Holding

The exchange deed is void as it contravenes Section 157‑B’s absolute bar on transfers by Scheduled Tribe members to non‑tribe persons and lacks the prior permission required under Section 161, thereby vesting the land in the State.

Summary

The respondents Akhlaq Hussain and Saqir Hussain exchanged a small parcel of land for a larger agricultural parcel owned by Mangal Singh, a member of a Scheduled Tribe, through a registered deed. The Assistant Collector declared the exchange void under Sections 157‑B and 161 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, and ordered the land to vest in the State; the High Court later set aside that order, holding that the statutory bar did not apply. On appeal, the Supreme Court held that Section 157‑B imposes an absolute prohibition on any transfer by a Scheduled Tribe member to a non‑tribe person, including exchange, and that Section 161 requires prior permission from the Assistant Collector, which was not obtained. The Court also found the land to be agricultural under Section 3(14) as no declaration under Sections 143‑144 had been made, and rejected the limitation defence. Consequently, the exchange deed was declared void and the land vested in the State, and the High Court judgment was set aside.

Issues considered

Whether the exchange deed between the respondents and a Scheduled Tribe member violates Section 157‑B of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
Whether Section 161 of the Act mandates prior permission from the Assistant Collector for any land exchange and renders the exchange void in its absence.
Whether the land involved is ‘agricultural land’ within the meaning of Section 3(14) and thus subject to the Act.
Whether the limitation period under Section 167 (Appendix‑III) bars the Assistant Collector’s order concerning a void transfer.
Whether the payment of stamp duty and registration under the Indian Stamp Act can override the statutory prohibitions of the 1950 Act.

Legislation cited

Indian Stamp Acts. Article 31 of Schedule 1‑B
Transfer of Property Act
U.P. Zamindari Abolition and Land Reforms Act, 1950s. 143, s. 144, s. 153, s. 154, s. 155, s. 156, s. 157, s. 157-A, s. 157-B, s. 161, s. 166, s. 167, s. 168, s. 3(14)

Subjects

Land reformExchange of landScheduled TribeSection 157‑BSection 161Agricultural landVoid transferLimitation periodU.P. Zamindari Abolition and Land Reforms ActStatutory interpretationEquity

Judgment

[2020] 2 S.C.R. 1001 1001

ADDITIONAL COMMISSIONER REVENUE AND OTHERS A
v.
AKHALAQ HUSSAIN AND ANOTHER
(Civil Appeal No. 7346 of 2010)
MARCH 03, 2020 B
[R. BANUMATHI, S. ABDUL NAZEER AND
A. S. BOPANNA, JJ.]
U.P. Zamindari Abolition and Land Reforms Act, 1950 –
ss.157-B, 161, 166, 167 – Respondents entered into an exchange
C
with a member of Scheduled Tribe by way of registered exchange
deed – Respondents gave 4½ Muthi of land in return for 12 Nali of
agricultural land – Assistant Collector held that the exchange
violates s.161(1) and the exchange deed being in violation of
provisions of the 1950 Act is void – Respondents filed appeal –
Dismissed – Revision petition – Dismissed – Writ petition filed by D
the respondents – Allowed – Held: s.161 pertains to exchange of
land, as per which a bhumidhar may exchange land with another
bhumidhar or with any Gaon Sabha or local authority, with the prior
permission of an Assistant Collector – Insofar as the land belonging
to a member of Scheduled Tribe, exchange is not permissible – Under
E
s.157-B, no bhumidhar or asami belonging to a Scheduled Tribe,
shall have the right to transfer by way of “sale, gift, mortgage or
lease or otherwise any land to a person not belonging to a Scheduled
Tribe” – Language used in s.157-B “or otherwise” emphasizes that
the land belonging to a Scheduled Tribe cannot be transferred in
any manner whatsoever – Further, in the instant case admittedly, F
even no prior permission was sought from the Assistant Collector –
Also, respondents did not explain as to why a member of Scheduled
Tribe wanted to exchange his large extent of land i.e.12 Nali (2400
sq. mtrs.) with a much smaller piece of land i.e. 4½ Muthi (56.25 sq.
mtrs.) – This raises doubt about the genuineness of exchange deed
G
strengthened by the fact that respondents’ names were mutated in
the land exchanged while that of the member of Scheduled Tribe
was not – Since the exchange deed violated s.157-B, the transfer is
void u/s.166 – No justification to consider respondents’ request on
the basis they are running Hotel on the land – No ground for
H
1001
1002 SUPREME COURT REPORTS [2020] 2 S.C.R.

A considering questions of equity – When there is a clear statutory
provision barring the transfer, it was not open to the High Court to
substitute its view in place of that provision – Such interpretation
would defeat the benevolent object of the provisions of the 1950
Act and the constitutional scheme providing for social and economic
empowerment of the Scheduled Tribes – Judgment of High Court
B
set aside – Appellants at liberty to proceed in accordance with law
– Interpretation of Statutes – Equity – Indian Stamp Act – Article 31
of Schedule 1-B.
U.P. Zamindari Abolition and Land Reforms Act, 1950 – s.161
– Exchange of land – Requirement of prior permission u/s.161 –
C Discussed.
U.P. Zamindari Abolition and Land Reforms Act, 1950 –
ss.3(14), 143, 144 – Respondents entered into a land exchange
with a member of Scheduled Tribe and gave 4½ Muthi of land in
return for 12 Nali of agricultural land – Exchange deed was held
D to be void being in violation of provisions of the 1950 Act –
Respondents inter alia pleaded that the land in question is not an
“agricultural land” and does not fall within the definition of “land”
u/s.3(14) thus, provisions of Chapter VIII of the Act are not
applicable – Held: For changing the nature of land from
E “agricultural” to “abadi”, declaration as stipulated in ss.143 &
144 is required – Respondents did not produce any such document
which shows that such declaration was made much less registered –
In absence thereof, the land is deemed to be an “agricultural land”
as per s.3(14) and the provisions of the 1950 Act are applicable to
the land in question.
F
U.P. Zamindari Abolition and Land Reforms Act, 1950 –
ss.157-A, 157-B – Restrictions on transfer of land by members of
Scheduled Castes vis-a-vis Scheduled Tribe – Discussed.
Allowing the appeal, the Court
G HELD:1.1 Mangal Singh is a member of Scheduled Tribe
and this factum has not been disclosed in the exchange deed. As
per Section 157-B of the U.P. Zamindari Abolition and Land
Reforms Act, 1950 (the Act), a bhumidhar or asami belonging to
Scheduled Tribe cannot transfer his land to a person not belonging
to Scheduled Tribe. As per Section 166 of the Act, any transfer
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ADDITIONAL COMMISSIONER REVENUE AND OTHERS v. 1003
AKHALAQ HUSSAIN AND ANOTHER

made in contravention of the provisions of the Act shall be void. A
Since the exchange deed has been executed in violation of the
provisions of Section 157-B of the Act, the transfer is void and is
liable to be set aside and the land is liable to be vested in the
State Government. For changing the nature of land from
“agricultural” to “abadi”, declaration as stipulated in Sections
B
143 and 144 is required. The provisions under Section 143 of the
Act are initiated suo motu or on an application moved by a
bhumidhar with transferable rights and an enquiry is required to
be conducted by the Assistant Collector as prescribed under the
Act.[1010-D; 1010-F; 1011 E-G]
In the present case, the respondents have not produced C
any such document which shows that declaration required under
Section 143 of the Act has been made much less registered. In
the absence of such declaration, the land is deemed to be an
“agricultural land” as per the provisions of Section 3(14) of the
Act. In the absence of such declaration, the land cannot be said D
to be “abadi land”. Since the land is an “agricultural land”, the
provisions of U.P. ZA & LR Act are applicable to the land in
question. [Paras 12, 15, 17 and 18][1013 E-G; 1014B-C]
1.2 Section 161 of the Act pertains to exchange of land. As
per Section 161, a bhumidhar may exchange land with another E
bhumidhar or with any Gaon Sabha or local authority, with the
prior permission of an Assistant Collector. Insofar as the land
belonging to a member of Scheduled Tribe, exchange is not
permissible. Under Section 157-B, no bhumidhar or asami
belonging to a Scheduled Tribe, shall have the right to transfer
by way of “sale, gift, mortgage or lease or otherwise any land to a F
person not belonging to a Scheduled Tribe”.The language used in
Section 157-B of the Act “or otherwise” emphasizes that the land
belonging to a Scheduled Tribe cannot be transferred in any
manner whatsoever. In Section 157-A of the Act which deals with
restrictions on transfer of land by members of Scheduled Castes, G
the language used is “by way of sale, gift, mortgage or lease to a
person not belonging to a Scheduled Caste”. Absence of word
“or otherwise” in Section 157-A of the Act shows that while
exchange may be permissible of a land belonging to members of

H
1004 SUPREME COURT REPORTS [2020] 2 S.C.R.

A Scheduled Caste to a person belonging to Scheduled Caste, such
an exchange is prohibited under Section 157-B of the Act –
Restriction on transfer of land of a member of a Scheduled Tribe.
Use of the word “shall” in the proviso to Section 161 of the Act
clearly indicates that for a valid exchange, it is mandatory to obtain
permission of the Assistant Collector. In the instant case,
B
admittedly, no prior permission was sought from the Assistant
Collector as mandated. In the absence of fulfilling of pre-requisite
condition as laid down in Section 161 of the Act, the exchange
has to be necessarily held to be void. [Paras 19, 20][1014 B-C;
1014 F-H; 1015 A-D]
C 1.3 There is no merit in the contention that for exchange of
land prior permission under Section 161 of the Act is not required.
The pre-requisite condition for grant of permission is the
calculation of the rental value and if the difference between the
rental value of land given in exchange and of land received in
D exchange is more than 10%, then the Assistant Collector shall
refuse the permission. The pre-requisite condition of calculation
of the rental value clearly suggests that the permission of the
Assistant Collector is a pre-requisite condition for a valid
exchange. [Paras 22, 23][1015 F-G; 1016 B-D]
E 1.4 The respondents have not explained as to why Mangal
Singh (a member of Scheduled Tribe) wanted to exchange his
large extent of land i.e. 12 Nali (2400 sq. mtrs.) with a much
smaller piece of land i.e. 4½ Muthi (56.25 sq. mtrs.). This aspect
raises doubt about the genuineness of the exchange deed. This
is further strengthened by the fact that the names of the
F respondents have been mutated in the land of Mangal Singh in
Bandobast Khatuni Khata No.43; whereas the name of Mangal
Singh has not been mutated in village Khata No.36, Bandobast
Khatuni Khata No.91. These circumstances clearly indicate that
the exchange deed relied upon by the respondents is not a valid
G exchange and has been executed in violation of the provisions of
the U.P. ZA & LR Act. [Para 24][1016 D-G]
1.5 U.P. ZA & LR Act is a beneficial legislation which has
been enacted to protect the interest of the exploited rural masses.
There is no merit in the contention that the order passed by the
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ADDITIONAL COMMISSIONER REVENUE AND OTHERS v. 1005
AKHALAQ HUSSAIN AND ANOTHER

Pargana Magistrate dated 19.07.2000 is barred by limitation. The A
exchange deed dated 16.03.1994 being in contravention to the
provisions of the U.P. ZA & LR Act is void. The consequences
have to follow as per Section 167 of the Act. In case, if the transfer
is void under the provisions of the Act, there is no justification to
consider the request of the respondents on the ground that they
B
are running the Hotel by availing loan from the financial
institutions. When there is a clear statutory provision barring
the transfer, it was not open to the High Court to substitute its
view in the place of that provision. Any such interpretation would
defeat the benevolent object of the provisions of the U.P. ZA &
LR Act and also the constitutional scheme providing for the social C
and economic empowerment of the Scheduled Tribes. The order
of the High Court is contrary to the express provisions of U.P.
ZA & LR Act and the impugned judgment cannot be sustained.
[Paras 25, 28-30][1016-G; 1018-G; 1019-B; 1019 C-F]
Chandrika Singh and others v. Raja Vishwanath Pratap D
Singh and another (1992) 3 SCC 90 : [1992] 2 SCR
640; Samatha v. State of A.P. and others (1997) 8 SCC
191 : [1997] 2 Suppl. SCR 305 – relied on.
Life Insurance Corporation of India v. Escorts Ltd. and
others (1986) 1 SCC 264 : [1985] 3 Suppl. SCR 909 – E
referred to.
Case Law Reference
[1992] 2 SCR 640 relied on Para 16
[1985] 3 Suppl. SCR 909 referred to Para 21 F
[1997] 2 Suppl. SCR 305 relied on Para 25
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7346
of 2010.
From the Judgment and Order dated 18.09.2008 of the High Court
of Uttarakhand at Nainital in Writ Petition No. 670 of 2002 (M/S). G

Jatinder Kumar Sethi, Dy. A.G., Ashutosh Kumar Sharma, Jatinder
Kumar Bhatia, Advs. for the Appellants.
Manohar Pratap, Sanpreet Singh Ajmani, Varun Mishra, Ms. Rabia
Wani, Ms. Manju Jetley, Advs. for the Respondents. H
1006 SUPREME COURT REPORTS [2020] 2 S.C.R.

A The Judgment of the Court was delivered by
R. BANUMATHI, J.
1. This appeal arises out of the impugned judgment dated
18.09.2008 passed by the High Court of Uttarakhand at Nainital in Writ
Petition No.670 of 2002 in and by which the High Court has set aside
B the orders of the Additional Commissioner (Revenue) dated 02.07.2002
and Additional Judicial Commissioner dated 30.06.2001 and also earlier
order dated 19.07.2000 passed by the Assistant Collector/Pargana
Magistrate.
2. Brief facts which led to filing of this appeal are as under:-
C
Respondents Akhalaq Hussain and Saqir Hussain entered into an
exchange with one Mangal Singh (a member of Scheduled Tribe) by
way of a registered exchange deed dated 16.03.1994 whereby the
respondents gave 4 ½ Muthi of land, one Muthi is equal to 12.5 sq.mtrs.
totalling 56.25 sq. mtrs., in village Khata No.36, Bandobast Khatuni Khata
D No.91 situated in village Vim Patti in District Pithoragarh in return for 12
Nali, one Nali is equal to 200 sq.mtrs. totalling 2400 sq.mtrs. of agricultural
land in Bandobast Khatuni Khata No.43 situated in village Mall
Ghorpatta, Munsiari, District Pithoragarh. Thereafter, mutation application
was moved before the Tehsildar who vide order dated 25.04.1994 allowed
E the mutation on the basis of exchange under Section 161 of U.P. Zamindari
Abolition and Land Reforms Act, 1950 (for short “U.P. ZA & LR Act”).
The respondents claim that they have constructed a hotel on the land
obtained in exchange and the said hotel is being run in the name and
style of “Zara Resort”.

F 3. On 19.07.2000, the Pargana Magistrate/Assistant Collector
issued an order under Section 167 of the U.P. ZA & LR Act stating that
the parties to the aforementioned exchange have violated the provisions
of sub-section (1) of Section 161 of U.P. ZA & LR Act while getting the
registration done. It was held that according to the provisions, a
bhumidhar can only exchange his land with another bhumidhar after
G he obtains prior permission from the Assistant Collector. But in the instant
case, no prior permission has been obtained from the Assistant Collector.
Exchange deed has been made in contravention of the provisions of the
U.P. ZA & LR Act and hence void. According to the provisions of sub-
section 1 (a) of Section 167 of U.P. ZA & LR Act, the land admeasuring
12 Nali under Khata No.43 stands vested in the Government of Uttar
H
ADDITIONAL COMMISSIONER REVENUE AND OTHERS v. 1007
AKHALAQ HUSSAIN AND ANOTHER [R. BANUMATHI, J.]

Pradesh from the date of its transfer. The respondents were ordered to A
remove all their movable/immovable properties existing on the land within
thirty days.
4. On 04.12.2000, Tehsildar, Pithoragarh inspected the revenue
record and found that 4 ½ Muthi land alleged to have been given to
Mangal Singh as per the exchange deed was still owned by the B
respondents and there was no noting in the name of Mangal Singh in
village Khata No.36, Bandobast Khata No.91.
5. The respondents appealed against the order dated 19.07.2000
contending that the exchange has been performed by the mutual consent
of both the parties as per rules and the registration has also been lawfully C
done on 16.03.1994. The respondents claimed that the provisions of
Sections 161 and 167 of U.P. ZA & LR Act do not apply, but the provisions
of the Transfer of Property Act would apply and therefore, the exchange
cannot be declared as illegal transfer under the provisions of U.P. ZA &
LR Act. Vide order dated 30.06.2001, the Additional Commissioner (J)
Kumaon Zone, Nainital held that the lands which have been exchanged D
by both the parties is shown under the category of “transferrable lands”
which fall under the definition of “agricultural lands” under Section 3(14)
of U.P. ZA & LR Act and the parties have not obtained prior permission.
Therefore, the exchange cannot be held to be legal. It was held that
Mangal Singh is a person belonging to Scheduled Tribe whereas, the E
respondents are non-Scheduled Tribes. The transfer of lands by persons
belonging to Scheduled Tribe is prohibited under the provisions of Section
157-B of U.P. ZA & LR Act. According to Section 157-B, no bhumidhar
or asami, subject to restrictions as mentioned in Sections 153 to 157 has
any right to transfer by way of sale, gift, mortgage or lease or otherwise
any land to any person not belonging to Scheduled Tribe. The appeal F
was thus dismissed.
6. The respondents thereafter filed a revision petition before the
Additional Revenue Commissioner who vide order dated 02.07.2002
dismissed the petition as being without merits. The Additional Revenue
Commissioner accepted the contention of the Government of Uttarakhand G
that the exchange of lands in question is in fact not an exchange but a
sale; because total land of 4 ½ Muthi has been exchanged with larger
extent of land i.e. 12 Nali of land which is not in any way justified. It is
the law that the rental value of the land given in exchange and of land
received in exchange calculated at the hereditary rates cannot be more H
1008 SUPREME COURT REPORTS [2020] 2 S.C.R.

A than 10% of the lower rental value and in this case, the difference is a
considerable one. According to Section 166 of the Act, the said transfer
is against the provisions of law and is therefore, void.
7. A writ petition was filed by the respondents for quashing of
orders dated 19.07.2000, 30.06.2001 and 02.07.2002 and for issuing a
B direction to the appellants not to interfere with the peaceful possession
of the respondents. Vide impugned judgment dated 18.09.2008, the High
Court accepted the contention of the respondents that the provision of
Section 161 of U.P. ZA & LR Act does not apply when the exchange is
being made by exchange deed. The High Court opined that the provisions
of Sections 161 and 157-B of U.P. ZA & LR Act do not apply in case of
C exchange of the land as is made by executing the document and the
stamp duty as has been provided is paid as per Article 31 of Schedule 1-
B of Indian Stamp Act, which is duly registered. The High Court further
held that the authorities have committed error of law in holding that the
permission under Section 161 of U.P. ZA & LR Act was necessary to
D be obtained before making exchange of the land. It was held that the
provision of Section 157-B does not bar making exchange of the land by
Scheduled Tribe persons because they are also getting land in exchange.
The writ petition was accordingly allowed.
8. Learned counsel for the appellants contended that the High
E Court erred in holding that the provisions of Sections 161 and 157-B of
the Act do not apply in case of exchange of the land whether exchange
is made by executing a registered document where stamp duty is provided
under Article 32 of Schedule 1-B of Indian Stamps Act has been paid.
Taking us through Section 157-B of the Act, the learned counsel submitted
that Section 157-B imposes a complete bar on the right of a bhumidhar
F or asami belonging to the Scheduled Tribe to transfer their land by way
of sale, gift, mortgage or otherwise to a person not belonging to the
Scheduled Tribe. It was submitted that the reasoning of the High Court
is contrary to and in conflict on statutory provisions under Sections 157-
B and 166 of the Act as well as the legislative scheme and intendment of
G the U.P. ZA & LR Act. The learned counsel submitted that the High
Court exceeded its power and jurisdiction under Article 227 of the
Constitution in setting aside the concurrent findings of the Assistant
Collector (dated 19.07.2000) and Additional Judicial Commissioner (dated
30.06.2001) and the Additional Commissioner (Revenue) (dated
02.07.2002). It was submitted that the High Court did not appreciate
H
ADDITIONAL COMMISSIONER REVENUE AND OTHERS v. 1009
AKHALAQ HUSSAIN AND ANOTHER [R. BANUMATHI, J.]

that the provisions of U.P. ZA & LR Act and the mere payment of A
stamp duty will not wipe down the statutory and mandatory bar under
Sections 157-B and 161 of the Act.
9. Per contra, learned counsel appearing for the respondents
submitted that the land in question does not fall within the definition of
“land” under Section 3(14) of the Act and therefore, the provisions of B
U.P. ZA & LR Act are not applicable. Taking us through the exchange
deed dated 16.03.1994, the learned counsel submitted that the fact that
the land was not an “agricultural land” is supported by the fact that the
exchange deed specifically mentions that the land was not an “agricultural
land”. It was further contended that the failure to seek permission for
exchange under Section 161 can never result in vesting under Section C
167 of the Act. It was urged that the Pargana Adhikari who is of the
same level as Tehsildar was not having the jurisdiction to pass the vesting
order and the Assistant Collector alone is empowered to issue such an
order. It was further urged that the ex-parte order of vesting under
Section 167 of the Act without giving opportunity of hearing to the D
respondents is not sustainable. Taking us through Appendix-III of the
U.P. ZA & LR Act, the learned counsel submitted that the limitation for
proceedings under Section 161 at Item No. 20 in Appendix-III has been
specifically mentioned as six years from the date of transfer and thus,
the proceedings in the case is barred by limitation; on the contrary, there
is no question whether they are running a hotel/resort from the year E
1998 or not and the act of consequent taking over possession of the
State will create great hardship to the respondents who are already
burdened by various loans from the financial institutions.
10. We have carefully considered the submissions and perused
the impugned judgment and materials on record. The following points F
arise for consideration in this appeal:-
(i) Whether the exchange deed dated 16.03.1994 is in
contravention of the provisions of U.P. ZA & LR Act in view
of complete bar for the transfer of land by a member of
Scheduled Tribe under Section 157-B of the U.P. ZA & LR G
Act?
(ii) Whether the High Court was right in saying that permission
required under Section 161 of the U.P. ZA & LR Act is not a
requisite condition for the exchange of land?
H
1010 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 11. By the exchange deed dated 16.03.1994, the respondents
Akhalaq Hussain and Saqir executed a registered exchange deed with
Mangal Singh (a Member of Scheduled Tribe) whereby the respondents
are said to have given 4 ½ Muthi of land (one Muthi is equal to 12.5
sq.mtrs. totalling 56.25 sq. mtrs.) in village Khata No.36, Bandobast
Khatuni Khata No.91 situated in village Vim Patti in District Pithoragarh
B
in return for 12 Nali (one Nali is equal to 200 sq.mtrs. totalling 2400
sq.mtrs.) of agricultural land in Bandobast Khatauni Khata No.43 situated
in village Mall Ghorpatta, Munsiari, District Pithoragarh. In this exchange
deed, possession of the land consisting 3½ Muthi of land from Khata
No.553 and 1 Muthi of land from Khata No.554 is said to have been
C handed over to Mangal Singh by the respondents. Similarly, Mangal Singh
is said to have handed over possession of the land consisting of Khatauni
Khata Bandobast No.37 and 12 Nali out of Panchshala Khatauni No.43,
the area of which admeasures 12 Nali.
12. Mangal Singh is a member of Scheduled Tribe and this factum
D has not been disclosed in the exchange deed. As per Section 157-B of
the Act, a bhumidhar or asami belonging to Scheduled Tribe cannot
transfer his land to a person not belonging to Scheduled Tribe. Section
157-B reads as under:-
157-B. Restrictions on transfer of land by members of
E Scheduled Tribes. – (1) Without prejudice to the restrictions
contained in Sections 153 to 157, no bhumidhar or asami belonging
to a Scheduled Tribe shall have the right to transfer by way of
sale, gift, mortgage or lease or otherwise any land to a person not
belonging to a Scheduled Tribe.

F As per Section 166 of the Act, any transfer made in contravention
of the provisions of the Act shall be void. Since the exchange deed has
been executed in violation of the provisions of Section 157-B of the Act,
the transfer is void and is liable to be set aside and the land is liable to be
vested in the State Government.

G 13. As soon as the exchange came to the notice of the competent
authority, cognizance was taken and the Sub-Divisional Officer/Assistant
Collector invoked the provisions of Section 166 of the Act and declared
the exchange deed dated 16.03.1994 void as it was executed in violation
of Section 157-B and Section 161 of the Act. The Assistant Collector by
order dated 19.07.2000 ordered the subject land to vest in the State as
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ADDITIONAL COMMISSIONER REVENUE AND OTHERS v. 1011
AKHALAQ HUSSAIN AND ANOTHER [R. BANUMATHI, J.]

per Section 167 of the Act and directed the respondents to handover A
possession of the land within thirty days.
14. Re. Contention – Land is not an agricultural land:- On
behalf of the respondents, it was contended that the land in question is
not an “agricultural land” and that it does not fall within the definition of
“land” under Section 3(14) of the Act and therefore, provisions of Chapter B
VIII of the Act are not applicable. The question as to whether a particular
land is “land” as defined under Section 3(14) of the Act to which the
provisions of U.P. ZA & LR Act are applicable would require
determination. The question whether such land is held or occupied for
purposes connected with agriculture, horticulture or animal husbandry
has to be determined in accordance with the provisions of Sections 143 C
and 144 of the Act. Section 3(14) of the Act defines “land” as under:-
3. Definitions.
…….
(14) “Land” except in Sections 109, 143 and 144 and Chapter D
VIII means land held or occupied for purposes connected with
agriculture, horticulture or animal husbandry which includes
pisciculture and poultry farming.
15. The respondents have placed reliance upon the recitals in the
exchange deed in which it is mentioned that the land in question is not an E
“agricultural land” and also the counter affidavit of the State filed before
the High Court wherein it is mentioned that the Hotel in the disputed
land is situated in the market area of Munsiari township. In this regard,
it is pertinent to note that for changing the nature of land from
“agricultural” to “abadi”, declaration as stipulated in Sections 143 and F
144 is required. The provisions under Section 143 of the Act are initiated
suo motu or on an application moved by a bhumidhar with transferable
rights and an enquiry is required to be conducted by the Assistant Collector
as prescribed under the Act. Section 143 of the Act reads as under:-
“143. Use of holding for industrial or residential purposes.
G
- (1) Where a bhumidhar with transferable rights uses his holding
or part thereof for a purpose not connected with agriculture,
horticulture or animal husbandry which includes pisciculture and
poultry farming, the Assistant Collector-in-charge of the sub-
division may, suo motu or on an application, after making such
enquiry as may be prescribed, make a declaration to that effect. H
………
1012 SUPREME COURT REPORTS [2020] 2 S.C.R.

A (2) Upon the grant of the declaration mentioned in sub-section (1)
the provisions of this chapter (other than this section) shall cease
to apply to the bhumidhar with transferable rights with respect to
such land and he shall thereupon be governed in the matter of
devolution of the land by personal law to which he is subject.
B (3) Where a bhumidhar with transferable rights has been granted,
before or after the commencement of the Uttar Pradesh Land
Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh
Financial Corporation or by any other Corporation owned or
controlled by the State Government, on the security of any land
held by such bhumidhar, the provisions of this Chapter (other than
C this section) shall cease to apply to such bhumidhar with respect
to such land and he shall thereupon be governed in the matter of
devolution of the land by personal law to which he is subject.”
Where such a declaration is made under Section 143 of the Act,
the provisions of Chapter-VIII of the U.P. ZA & LR Act (except Section
D 143) ceased to apply to the bhumidhar with transferable rights with
respect to such land.
16. It has been held in Chandrika Singh and others v. Raja
Vishwanath Pratap Singh and another (1992) 3 SCC 90 that in order
to exclude the applicability of provisions of U.P. ZA & LR Act on the
E ground that the land is abadi land, it is necessary to determine that it is
in accordance with the provisions of Sections 143 and 144 of the Act
and whether such a declaration under Sections 143 and 144 of the Act
has been made in accordance with the provisions of the Act. In para
Nos. (9) and (15), it was held as under:-
F “9. The aforesaid provisions show that under Section 331(1)
exclusive jurisdiction in respect of suits, applications and
proceedings referred to in Schedule II of the Act has been conferred
on the courts specified in the said schedule and the said
proceedings, suits and applications cannot be entertained by the
G civil courts. The proviso to Section 331(1) lifts the said bar in
relation to any holding or part thereof where a declaration has
been made under Section 143. Section 143 empowers the Assistant
Collector after making enquiry as may be prescribed, to make a
declaration that a holding or part thereof is being used or held by
a bhumidar for purposes not connected with agriculture,
H
ADDITIONAL COMMISSIONER REVENUE AND OTHERS v. 1013
AKHALAQ HUSSAIN AND ANOTHER [R. BANUMATHI, J.]

horticulture or animal husbandry. Where such a declaration is made A
in respect of a part of the holding, the Assistant Collector is required
to demarcate the said part. The effect of the grant of such a
declaration is that the provisions of Chapter VIII (except Section
143) cease to apply to the bhumidar with transferable rights with
respect to such land.
B
………
15. ……..In our opinion, the question as to whether a particular
land is “land” under Section 2(14) to which the provisions of the
Act are applicable would require determination of the question
whether the land is held or occupied for purposes connected with C
agriculture, horticulture or animal husbandry and that is a matter
which has to be determined either in accordance with the
provisions of Sections 143 and 144 and if such a determination
has not been made and such a question arises or is raised in a suit
before a court, the procedure laid down in Section 331-A must be
followed by the court. This would be so even in a case where a D
building exists on the land and the land is claimed to be appurtenant
to the building because in such a case it will be necessary to
determine the extent of the land that is appurtenant to the building,
i.e. whether the entire land or only a part of it is so appurtenant to
the building and for that reason is not held or occupied for purposes E
connected with agriculture, horticulture or animal husbandry. This
determination has to be made in accordance with the provisions
of Sections 143 and 144 or Section 331-A of the Act.”
17. In the present case, the respondents have not produced any
such document which shows that declaration required under Section F
143 of the Act has been made much less registered. In the absence of
such declaration, the land is deemed to be an “agricultural land” as per
the provisions of Section 3(14) of the Act.
18. The respondents placed reliance upon the recitals in the
exchange deed to show that the land is not an “agricultural land”. The G
recitals in the exchange deed can be of no help to the respondents as the
said document is a self-serving document and cannot operate as a
document to prove that the land is an “abadi land”. Likewise, the
respondents sought to place reliance upon the counter affidavit filed by
the appellants where it is averred that the suit property is situated in the
H
1014 SUPREME COURT REPORTS [2020] 2 S.C.R.

A market area of Munsiari township. The averments in the counter affidavit
filed by the State can be of no assistance to the respondents. For claiming
the nature of the land as “abadi land”, a declaration as stipulated in
Section 143 is required and the said declaration is also required to be
registered. As pointed out earlier, the respondents have not produced
any document which shows that the declaration as required under Section
B
143 of the Act has been made. In the absence of such declaration, the
land cannot be said to be “abadi land”. Since the land is an “agricultural
land”, the provisions of U.P. ZA & LR Act are applicable to the land in
question.
19. Section 161 of the Act pertains to exchange of land. As per
C Section 161 of the Act, a bhumidhar may exchange land with another
bhumidhar or with any Gaon Sabha or local authority, with the prior
permission of an Assistant Collector. Section 161 reads as under:-
“161. Exchange. – (1) A bhumidhar may exchange with –
D (a) any other bhumidhar land held by him; or
(b) any Gaon Sabha or local authority, lands for the time being
vested in it under Section 117:
Provided that no exchange shall be made except with the
permission of an Assistant Collector who shall refuse permission
E if the difference between the rental value of land given in exchange
and of land received in exchange calculated at hereditary rates is
more than 10 per cent of the lower rental value.
…….”
Insofar as the land belonging to a member of Scheduled Tribe,
F
exchange is not permissible. Under Section 157-B of the Act, no
bhumidhar or asami belonging to a Scheduled Tribe, shall have the right
to transfer by way of “sale, gift, mortgage or lease or otherwise any
land to a person not belonging to a Scheduled Tribe”. The language
used in Section 157-B of the Act “or otherwise” emphasizes that the
G land belonging to a Scheduled Tribe cannot be transferred in any manner
whatsoever. It is pertinent to note that in Section 157-A of the Act which
deals with restrictions on transfer of land by members of Scheduled
Castes, the language used is “by way of sale, gift, mortgage or lease to
a person not belonging to a Scheduled Caste”. Absence of word “or
otherwise” in Section 157-A of the Act shows that while exchange may
H
ADDITIONAL COMMISSIONER REVENUE AND OTHERS v. 1015
AKHALAQ HUSSAIN AND ANOTHER [R. BANUMATHI, J.]

be permissible of a land belonging to members of Scheduled Caste to a A
person belonging to Scheduled Caste, such an exchange is prohibited
under Section 157-B of the Act – Restriction on transfer of land of a
member of a Scheduled Tribe.
20. For the sake of arguments, even assuming that Section 161 of
the Act is applicable, according to Section 161 of the Act, exchange by B
a bhumidhar with another bhumidhar or with any Gaon Sabha or local
authority is permissible only with the prior permission of the Assistant
Collector. Use of the word “shall” in the proviso to Section 161 of the
Act clearly indicates that for a valid exchange, it is mandatory to obtain
permission of the Assistant Collector. In the instant case, admittedly, no
prior permission was sought from the Assistant Collector as mandated. C
In the absence of fulfilling of pre-requisite condition as laid down in
Section 161 of the Act, the exchange has to be necessarily held to be
void.
21. Contention of the learned counsel for the respondents is that
even post-facto approval for the exchange is sufficient and need not D
necessarily be prior permission. In this regard, learned counsel for the
respondents has submitted that the Tehsildar, Munsiari effected mutation
in the revenue record which amounts to ex-post facto approval for the
exchange. It was also submitted that the respondents preferred project
report for construction of a Hotel at Munsiari and after obtaining E
necessary approval from the concerned authorities and by taking loan
from the financial institutions, the Hotel was constructed and
commissioned in the year 2000 and the approval from various authorities
for construction and running the Hotel would amount to ex-post facto
approval. In support of his contention, learned counsel placed reliance
upon Life Insurance Corporation of India v. Escorts Ltd. and others F
(1986) 1 SCC 264.
22. There is no merit in the contention that for exchange of land
prior permission under Section 161 of the Act is not required. It is to be
pointed out by a reading of the provisions of Section 161 of the Act that
the Assistant Collector shall refuse permission if the difference between G
the rental value of the land given in exchange and of the land received in
exchange calculated as hereditary rates is more than 10% of the lower
rental value. In the instant case, the respondents exchanged 4½ Muthi
land (56.25 sq. mtrs. of land) with Mangal Singh’s 12 Nali land (2400 sq.
mtrs. of land), the annual rental value for 12 Nali is Rs.2.50/- and for 4½ H
1016 SUPREME COURT REPORTS [2020] 2 S.C.R.

A Muthi, it is Rs.0.05/-. The difference between the value of the two is
clearly more than 10%. Even assuming that Section 161 of the Act is
applicable, on this ground, the Assistant Collector was bound to refuse
the permission even if the respondent had applied for it.
23. As per proviso to Section 161 of the Act, it is incumbent upon
B the Assistant Collector to calculate the rental value of the land given in
exchange and of the land received in exchange and if the difference is
more than 10% of the lower rental value then the Assistant Collector
shall refuse the permission. Thus, the pre-requisite condition for grant of
permission is the calculation of the rental value and if the difference
between the rental value of land given in exchange and of land received
C in exchange is more than 10%, then the Assistant Collector shall refuse
the permission. The pre-requisite condition of calculation of the rental
value clearly suggests that the permission of the Assistant Collector is a
pre-requisite condition for a valid exchange. We have referred to Section
161 of the Act only for the sake of completion. As pointed out earlier,
D Section 157-B of the Act prohibits even exchange of the land to a person
not belonging to a Scheduled Tribe.
24. The respondents have not explained as to why Mangal Singh
(a member of Scheduled Tribe) wanted to exchange his large extent of
land i.e. 12 Nali (2400 sq. mtrs.) with a much smaller piece of land i.e.
E 4½ Muthi (56.25 sq. mtrs.). This aspect raises doubt about the
genuineness of the exchange deed. This aspect casting doubt upon the
validity of the exchange deed is further strengthened by the fact that the
names of the respondents have been mutated in the land of Mangal
Singh in Bandobast Khatuni Khata No.43; whereas the name of Mangal
Singh has not been mutated in village Khata No.36, Bandobast Khatuni
F Khata No.91. These circumstances clearly indicate that the exchange
deed relied upon by the respondents is not a valid exchange and has
been executed in violation of the provisions of the U.P. ZA & LR Act.
25. U.P. ZA & LR Act is a beneficial legislation which has been
enacted to protect the interest of the exploited rural masses. The Preamble
G of the U.P. ZA & LR Act shows that it is an Act to provide for the
abolition of zamindari system which involves intermediaries between
tiller of the soil and the State in U.P. (adopted by the State of Uttarakhand)
and for the acquisition of the rights, title and interest and to reform the
law relating to land tenure consequent upon such abolition and acquisition
H and to make provisions for other matters connected therewith. Observing
ADDITIONAL COMMISSIONER REVENUE AND OTHERS v. 1017
AKHALAQ HUSSAIN AND ANOTHER [R. BANUMATHI, J.]

that agriculture is the only source of livelihood for Scheduled Tribes A
apart from the collection and sale of minor forest produce to supplement
their income and that it is a source of economic empowerment, in
Samatha v. State of A.P. and others(1997) 8 SCC 191, it was held as
under:-
“9. Agriculture is the main part of the economy and source of B
livelihood to the rural Indians and a source and succour for social
status and a base for dignity of person. Land is a tangible product
and sustaining asset to the agriculturists. In Waman Rao v. Union
of India (1981) 2 SCC 362 a Constitution Bench had observed
that India being a predominantly agricultural society, there is a
“strong linkage between the land and the person’s status in social C
system”. The strip of land on which they till and live assures them
equal justice and “dignity of their person by providing to them a
near decent means of livelihood”. Agricultural land is the foundation
for a sense of security and freedom from fear. Assured possession
is a lasting source for peace and prosperity. D
10. Agriculture is the only source of livelihood for Scheduled Tribes,
apart from collection and sale of minor forest produce to
supplement their income. Land is their most important natural and
valuable asset and imperishable endowment from which the tribals
derive their sustenance, social status, economic and social equality, E
permanent place of abode and work and living. It is a security and
source of economic empowerment. Therefore, the tribes too have
great emotional attachment to their lands. The land on which they
live and till, assures them equality of status and dignity of person
and means to economic and social justice and is a potent weapon
of economic empowerment in social democracy.” F

The U.P. ZA & LR Act being a beneficial legislation, the provisions
need to be interpreted in a manner so as to achieve the rationale behind
the legislation.
26. Despite the alleged exchange said to have been effected in G
1994, the land in village Khata No.36, Bandobast Khata Khatuni No.91
have not been mutated in the name of Mangal Singh. As per the Report
of the Tehsildar dated 04.12.2000, village Khata No.36, Bandobast Khata
Khatuni No.91 continue to remain in the name of respondents Akhalaq
Hussain and Saqir Hussain and there is no noting in the name of Mangal
Singh. H
1018 SUPREME COURT REPORTS [2020] 2 S.C.R.

A 27. As per Section 166 of the Act, every transfer made in
contravention of the provisions of the U.P. ZA & LR Act shall be void.
Section 167 of the Act refers to the consequences which shall ensue in
respect of every transfer which is void by virtue of Section 166 of the
Act. Taking us through Appendix-III of U.P. ZA & LR Act, learned
counsel for the respondents submitted that under Section 167 of the Act,
B
the limitation period is six years from the date of illegal transfer. It was
therefore submitted that suo motu action taken by the Assistant Collector/
Pargana Magistrate vide order issued on 19.07.2000 (which is beyond
the period of six years) is barred by limitation. Serial No.20 of Appendix-
III to U.P. ZA & LR Act reads as under:-
C Se rial Section of Description Pe riod of Time from Prope r
No. the Act of suit, limitation which Court fees
application pe riod
and other begins to
procee ding run
…………
20. 167 Suits for Six years From the As in the
D ejectment of date of Court Fees
a sirdar or illega l Act, 1870, on
asami transfer the year’s
revenue.
………………

28. Even at the outset, it is to be pointed out that Serial No.20 of
E Appendix-III relates to suit for ejectment of a sirdar or asami and is not
relevant insofar as void transfers which are made in contravention of
the provisions of the U.P. ZA & LR Act. If the period of limitation is to
be applied for the void transfers which are made in contravention of the
provisions of the Act, the very object of the U.P. ZA & LR Act would be
defeated. There has to be a harmonious construction of the provisions
F
of the Act. The instant exchange being void since its inception, the transfer
being void in terms of Section 166 of the Act, the consequences enshrined
in Section 167 of the Act shall automatically follow. Cognizance of the
exchange deed was taken by the Pargana Magistrate and it cannot be
said that the order passed on 19.07.2000 is barred by limitation. There is
G no merit in the contention that the order passed by the Pargana Magistrate
dated 19.07.2000 is barred by limitation.
29. Learned counsel for the respondents has submitted that the
respondents have availed loan from financial institutions and have been
running a hotel under the name of “ZARA Resort” and it is their only
H source of livelihood. As discussed earlier, Section 157-B of the Act puts
ADDITIONAL COMMISSIONER REVENUE AND OTHERS v. 1019
AKHALAQ HUSSAIN AND ANOTHER [R. BANUMATHI, J.]

a complete bar on a bhumidhar or asami belonging to Scheduled Tribe A
to transfer their land by way of sale, gift, mortgage or lease or otherwise
to a person not belonging to Scheduled Tribe. The exchange deed dated
16.03.1994 being in contravention to the provisions of the U.P. ZA &
LR Act is void. The consequences have to follow as per Section 167 of
the Act. In case, if the transfer is void under the provisions of the Act,
B
there is no justification to consider the request of the respondents on the
ground that they are running the Hotel by availing loan from the financial
institutions. When the transfer has been made in contravention of the
provisions of U.P. ZA & LR Act, there is no ground for considering the
questions of equity. Lest, it would defeat the provisions of the Act.
30. The High Court has ignored the provisions of U.P. ZA & LR C
Act and held that the provisions of Sections 161 and 157-B of the Act do
not apply in case of exchange of land which has been made by executing
a document where the stamp duty has been paid as per Indian Stamp
Act and the document duly registered. The High Court erred in saying
that Section 157-B of the Act does not bar making of exchange by a D
person of Scheduled Tribe because he is getting a land in exchange. As
discussed earlier, there is clear bar under Section 157-B of the Act for
transfer of land by a Scheduled Tribe even by way of exchange as the
word “or otherwise” indicates. When there is a clear statutory provision
barring the transfer, it was not open to the High Court to substitute its
view in the place of that provision. Any such interpretation would defeat E
the benevolent object of the provisions of the U.P. ZA & LR Act and
also the constitutional scheme providing for the social and economic
empowerment of the Scheduled Tribes. The order of the High Court is
contrary to the express provisions of U.P. ZA & LR Act and is also
against the benevolent provisions of the Act and the impugned judgment F
cannot be sustained.
31. In the result, the impugned judgment of the High Court is set
aside and this appeal is allowed. The appellants are at liberty to proceed
in accordance with law.
G
Divya Pandey Appeal allowed.

H