
person(s) belonging to the Scheduled
Caste, such transfer shall not be without
prior
permission
of
the
Assistant
Collector. If this is not the valid and
correct interpretation of sub-section (4) of
Section 157-AA of the Act sub-sections (1)
and (2) would be rendered redundant.
Moreover, there appears no justification
for obtaining the said permission once a
transfer has already been made."

9. The determination of order of
preference etc. under Section 157-AA has
to be made prior to the sale deed or at best
on the date of sale deed. Such a
determination being made subsequently,
when circumstances might have undergone
a change, would not be valid. Therefore,
even the second contention of counsel for
the petitioner has no merit.

10. In view of the forgoing, the writ
petition
is
without
merit
and
is
accordingly, dismissed.
----------
(2020)1ILR 1916

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2019

BEFORE