2025:UHC:3361 HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition Misc. Single No. 600 of 2025 01 MAY, 2025 Rajkumar --Petitioner Versus State of Uttarakhand and others --Respondents ------------------------------------------------------------------- Presence:- Mr. T.A. Khan, learned Senior Counsel, assisted by Mohd Shafy Advocate for the petitioners. Mr. Yogesh Chandra Tiwari, Standing Counsel for the State of Uttarakhand/ respondent nos. 1 to 5. ------------------------------------------------------------------- JUDGMENT 1. In this petition, filed under Article 227 of the Constitution, petitioner has challenged the judgments and orders passed by District Magistrate, Udham Singh Nagar; Commissioner, Kumaon Division and Board of Revenue. The impugned judgments are on record as Annexure nos. 1, 2 & 3, respectively. 2. By the judgment dated 18.01.2016, passed by District Magistrate, Udham Singh Nagar, 0.1290 hectare land, comprised in Khasra no. 134, situate in Village Bahadurpur, Tehsil Jaspur, District Udham Singh Nagar, was vested in State Government, by invoking Section 167 of U.P Zamindari Abolition and Land Reforms Act, 1950 (in short “UPAZ&LR Act”), for transferring the said land in violation of provision contained in Section 157-A of the said Act. 3. Sections 157-A, 166 & 167(1) of UPAZ&LR Act, which are relevant in the present case, are reproduced below:- 1 2025:UHC:3361 “157A. Restrictions on transfer of land by members of Scheduled Castes [Substituted by U.P. Act No. 20 of 1982 (w.e.f. 03.06.1981).] (1) Without prejudice to the restrictions contained in Sections 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 transfer 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.] 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.” 4. Pursuant to the notice issued to him by District Magistrate, Udham Singh Nagar, petitioner submitted his reply in which he admitted that he had transferred the land in question to a person not belonging to Scheduled Caste, however, he offered an explanation that at the time of transfer, he was not aware that the transferee does not belong to Scheduled Caste. He further contended that the sale deed dated 13.07.2011, made by him in favour of Smt. Nirdesh Kumari, was cancelled vide judgment dated 22.11.2014 by Civil Judge (J.D.), Kashipur, District Udham Singh Nagar in Civil Suit No. 222 of 2014. 5. The transferee (Smt. Nirdesh Kumari) also filed reply to the notice issued by District Magistrate in 2 2025:UHC:3361 which she stated that she was not aware while purchasing the land that petitioner belongs to Scheduled Caste and the sale deed, executed in her favour by the petitioner, was cancelled by learned Civil Judge (J.D), Kashipur vide judgment dated 22.11.2014. Thus, the transferee also supported the case of petitioner. 6. Learned District Magistrate disbelieved the version of petitioner and transferee, that they were not aware about the ‘caste status’ of each other, on the ground that both of them are residing in the same area. The Collector further held that the sale deed executed by petitioner was cancelled by filing a collusive suit for cancellation; since petitioner, who belong to Scheduled Caste community, sold the land without approval of the Collector, in violation of Section 157-A of UPAZ&LR Act, therefore, the land is liable to be vested in the State Government. He, accordingly, decided the proceedings against the petitioner and invoked the power under Section 167(1)(a) of UPAZ&LR Act. 7. Petitioner filed appeal before Commissioner, which was dismissed vide judgment dated 22.02.2017. Learned Commissioner held that the decree of cancellation of sale deed, passed by Civil Court in favour of petitioner, do not improve his case, as by virtue of Section 167(1)(a) of the UPAZ&LR Act, the land in question is vested in the State Government from the date of transfer i.e. 13.07.2011. 3 2025:UHC:3361 8. Revisional Court/Board of Revenue dismissed the revision, filed by the petitioner, by holding that since the transfer was made in violation of the provision of the aforesaid Act, therefore, such transfer is void ab initio and the land, which was transferred, came to be vested in the State Government from the date of the transfer, i.e. 13.07.2011. 9. Petitioner has challenged the impugned judgments and orders on the ground that in view of cancellation of sale deed by a Civil Court, the provision contained in Section 167(1)(a) could not have been invoked against the petitioner. 10. Learned State Counsel, however, submits that the decree of cancellation of sale deed was obtained by petitioner in a collusive suit, which was filed by petitioner after initiation of proceedings under UPAZ&LR Act. He refers to the plaint of the said suit, in which petitioner has pleaded that he had agreed to sell the land in question for ₹1,75,000/- and the agreement to sell was to be executed on 13.07.2011; the transferee paid him ₹1,00,000/- and assured him that the remaining amount would be paid, within twelve months; the transferee did not pay the remaining amount then he came to know that in place of agreement to sell, a sale deed was executed on 13.07.2011. 11. Learned State Counsel submits that before the Civil Court, petitioner took the stand that since the entire sale consideration is not paid to him, therefore, 4 2025:UHC:3361 the sale deed is liable to be cancelled. He further submits that based on such pleadings, suit for cancellation of sale deed could not be decreed and in the circumstances as mentioned in the suit, petitioner could have filed a money recovery suit. He submits that the said suit was not decided on merits, but it was decreed, based on compromise, as defendant (transferee) stated that she has no objection against cancellation of sale deed. Learned State Counsel further submits that the decree of cancellation of sale deed, which was obtained by petitioner in 2014, does not help him in view of provision contained in Section 167(1)(a) of the Act, which provides that subject matter of transfer shall be deemed to have vested in the State Government w.e.f. the date of transfer. He submits that since transfer was made by petitioner on 13.07.2011, in violation of Statutory provisions, therefore, as a consequences of such illegal transfer, the land, which was subject matter of transfer, came to be vested in the State Government from the date of such transfer. 12. This Court finds substance in the submission made by learned State Counsel. In view of provision contained in Section 167(1)(a) of the UPAZ&LR Act, the land, which was subject matter of transfer, shall be deemed to have vested in the State Government from the date of transfer i.e. 13.07.2011; therefore, the subsequent decree of cancellation of sale deed, passed by Civil Court, will not improve the case of the petitioner. District Magistrate rightly disbelieved the version of the petitioner that he was not aware about 5 2025:UHC:3361 the caste status of the transferee, as both of them are residing in the same area. From perusal of the decree passed by Civil Court on petitioner’s civil suit, it is revealed that the case was decided, based on compromise, as the transferee conceded that she has no objection if the sale deed is cancelled. The ground taken for seeking decree of cancellation of sale deed also do not appear to be germane, as petitioner could have filed a money recovery suit for recovering unpaid sale consideration. Thus, this Court does not find any reason to interfere with the impugned judgments and orders passed by District Magistrate, Commissioner and Board of Revenue. 13. Learned counsel for the petitioner then relied upon an order passed by Hon’ble Allahabad High Court in the case of Chandra Pal vs State of U.P. & others, reported in 2014 SCC Online All 4079 for contending that ex post facto approval of the Competent Authority can also be obtained in respect of a transfer, which has already taken place. He submits that petitioner may be permitted to apply for such ex post facto approval. 14. Learned State Counsel submits that he has no objection, if petitioner is permitted to make application for such approval. 15. Accordingly, the writ petition is disposed of with liberty to petitioner to make application for ex post facto approval, to transfer the land to a person not belonging to Scheduled caste, to the Competent Authority. If he makes such application within three 6 2025:UHC:3361 weeks from today, the Competent Authority shall consider petitioner’s request and take decision thereupon, as per law, within three months from the date of receipt of such application along with certified copy of this order. ________________________ MANOJ KUMAR TIWARI, J. 01.05.2025 Aswal 7 NITI RAJ SINGH ASWAL Digitally signed by NITI RAJ SINGH ASWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802a3a08b08d1369512ea30f3, postalCode=263001, st=UTTARAKHAND, serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22DACF4F4610C1FE58A58531726 FBB0, cn=NITI RAJ SINGH ASWAL Date: 2025.05.13 18:45:11 -07'00'