- (1.) HEARD Sri B.L. Yadav, learned counsel for the petitioner, learned Standing Counsel for the Respondents No.1, 2, 3 & 4 and Sri D.D. Chauhan for the Respondent No.7, Gaon Sabha. Notice need not be issued to the Respondents No.5 & 6 in view of the order being passed herein.
(2.) THIS writ petition has been filed assailing the order dated 31.08.2012 passed by the Additional Collector (Administration) Etah, in Case No.7 of 2012 under Section 166/167 of the U.P.Z.A. and L.R. Act. According to learned counsel for the petitioner, the petitioner is the purchaser of the land in question from the Respondent No.5, Munna Lal and under the impugned order which has been based on a complaint of a third person it has been held that there was violation of Section 157-A of the Act and as such in view of Section 166/167 of the Act the land would vest in the State Government and the Tehsildar has been directed to obtain possession. According to learned counsel, the impugned order is without jurisdiction inasmuch as if the petitioner was to be evicted from the land in question proceedings as contemplated under Section 331 of the Act read with Schedule II thereunder ought to have been initiated by the Gaon Sabha and in absence of any such proceedings the petitioner could not be dispossessed from the land in question. Having considered the submission of learned counsel for the petitioner and perused the record, the provision of Section 166 of the Act have been invoked in the present case when the land has been transferred by a person falling within category of Section 157(A) of the Act. The consequences as provided under Section 166 are by operation of law and such consequences are that such a transfer in contravention of Section 157-A of the Act shall be void. Such a transfer would be void by operation of law. Section 167 of the Act provides for consequences that shall ensue in respect of a transfer which is void under Section 166 of the Act. Sub Section 2 of Section 167 of the Act clearly provides that when the land has been vested in the State Government under that provision it shall be lawful for the Collector to take over possession of such land and direct such person occupying the land to be evicted therefrom and for the purpose of taking over possession or evicting such an occupant the Collector may use or cause to be used such force as may be necessary.
(3.) SCHEDULE II of the Act relates to the proceedings under Section 331 of the Act and the description of proceedings, the Court of original jurisdiction the Court of First Appeal and the Court of Second Appeal have been described thereunder. According to learned counsel, Item No.15 is relevant for the present case. Item No.15 of Schedule II relates to Section 166 read with Section 201 and Section 202(a) of the Act, wherein it provides that a suit for ejectment of a transferee from a bhumidhar with non-transferable rights or of an assami, shall lie before the Assistant Collector (Ist Class). It is on the basis of the aforesaid provision in the schedule that learned counsel states that the order impugned passed by the Additional Collector (Administration) Etah is without jurisdiction. The above submission of learned counsel for the petitioner is quite misconceived. Item No.15 of Schedule II of the Act relates to ejectment of a transferee of a bhumidhar with non-transferable rights or of an assami. Clearly, in the present case the petitioner pleads to have purchased the property from the Respondent No.5, who was competent to transfer such property and he was not a bhumidhar with non- transferable rights. As such the submission of learned counsel for the petitioner while referring the Item No.15 of Schedule II is self-contradictory. In case, his argument that his vendor did not have any transferable rights so as to attract Item No.15 of Schedule II then the sale deed itself would be bad. But the sale deed has been obtained from the respondent no.5, who according to learned counsel for the petitioner had transferable rights and in that event Item No.15 Schedule II clearly does not apply. As such the proceedings under Section 166/167 of the U.P.Z.A. & L.R. Act were not maintainable before the Assistant Collector (Ist Class) as provided under the Item No.15 Schedule II.;