Allahabad High Court
Sunil Kumar Singh vs State Of Up And 7 Others on 1 March, 2024
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:37741 Court No. - 5 Case :- WRIT - C No. - 1097 of 2024 Petitioner :- Sunil Kumar Singh Respondent :- State Of Up And 7 Others Counsel for Petitioner :- Poonam Yadav,Raj Karan Yadav,Yadvendra Kumar Yadav Counsel for Respondent :- Azad Rai,C.S.C. Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri Azad Rai, learned counsel for the Gaon Sabha.
2. By means of the present writ petition, the petitioner has prayed for the following reliefs:-
"1). Direct the Sub Divisional Magistrate, Phoolpur, District Prayagraj and Village Pradhan not to make any construction over the land in dispute in respect of plot No.381 area 0.2050 hectare and 382M area 0.1140 hectare Pargana Sikandara, Tehsil Phoolpur, District Prayagraj.
2). Direct the State authority to protect the land of petitioner by encroachment of Gaon Sabha or any other person."
3. It appears that on 30.07.1996, the petitioner has purchased plot No.381, area 0.2050 hectare and plot No.382M, area 0.1140 hectare, total 01 bigha, 08 biswa, situated at village Thanapur, Pargana Sikandara, Tehsil Phoolpur, District Prayagraj from one Maiku who belongs to Scheduled Castes. Before execution of the sale deed in favour of the petitioner, no permission was taken under Section 157-A of U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short 'UPZA&LR Act').
4. A complaint was lodged against the petitioner alleging that the sale deed of the petitioner is void as the same was executed in violation of Section 157-A of UP ZA & LR Act.
5. The case of the petitioner is that the petitioner after the execution of sale deed entered into possession and even if the same is void in view of Section 157-A of UP ZA & LR Act and is vested with the State, the petitioner cannot be evicted except by due process of law. It is further alleged that the respondents No.4 to 7 have encroached upon and raised construction over the land of the petitioner. In the aforesaid backdrop, the prayer extracted above, has been prayed for.
6. It was argued by learned counsel for the petitioner that the respondents No.4 to 7 have encroached upon the land of the petitioner and they raised construction over the said land. Accordingly, it is submitted that it is the case of illegal dispossession by the respondents No.4 to 7 without adopting due process of law. In such view of the fact, the possession of the petitioner should be restored over the land in question.
7. A query was put up to learned counsel for the petitioner to show the pleadings in the writ petition in respect of interference by respondents No.4 to 7 and the respondent No.4 to 7 have constructed a house over the land in dispute. Learned counsel for the petitioner has placed paragraph 9 of the writ petition which is reproduced herein below:-
"9. That the Nayab Tehsildar (East), Tehsil Phoolpur, District Prayagraj referred the case to the Sub Divisional Magistrate, Tehsil Phoolpur, District Prayagraj which is numbered as case No.167 of 2018 Jabar Singh v. Maiku under Section 34/105 of U.P. Revenue Code, 2006 in respect of plot No.381 area 0.2050 hectare and 382M area 0.1140 situated in village Thanapur, Pargana Sikandara, Tehsil Phoolpur, District Prayagraj for declaring the land in Gaon Sabha the aforesaid is pending in the meantime Siddharth Pratap Singh digging the land from J.C.B. and want to take possession in aforesaid plot forcibly as a land-mafia without any legal order from competent court."
8. In paragraph 9 of the writ petition, only a bald averment has been made by learned counsel that the respondent No.4 is trying to take possession over the plot in question forcibly, but the pleading is bereft of fact as to on what date and time, the respondent No.4 tried to dispossess the petitioner. There is no pleading in the writ petition in respect of the fact that the respondent No.4 has constructed a house over the plot in question. The writ petition has been drafted in a very causal manner. In such view of the fact, this Court finds that the writ petition is misconceived.
9. The Court further proceeds to deal with other argument of learned counsel for the petitioner that even if the land is vested with the State and the sale is void in view of Sections 157-A, 166, 167 of UP ZA & LR Act, the petitioner cannot be evicted except in accordance with law. Thus, the petitioner has been illegally dispossessed by the respondent No.4.
10. The Court again sought to clarify from learned counsel for the petitioner that what is the scope of Section 167(2) of UP ZA & LR Act which empowers the Collector to take possession over such land and if the land is not vacated, the Collector can evict him by using force.
11. Learned counsel for the petitioner has placed reliance upon a Full Bench judgement of this Court in the case of Amir Husain and others v. Dy. DIR. of Consoldation and others (Civil Misc. Writ No.321 of 1971), decided on April, 26, 1976 to contend that the vesting of land with State and possession to be taken by the State on account of vesting of land with State are two different things and even if the land is vested with the State, the possession cannot be taken without following due procedure of law as has been held by the Full Bench judgement of this Court in the case of Amir Husain (supra).
12. At this stage, it would be apt to reproduce Sections 166 & 167 of UP ZA & LR Act which are as under:-
"166. Every transfer made in contravention of the provisions of this Act, shall be void.
167.(1) The following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely-
(a) the subject-matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances;
(b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances; and
(c) the transferee may remove other moveable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.
(2) Where any land or other property has vested in the State Government under sub-section (1), it shall be lawful for the Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom. For the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary."
13. It is not in dispute that the petitioner purchased the land from one Maiku who belonged to scheduled caste. The petitioner could not purchase the land without obtaining permission from the Collector as contemplated under proviso to Section 157-A of UP ZA & LR Act.
14. Section 166 of U.P. ZA & LR Act is specific and clear that every transfer made in contravention of the provisions of U.P. ZA & LR Act shall be void. Therefore, in view of
15. Section 166 of UP ZA & LR Act, sale deed executed by one Maiku in favour of the petitioner was void. Section 167 of U.P. ZA & LR Act contemplates the consequences. Section 167 (1) (a) of UP ZA & LR Act provides that the subject-matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances. Further, consequence of such vesting has been provided under Section 167(2) of the UP ZA & LR Act which empowers the Collector to take possession over such land or other property and direct that any person occupying such land or property be evicted therefrom, and if a person does not vacate or evict the land, the Collector can evict him by using force.
16. It is not the case of the petitioner in the writ petition that the Collector never asked him to vacate the land. The Collector in exercise of power conferred by Section 167 (2) of the UP ZA & LR Act, can proceed to dispossess the petitioner and he is not supposed to resort to any proceeding for eviction of the petitioner inasmuch as if that be objected of the legislature, the legislature would not have conferred power upon the Collector to vacate a person and in case he does not vacate the land, he can use force to vacate the land. There is nothing on record to indicate that dispossession of the petitioner was illegal. So far as the Full Bench judgement of this Court relied upon by learned counsel for the petitioner is concerned, it was a case of UP Consolidation of Holdings Act, 1954 where the Full Bench was called upon to consider the scope of Sections 166 & 167 of the UP ZA & LR Act.
17. In such view of the fact, the Full Bench judgement of this Court in the case of Amir Husain (supra) is not applicable in the facts of the present case.
18. Thus, for the reasons given above, the writ petition lacks merit and is dismissed.
Order Date :- 1.3.2024 S.Sharma