# Smt. Saidan v. Board of Revenue, Allahabad & Ors

- **Citation:** (2023) 1 ILRA 779
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-06
- **Case number:** Writ B No. 3586 of 2018
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-saidan-v-board-of-revenue-allahabad-ors-49187
- **Pages:** 6

## Headnote

Civil Law - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 -
Section 157-A - Restrictions on transfer of
land by members of Scheduled Castes -
Auction sale - bar of Section 157-A of the
U.P. Z.A. & L.R. Act will not apply in
respect to the auction sale proceeding -
780 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 157-A of the U.P.Z.A. & L.R. Act
does not apply to a distraint sale for
recovery
of
dues
by
the
bank
in
accordance
with
law,
as
such,
the
restriction
of
prior
permission
from
Collector could not apply (Para 12)

Civil Law - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 -
Section 157-A - Disputed plot initially
recorded in the name of a scheduled
caste - due to his failure to repay a loan,
the mortgaged land was attached and
put up for auction - In the auction
proceeding,
the
petitioner,
who
belonged to upper caste, emerged as the
highest bidder, and a sale deed was
executed in his favour - On complaint
that property in question originally
belonged to scheduled caste, as such,
same cannot be transferred to the
petitioner, who belonged to upper caste,
without obtaining permission from the
Collector - On said complaint Additional
Collector expunged the name of the
petitioner from the revenue records and
vested the property in favour of the
State - Held - borrower who was the
owner of the property belonged to the
scheduled caste - property of the
borrower was auctioned as per the U.P.
Z.A. & L.R. Act - after the auction took
place and affirmed, the said sale deed
was executed in favour of the petitioner
by the State, as such, the bar of section
157-A will not apply in the matter (Para
11)

Allowed. (E-5)

List of Cases cited:

## Text

1 All. Smt. Saidan Vs. Board of Revenue, Allahabad & Ors.
779
proceeded upon a tangent and ignoring the
principles as attracted to the dispute in
question de-hors the provisions of the
Partnership Act and the parties have also
not brought on record the requisite
evidence
which
could
support
the
respective contentions, hence, this Court is
of the clear view that it cannot be said that
the order of remand is bad in the given
circumstance.

47. In the instant case, the matter does
require a re-look and in the aforesaid
circumstances this Court is satisfied that the
order dated 20.09.2022 passed by the Deputy
Director of Consolidation remanding the
matter for decision afresh does not suffer
from any error.

48. The fact that the parties have been
litigating since long may not be the only
reason for this Court to intervene as the
questions which are involved have not been
looked into by the Courts below, hence, in the
aforesaid circumstances, the remand was the
only option and thus taking care of the
apprehension that the parties have been
litigating since several years, this aspect can
be taken care by directing the parties to
appear before the Consolidation Officer
concerned on 05.01.2023 and the parties shall
be entitled to file any additional evidence
they wish to file in support of their
contentions in light of the issues raised before
the Court within a period of three weeks of
putting their appearance and thereafter the
matter be decided by fixing dates on weekly
basis within a further period of four weeks by
affording a reasonable opportunity of hearing
to the parties but without granting any
unnecessary adjournments on any ground
except in exceptional circumstances.

49. It is made clear that any
observations by this Court may not be
treated as an expression of opinion on
merits but was for the limited purpose to
assess the respective contentions of the
parties in juxtaposition to test the order of
remand passed by the Deputy Director of
Conosolidation,
hence,
the
Court
of
Consolidation Officer shall be free to
decide the controversy on its own merits, in
light of the issues and observations noticed
in this judgment and on the basis of the
evidence on record strictly, in accordance
with law.

50.

Keeping
the
order
dated
20.09.2022 intact subject to the directions
and observations as noted above, the
petition is dismissed. In the facts and
circumstances, there shall be no order as to
costs.
----------
(2023) 1 ILRA 779
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2022

BEFORE
THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 3586 of 2018

Smt. Saidan ...Petitioner
Versus
Board of Revenue, Allahabad & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Tiwari

Counsel for the Respondents:
C.S.C., Sri Arun Kumar Pandey

Civil Law - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 -
Section 157-A - Restrictions on transfer of
land by members of Scheduled Castes -
Auction sale - bar of Section 157-A of the
U.P. Z.A. & L.R. Act will not apply in
respect to the auction sale proceeding -
780 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 157-A of the U.P.Z.A. & L.R. Act
does not apply to a distraint sale for
recovery
of
dues
by
the
bank
in
accordance
with
law,
as
such,
the
restriction
of
prior
permission
from
Collector could not apply (Para 12)

Civil Law - Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 -
Section 157-A - Disputed plot initially
recorded in the name of a scheduled
caste - due to his failure to repay a loan,
the mortgaged land was attached and
put up for auction - In the auction
proceeding,
the
petitioner,
who
belonged to upper caste, emerged as the
highest bidder, and a sale deed was
executed in his favour - On complaint
that property in question originally
belonged to scheduled caste, as such,
same cannot be transferred to the
petitioner, who belonged to upper caste,
without obtaining permission from the
Collector - On said complaint Additional
Collector expunged the name of the
petitioner from the revenue records and
vested the property in favour of the
State - Held - borrower who was the
owner of the property belonged to the
scheduled caste - property of the
borrower was auctioned as per the U.P.
Z.A. & L.R. Act - after the auction took
place and affirmed, the said sale deed
was executed in favour of the petitioner
by the State, as such, the bar of section
157-A will not apply in the matter (Para
11)

Allowed. (E-5)

List of Cases cited:

1. Ram Saran Vs The 1st Addl. District Judge,
Rampur and Others, Civil Misc. Writ Petition
No.28205/1992 1981 All. L.J. 794 794,

2. Harmal Vs Special / Addl. District Judge,
decided on 1.10.1992

3. Shyam Sunder and Others Vs Deputy Director
of Consolidation, Sitapur & ors. 2019 0 Supreme
(All) 37
(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Santosh Kumar Tiwari,
counsel for the petitioner, Sri Arun Kumar
Pandey, counsel for the respondent - gaon
sabha and the learned standing counsel for
respondent nos. 1 & 2.

2. Brief facts of the case are that khata
no.4. khasra no.6/12, area 1.265 hectare
situated at mauja- Sabuwala, Pargana-
Badhapur, Tehsil- Nagina, District Bijnor,
was initially recorded in the name of Amar
Singh, son of Sukke who belongs to the
scheduled caste community. Amar Singh
had taken a loan from Khadi Gramodyog
by mortgaging the aforesaid land but the
borrower failed to repay the amount,
accordingly, the mortgaged land was
attached and put to auction. In the auction
proceeding, petitioner was the highest
bidder, accordingly, the sale deed was
executed in favour of the petitioner on the
basis of auction sale took place on
21.12.2000. On the basis of the sale deed,
name of the petitioner was recorded in the
revenue
records
through
mutation
proceeding. Some complaints were lodged
by respondent nos. 4 to 10 before the
Additional Collector stating that property in
question originally belongs to scheduled
caste, as such, same cannot be transferred
to
the
petitioner,
without
obtaining
permission
from
the
Collector.
The
Additional Collector without affording any
opportunity of hearing to the petitioner,
passed an ex parte order dated 6.10.2008,
expunging the name of the petitioner from
the revenue records and vesting the
property in favour of the State. Petitioner
filed
a
restoration
application, delay
condonation
application
and
stay
application
against
the
order
dated
6.10.2008 but the Additional Collector has
1 All. Smt. Saidan Vs. Board of Revenue, Allahabad & Ors.
781
dismissed the restoration application of the
petitioner vide order dated 9.4.2009 on the
ground that petitioner was not party in the
proceeding,
hence
the
order
dated
6.11.2008, cannot be recalled / set aside on
the application of the petitioner. Petitioner
under the legal advice, challenged the
orders dated 6.10.2008 and 9.4.2009 before
the District Consumer Redressal Forum,
Bijnor by means of filing a Complaint Case
No.167/2009 which was dismissed on
1.1.2011 on the ground that Forum has no
jurisdiction to decide the dispute. After
receiving the certified copies of the order
and other relevant documents, petitioner
approached counsel for taking necessary
steps in the matter, accordingly, a revision
was filed before the Board of Revenue on
22.12.2017 along with an application under
Section 5 of the Limitation Act supported
by an affidavit. The Board of Revenue,
without considering the case of the
petitioner on merit, has dismissed the
revision filed by the petitioner on the
ground of limitation. Hence, this writ
petition.

3. This Court while entertaining the
writ petition has passed the following
interim order dated 23.4.2018:-

"It is contended on behalf of the
petitioner that Plot No.4 area 1.265 hectare
has been purchased by the petitioner in
auction. Owner of the said land, namely,
Amar Singh had taken loan from Khadi
Gramodyog by mortgaging the aforesaid
land in favour of the Khadi Gramodyog.
Due to default in payment of loan amount,
the said land was put to auction and the
petitioner being a highest bidder had
purchased the said land. A copy of the sale
deed executed by the concerned authority is
on record as Annexure No.1 to the writ
petition.
It
is
stated
that
without
considering the matter in its proper
perspective, the second application of the
petitioner has wrongly been rejected by the
Board of Revenue.

The matter needs consideration.

Learned Standing Counsel has
accepted notice on behalf of the respondent
no.3.

Issue notice to the respondent
nos. 4 to 10.

Counter affidavit be filed by all
the respondents on or before date fixed.

List this case on 28th August
2018.

Till the next date of listing, both
the parties shall maintain status quo with
regard to the property in dispute."

4. In pursuance of the order dated
23.4.2018, respondent no.3 has filed his
counter affidavit and petitioner has filed his
rejoinder affidavit also. Service upon
respondent nos.4 to 10 is deemed sufficient
as per office report dated 27.8.2018.

5.

Counsel
for
the
petitioner
submitted that petitioner had purchased the
land in question in an auction sale being the
highest bidder, accordingly, the sale deed
was executed in favour of the petitioner by
the State, as such, the bar of Section 157-A
of the U.P.Z.A. & L.R. Act cannot be
imposed upon the petitioner in spite of the
fact that borrower belongs to the scheduled
caste community. He further submitted that
on the basis of the auction sale, a sale
certificate and sale deed executed in favour
of the petitioner, the name of petitioner was
recorded in the revenue records but without
affording opportunity of hearing to the
petitioner, petitioner's entry has been
expunged and the land was ordered to be
vested in the State. He also submitted that
the recall / restoration application filed by
the petitioner has been dismissed on the
782 INDIAN LAW REPORTS ALLAHABAD SERIES
arbitrary ground that petitioner was not
party in the proceeding under Section 157A, as such, there is no necessity to afford
opportunity to the petitioner. He further
submitted that revision filed before the
Board of Revenue against the order of the
Additional
Collector
was
barred
by
limitation but the delay was properly
explained, the Board of Revenue has
dismissed the revision on the ground of
limitation which is illegal.

6. Counsel for the petitioner placed
reliance upon the judgment reported in
1981 All. L.J. 794 794, Ram Saran vs.
The 1st Addl. District Judge, Rampur
and Others, Civil Misc. Writ Petition
No.28205/1992, Harmal vs. Special /
Addl.
District
Judge,
decided
on
1.10.1992, 2019 0 Supreme (All) 37,
Shyam Sunder and Others vs. Deputy
Director of Consolidation, Sitapur and
Others. Counsel for the petitioner, on the
basis of the aforesaid judgments, submitted
that bar of Section 157-A of the U.P. Z.A.
& L.R. Act will not apply in respect to the
auction sale proceeding. Counsel for the
petitioner further placed reliance upon the
judgment reported in AIR 1987 SC 1353,
Collector, Land Acquisition Anantnag
and Another vs. Mst. Kantiji & Others
on the point that in place of deciding the
dispute on technical grounds, the matter
should be adjudicated on merit. It is also
submitted that the writ petition be allowed
and the petitioner, who is a parda nasheen
lady is entitled to the relief claimed in the
writ petition.

7. On the other hand, learned standing
counsel submitted that revision filed by the
petitioner before the Board of Revenue was
filed with inordinate delay of about 7 years,
as such, the revision was rightly dismissed
by the Board of Revenue on the ground of
limitation. He further submitted that
sufficiency of cause and reality of cause are
two different things and while considering
the reality of cause, there can be no liberal
view of the matter, as such, case law cited
by counsel for the petitioner in the case of
Collector, Land Acquisition Anantnag
and
Another
(supra),
will
not
be
applicable. He further submitted that the
land has been rightly vested in the State as
provisions of Section 157-A of the U.P.
Z.A. & L.R. Act is fulfilled.

8. I have considered the arguments
advanced by counsel for the parties and
perused the records.

9. There is no dispute about the fact
that the petitioner is the highest bidder in
the auction sale proceeding which was held
on 21.12.2000 and the sale deed was
accordingly executed in favour of the
petitioner by State after holding auction of
the property belonging to borrower who
belongs to scheduled caste community. The
name of the petitioner was accordingly
recorded in the revenue records but the
proceedings under Section 157-A have
been initiated and the land of the petitioner
has been vested in the State after expunging
his name. The revision filed by the
petitioner with delay before the Board of
Revenue was dismissed on the ground of
limitation.

10. For appreciating the controversy
involved in the instant petition, a perusal of
Section 157-A of the Act will be necessary
which is as follows:

"157-A Restrictions on transfer
of land by members of Scheduled
Castes.-

(1) Without prejudice to the
restriction contained in Sections 153 to
1 All. Smt. Saidan Vs. Board of Revenue, Allahabad & Ors.
783
157, no bhumidhar or asami belonging to
a scheduled caster 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."

11. The perusal of the Section 157-A
of the U.P. Z.A. & L.R. Act fully
demonstrates that when a person belonging
to the scheduled caste, is transferring his
property to a person not belonging to a
scheduled caste, the previous approval of
the Collector is mandatory but in the
present case the borrower who was the
owner of the property belong to the
scheduled caste and the property of the
borrower was auctioned according to the
provisions contained under the U.P. Z.A. &
L.R. Act and the Rules framed thereunder,
after the auction took place and affirmed,
the said sale deed was executed in favour
of the petitioner by the State, as such, the
bar of section 157-A will not apply in the
matter.

12. This Court in Shyam Sunder
(supra) has considered the controversy
relating to Section 157-A and has held that
Section 157-A of the U.P.Z.A. & L.R. Act
does not apply to a distraint sale for recovery
of dues by the bank in accordance with law,
as such, the restriction of prior permission
from Collector could not apply. Paragraph
no.10 of the judgment in Shyam Sunder
(supra) is as follows:

"10.
As
regards
the
other
contention based on Section 157-A of the Act,
1950 is concerned, the said provision intents
to protect the Schedule Caste persons from
exploitation or fraudulent transaction under
undue
influence,
coercion
etc.
The
transaction at hand is not such a transaction
but is a transaction permissible in law for
recovery of dues. Here also the provision
applies to a bhoomidhar, Asami belonging to
a Schedule Caste, who shall have the right to
transfer any land by way of sale, gift,
mortgage or lease to a person not belonging
to a Schedule Caste, with the previous
approval of the Collector. This does not
apply to a distraint sale for recovery of dues
by a Bank in accordance with law as is the
case at hand. In this regard also there is a
direct decision on the point reported in 1981
RD 252; Ram Saran Vs. 1st Additional
District Judge, Rampur and Ors. wherein it
has been held that the said restriction of
prior permission from Collector applies to
voluntary sale by the Bhoomidhar but not to
forced sale undertaken under the coercive
steps and distraint prescribed under the Act,
1989
and
the
Rules,
1971
referred
hereinabove. The principle contained therein
applies to this case also."

13. Paragraph no.7 of the judgment
rendered in Ram Saran (supra) is also relevant
which is as follows:-

"7. Learned counsel for the
petitioner has particularly relied on Section
23(2) of the Act which provides that nothing
in sub-section (1) shall apply to any sale
784 INDIAN LAW REPORTS ALLAHABAD SERIES
made under order of court in execution of
any decree or order for payment of money.
The Legislature was aware of the fact that
the sale by an auction may come up for
consideration in execution of a decree which
specifically excludes the said sale under
Section 23 of the Act. No such specific
provision has been made under Section 157A of the Act. In the circumstances Section 23
does not advance the arguments made on
behalf of the petitioner but in fact supports
the view which I have already taken above.
In any case as I have already stated above
here it is not a case for transfer by the
petitioner in favour of a third party. It is a
case of an auction sale held in pursuance of
the decree by the court passed against the
petitioner."

14. Considering the provisions of
Section 157-A of the U.P.Z.A. & L.R. Act as
well as ratio of law laid down in Shyam
Sunder (supra) & Ram Saran (supra), it is
very much clear that bar of Section 157-A of
the U.P. Z.A. & L.R. Act will not be
applicable in the present matter where the
sale deed has been executed after auction sale
by state in favour of petitioner who belongs
to upper caste irrespective of the fact that
earlier owner of the land who was borrower,
belongs to scheduled caste community.

15. So far as the dismissal of revision
by the Board of Revision on the ground of
limitation is concerned, the Apex Court in the
case
of
Collector,
Land
Acquisition
Anantnag and Another (supra) has held that
in place of deciding the dispute on technical
ground, the controversy should be conducted
on merits.

16. In the present case, since the bar of
Section 157-A of the U.P. Z.A. & L.R. Act is
not applicable, as such, the Board of Revenue
in place of dismissing the revision on
limitation, should have considered the
revision on merit, as such, the impugned
revisional order cannot be sustained in the
eyes of law. The order impugned passed by
the Additional Collector, rejecting the recall
application of the petitioner on the ground
that petitioner has no authority in the
proceeding under Section 157-A of the
U.P.Z.A. & L.R. Act, is also erroneous.

17.

Considering
the
facts
and
circumstances of the case as well as the ratio
of law laid down by this Court, the right of
the petitioner cannot be infringed and the
property cannot be vested in the State due to
bar contained under Section 157-A of the U.P.
Z.A. & L.R. Act, as such, the impugned order
dated 23.2.2018 passed by the Board of
Revenue and orders dated 9.4.2009 and
6.10.2008 passed by the Additional Collector
(Administration), District Bijnor are liable to
be set aside and the same are hereby set aside.

18. The writ petition stands allowed
and the petitioner's entry shall remain intact
on the basis of the sale deed executed in
favour of the petitioner on 27.3.2001 in
respect of the disputed plots.

19. No order as to costs.
----------

(2023) 1 ILRA 784
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 15899 of 1985

Harbar Chamar ...Petitioner
Versus
Board of Revenue U.P. at Allahabad & Ors.
 ...Respondents