Allahabad High Court
Surajmal vs State Of U.P. And Others on 9 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 39, (2020) 146 REVDEC 560 (2020) 1 ALL WC 699, (2020) 1 ALL WC 699
Author: Y.K. Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 58 Case :- WRIT - C No. - 18035 of 2007 Petitioner :- Surajmal Respondent :- State of U.P. and Others Counsel for Petitioner :- O.P. Rai Counsel for Respondent :- C.S.C. Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. The present petition has been filed seeking to challenge the order dated 13.04.2004 passed by the Additional District Magistrate, Ghaziabad whereby the application filed by the petitioner seeking permission for transfer of certain land parcels had been turned down and also the order dated 11.10.2006 whereby the revision filed against the said order has also been rejected by the Additional Commissioner, Meerut Division, Meerut.
2. Contention on behalf of the petitioner is that permission had been sought under Section 157-A of the U.P. Zamindari Abolition and Land Reforms Act, 19501 for the purposes of transfer of land by the petitioner who belongs to a scheduled caste, to a person not belonging to a scheduled caste.
3. It is stated that the land held by the petitioner on the date of the application was 2.656 hectares, and even after the proposed transfer for which permission was being sought the land remaining with the petitioner would be 1.698 hectares. It is further submitted that the land in question having not been received by the petitioner by way of lease or by virtue of the provisions contained under Section 122-B (4-F) of the ZA & LR Act the orders impugned rejecting his application for permission are erroneous and are legally unsustainable.
4. Per contra, learned Standing Counsel appearing for the State-respondents has submitted that the plots in question bearing khasra no.412/1, area 0.266 hectares and khasra no.512, area 0.487 hectares were originally recorded in the names of Nanak Chand, Jai Singh, Jaipal and Kanwarpal, respectively, as bhumidhars with non-transferable rights.
5. It has been pointed out that these persons had been declared to be bhumidhars with transferable rights in terms of an order dated 29.12.1997 and they in turn had transferred the land parcels in favour of the petitioner and accordingly in view of the bar contained under sub-section (5) of Section 157-AA of the ZA & LR Act the petitioner had no further right to transfer the land before the expiry of a period of ten years from the date of transfer in his favour, and for the said reason the permission sought by the petitioner had been declined. It is contended that the orders impugned do not suffer from any illegality and the petition is liable to be dismissed.
6. Counsel for the parties have been heard.
7. The question which falls for consideration in the present case is with regard to the nature of the rights of a transferee under sub-section (1) of Section 157-AA to further transfer the land by way of sale or otherwise and the restrictions thereon.
8. In order to appreciate the controversy the relevant statutory provisions may be referred to.
9. Section 131-B, as inserted by U.P. Zamindari Abolition and Land Reforms (Amendment) Act, 19952 with effect from January 14, 1995, was brought in with the main object to confer transferable rights on persons who were bhumidhars with non-transferable rights immediately before commencement of the aforementioned Amendment Act, 1995 and had been such bhumidhar for a period of ten years or more. Section 131-B referred to above is being extracted below:-
"131-B. Bhumidhar with non-transferable rights to become bhumidhar with transferable rights after ten years.--(1) Every person who was a bhumidhar with non-transferable rights immediately before the commencement of the Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 1995 and had been such bhumidhar for a period of ten years or more, shall become a bhumidhar with transferable rights on such commencement.
(2) Every person who is a bhumidhar with non-transferable rights on the commencement referred to in sub-section (1) or becomes a bhumidhar with non-transferable rights after such commencement, shall become bhumidhar with transferable rights on the expiry of period of ten years from his becoming a bhumidhar with non-transferable rights.
(3) Notwithstanding anything contained in any other provision of this Act, if a person, after becoming a bhumidhar with transferable rights under sub-section (1) or sub-section (2), transfers the land by way of sale, he shall become ineligible for a lease of any land vested in Gaon Sabha or the State Government or of surplus land as defined in the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960."
10. Section 157-A provides for certain restrictions on transfer of land by members of scheduled castes. It provides that a bhumidhar or Asami belonging to a scheduled caste shall have no right to transfer any land by sale, gift, mortgage or lease to a person who does not belong to such a caste except with the previous approval of the Collector. The restrictions imposed on the bhumidhar or Asami belonging to a scheduled caste shall be without prejudice to the restrictions contained in Sections 153 to 157 of the Act.
11. Section 157-AA was inserted in terms of the U.P. Zamindari Abolition and Land Reforms (Amendment) Act, 1997 (U.P. Act No.9 of 1997) with effect from May 23, 1997 providing for restrictions on transfer by members of scheduled castes becoming bhumidhar under Section 131-B.
12. Section 157-AA as inserted by the aforementioned Amending Act, is being reproduced below:-
"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 Sections 153 to 157, no person belonging to 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 referred to in clause (a) of sub-section (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 sub-section 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 and 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 clauses (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 sub-section (1) belonging to a Scheduled Caste is available, the land may be transferred to a person belonging to a Scheduled Tribe in the order of preference given in sub-sections (1) and (2).
(4) No transfer under this sections shall be made except with the previous approval of the Assistant Collector concerned.
(5) A transferee of land under sub-section (1) shall have no right to transfer the land by way of sale, gift, mortgage or lease before the expiry of a period of ten years from the date of transfer in his favour."
13. Section 157-AA provides that no person belonging to 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 the same shall be in the order of preference as contained sub-section (1) of the said section.
14. The provisions contained under Section 157-A and Section 157-AA both provide for restrictions on transfer of land by members of scheduled castes, but with a clear distinction. In terms of Section 157-A no bhumidhar or Asami belonging to a scheduled caste can transfer the land to a person not belonging to a scheduled caste except with the previous approval of the Collector whereas under Section 157-AA the restriction is to the effect that a person belonging to a scheduled caste having become a bhumidhar with transferable rights under Section 131-B shall have no right to transfer the land by sale or otherwise to any person other than a person belonging to a scheduled caste. The transfer under Section 157-AA would be permissible only to persons belonging to scheduled castes in the order of preference as prescribed under sub-section (1). The restriction on a scheduled caste with regard to the transfer of land in favour of a person who does not belong to a scheduled caste under Section 157-AA is thus absolute and such transfer is not permissible in any contingency. The restriction herein is more stringent since the land in question is a lease land and grant of agricultural lease contemplated under the ZA & LR Act is for specified object and purpose.
15. The language of sub-section (1) of Section 157-AA is such that even in case of a member of a scheduled caste acquiring transferable rights of a bhumidhar under Section 131-B who is desirous to transfer such land to another person belonging to the scheduled caste by way of sale, gift, mortgage or lease the right to transfer is not absolute and the transfer is permissible only in accordance with the preferences specified therein.
16. Sub-section (4) provides for a restraint whereunder no transfer under Section 157-AA is permissible without the previous approval of the Assistant Collector concerned. The language of sub-section (4) is expressed in wide terms and it covers all transfers which are contemplated under Section 157-AA, including a transfer which is to be made by a scheduled caste in favour of a scheduled caste also.
17. The restrictions provided for under Section 157-AA were made subject to a further condition with the insertion of sub-section (5), in Section 157-AA of the ZA & LR Act in terms of the Uttar Pradesh Zamindari Abolition and Land Reforms (Amendment) Act, 2002 (U.P. Act No.11 of 2002) with effect from June 21, 2002. Sub-section (5), referred to above, is being extracted below:-
"(5) A transferee of land under sub-section (1) shall have no right to transfer the land by way of sale, gift, mortgage or lease before the expiry of a period of ten years from the date of transfer in his favour."
18. This Court may take notice of the fact that the ZA & LR Act was enacted to provide for abolition of the zamindari system which involved intermediaries between the tiller of the soil and the State and for acquisition of their rights, title and interests and to reform the law relating to land tenure. The enforcement of the ZA & LR Act was with a view to simplify land tenure and bring about other consequent reforms to fulfill the needs of an egalitarian society. The abolition of the system of intermediaries between the State and the cultivators and the simplification of land tenure was aimed at paving way for distribution of land to the weaker sections of society according to the mandate of the Constitution of India3.
19. In a primarily agrarian economy where land continues to be the pivotal to both income and employment around which socio-economic privileges and deprivations revolve land reforms are seen as one of the principal instruments for creation of an egalitarian rural society in tune with the socialistic spirit, as provided in the Preamble and under Part IV of the Constitution. It has also been included in the Ninth Schedule so as to ensure speedy and unhindered implementation of various legislative measures.
20. The restrictions provided for the transfer of land by scheduled castes under Section 157-AA have been introduced in order to address the difficulties faced by members of scheduled castes and to protect their rights with regard to the use and control of land through land reforms by taking appropriate legislative measures.
21. The restrictions provided under Section 157-AA are founded on a reasonable basis inasmuch as these restrictions are in respect of a person belonging to a scheduled caste who has become a bhumidhar with transferable rights in terms of the provisions contained under Section 131-B. It is for the purpose of protecting the rights of members of the scheduled castes that the transfer under Section 157-AA is permissible only to a person belonging to a scheduled caste and that too in the order of preference as prescribed under sub-section (1) thereof whereunder the said transfer is to be in an order of preference being made firstly to a landless agricultural labourer, thereafter to a marginal farmer, a small farmer and only subsequent thereto to others. The aforementioned preferential order of transfer is further subject to the conditions under sub-section (2).
22. Sub-section (4) which is couched in a mandatory form provides an injunction against any transfer without the previous approval of the Assistant Collector. The language of sub-section (4) is in wide terms and it encompasses all transfers under Section 157-AA including a transfer by a member of scheduled caste in favour of another member of scheduled caste also.
23. The issue as to whether a transfer made by a leaseholder who belongs to a scheduled caste in favour of a person who also belongs to a scheduled caste would require the permission of the Assistant Collector fell for consideration in the case of Man Singh Vs. Commissioner, Bareilly Mandal & Ors.4 and upon considering the provisions contained under Section 157-AA it was stated as follows:-
"5. ...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. The restriction is more stringent in this sub-section since the land is lease land and grant of agricultural lease is contemplated under the Act for the specified object and purpose. Much emphasis has been laid down by learned Counsel for the petitioner that Sub-section (1) of Section 157-AA will not apply when transfer is in favour of Scheduled Caste. Sub-section (4) of Section 157-AA 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. Sub-section (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 Sub-section (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 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 Sub-section (1). 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 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. If no permission is required for a land to be transferred by Scheduled Caste to another Scheduled Caste, then there will be no stage of inquiry whether the transfer is in accordance with the preference given in Sub-section (1).
6. In view of the foregoing discussions, I am 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 any such permission and the courts below have rightly taken the view that transfer is void and consequences under Section 167 of the Act shall follow..."
24. The purpose and object of the provision being to protect and promote the rights of the scheduled castes with regard to the control and use of land by bringing about land reforms through legislative measures, the provisions under Section 157-AA have to be read so as to subserve the intent and purpose of the enactment.
25. It is beyond question the duty of courts, in construing statutes to give effect to the intent of the law making power and to seek for that intent in every way. The object and interpretation of construction of statutes is to ascertain the meaning of the legislature and to ensure that the provisions are interpreted so as to subserve that intent. There is a general presumption that an enactment has to be given a purposive construction with a construction that best gives effect to the purpose of the enactment.
26. Reference may be had to the judgment in R (on the application of Quintavalle) Vs. Secretary of State for Health5, for the proposition that in construing an enactment effort should be made to give effect to the legislative purpose. The observations made in the judgment are as follows:-
''8. The basic task of the Court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. ... Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The Court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.''
27. Similar observations were made in Stock Vs. Frank Jones (Tipton) Ltd.6, wherein it was held as follows:-
''Words and phrases of the English language have an extraordinary range of meaning. This has been a rich resource in English poetry (which makes fruitful use of the resonances, overtones and ambiguities), but it has a concomitant disadvantage in English law (which seeks unambiguous precision, with the aim that every citizen shall know, as exactly as possible, where he stands under the law). The first way says Lord Blackburn, of eliminating legally irrelevant meanings is to look to the statutory objective. This is the well-known canon of construction . . . which goes by the name of ''the rule in Heydon's Case'' (1584) 3 Co. Rep. 7b. (Nowadays we speak of the ''purposive'' or ''functional'' construction of a statute.)''
28. The Court's function, in view of the foregoing discussion, would thus be to construe the words used in an enactment, so far as possible, in a way which best gives effect to the purpose of the enactment.
29. The ZA & LR Act having been enacted with the objective of bringing about reforms in the law relating to land tenure, and the provisions contained under Section 157-AA having been inserted with a view to ensure protection of the rights of the scheduled castes in consonance with creation of an egalitarian rural society which would be in tune with the socialistic spirit of the Constitution the provisions contained therein have to be interpreted in a beneficent way so as to subserve the object of the enactment rather than to negate it.
30. In construing a remedial statute like the one above, courts are required to give the terms of the statute the widest amplitude which its language would permit.
31. The principle of applying a liberal construction to a remedial legislation has been emphasised in the Construction of Statues by Crawford7 in the following terms:-
"...Remedial statutes, that is, those which supply defects, and abridge superfluities, in the former law, should be given a liberal construction, in order to effectuate the purposes of the legislature, or to advance the remedy intended, or to accomplish the object sought, and all matters fairly within the scope of such a statute be included, even though outside the letter, if within its spirit or reason."
32. To a similar effect is the observation made by Blackstone in Construction and Interpretation of Laws8, which is as under:-
"It may also be stated generally that the courts are more disposed to relax the severity of this rule (which is really a rule of strict construction) in the case of statutes obviously remedial in their nature or designed to effect a beneficent purpose."
33. In the context of beneficial construction as a principle of interpretation, it has been observed in Maxwell on The Interpretation of Statutes9 as follows:-
"...where they are faced with a choice between a wide meaning which caries out what appears to have been the object of the legislature more fully, and a narrow meaning which carries it out less fully or not at all, they will often choose the former. Beneficial construction is a tendency, rather than a rule."
34. The principle of applying a liberal construction to a beneficial legislation having a social welfare purpose was reiterated in the case of Allahabad Bank & Anr. Vs. All India Allahabad Bank Retired Employees Association10, and it was observed as follows:-
"16. ...Remedial statutes, in contradistinction to penal statutes, are known as welfare, beneficent or social justice oriented legislations. Such welfare statutes always receive a liberal construction. They are required to be so construed so as to secure the relief contemplated by the statute. It is well settled and needs no restatement at our hands that labour and welfare legislation have to be broadly and liberally construed having due regard to the Directive Principles of State Policy. The Act with which we are concerned for the present is undoubtedly one such welfare oriented legislation meant to confer certain benefits upon the employees working in various establishments in the country."
35. Reference may also be had to the case of Bharat Singh Vs. Management of New Delhi Tuberculosis Centre, New Delhi & Ors.11, where purposive interpretation safeguarding the rights of have-nots was preferred to a literal construction in interpreting a welfare legislation, and it was held as follows:-
"11. ...the court has to evolve the concept of purposive interpretation which has found acceptance whenever a progressive social beneficial legislation is under review. We share the view that where the words of a statute are plain and unambiguous effect must be given to them. Plain words have to be accepted as such but where the intention of the legislature is not clear from the words or where two constructions are possible, it is the court's duty to discern the intention in the context of the background in which a particular Section is enacted. Once such an intention is ascertained the courts have necessarily to give the statute a purposeful or a functional interpretation. Now, it is trite to say that acts aimed at social amelioration giving benefits for the have-nots should receive liberal construction. It is always the duty of the court to give such a construction to a statute as would promote the purpose or object of the Act. A construction that promotes the purpose of the legislation should be preferred to a literal construction. A construction which would defeat the rights of the have-nots and the underdog and which would lead to injustice should always be avoided..."
36. In the case at hand, the petitioner being a transferee of land having received the same by way of a sale from persons who had become bhumidhars with transferable rights under Section 131-B the restrictions contained under Section 157-AA would be fully attracted as also the provision contained in terms of sub-section (5) thereof whereunder no further transfer is permissible by a transferee of a land under sub-section (1) before the expiry of a period of ten years from the date of transfer in his favour.
37. Contention of the learned counsel for the petitioner that the land having been purchased by sale-deeds from the original tenure holders there was no requirement for complying with the provisions under Section 157-AA, is thus wholly without basis and cannot be accepted.
38. The rationale behind requiring the previous approval of the Assistant Collector for any transfer under Section 157-AA is not difficult to decipher since as per the terms of the scheme of the provision, even a transfer by a bhumidhar belonging to a scheduled caste to a person also belonging to a scheduled caste is to be in accord with the order of preference under sub-section (1).
39. It therefore follows that a member of a scheduled caste who has obtained the status of a bhumidhar with transferable rights under Section 131-B also does not have a free choice to transfer the land to any member of the scheduled caste. The transfer which is permissible is to be as per the preferences prescribed. The order of preference under sub-section (1) and sub-section (2) are clearly to subserve the purpose of the legislative enactment which is for furtherance of the objective of land reforms and to protect the vulnerable section of the society from injustice and exploitation.
40. The prior approval of the Assistant Collector as required under sub-section (4) is thus contemplated so as to ensure that the permission which is sought is in accord with the scheme of the provision under the Section 157-AA and as per the order of preference provided under sub-section (1).
41. The application of the petitioner seeking permission for transfer of the land parcels having been turned down for the reason that the permission sought was hit by sub-section (5) which creates a bar on a transferee of land under sub-section (1) to further transfer the land by way of sale or otherwise before the expiry of a period of ten years from the date of transfer in his favour, the orders impugned cannot be faulted with and the challenge sought to be raised in the present petition is legally unsustainable.
42. Counsel for the petitioner has not been able to dispute the aforementioned legal position with regard to the restrictions contained under Section 157-AA and in particular the restriction with regard to a transfer by a transferee within a period of ten years from the date of transfer in his favour.
43. No other ground was urged.
44. The writ petition thus lacks merit and is accordingly dismissed.
Order Date :- 9.1.2020 Shahroz/Pratima (Dr. Y.K. Srivastava,J.)