Ashok Bhushan - (1.) -Heard learned counsel for the petitioner. By this writ petition, the petitioner has prayed for quashing the order dated 1.11.2007 passed by the Additional Commissioner as well as the order of the Additional Collector dated 15.5.2006.
(2.) THE petitioner purchased plot No. 1018m area 0.506 hectare from one Tejpal Singh by registered sale deed dated 31.10.2003. THE petitioner filed an application for mutation for mutating her name. Tejpal Singh did not file any objection but his son Raj Singh filed objection on 3.12.2003. On the basis of the aforesaid objection, Tehsildar conducted an enquiry and submitted his report on 15.3.2004 stating therein to initiate proceedings against the petitioner under Sections 166 and 167 U.P.Z.A. and L.R. Act. THEreafter, a notice was issued on 20.3.2004 by the Additional Collector to the petitioner under Section 166/167 of U.P.Z.A. and L.R. Act with the allegation that petitioner had purchased lease land and he may show cause why the land be not vested in the State. THE petitioner filed reply to the objection on 6.10.2005 to the notice issued to him. THE Additional Collector vide order dated 15.5.2006 held that the plot No. 1018m was a lease land which was bhumidhari with non-transferable rights and there was no right with the vendor to transfer the land. It was held that the transfer was against the provisions of U.P.Z.A. and L.R. Act and the land is to be vested in the State. THE petitioner filed revision before the Additional Commissioner which was dismissed vide order dated 1.11.2007. Learned counsel for the petitioner contends that although the land was a lease land but lease having been executed in favour of Tejpal Singh on 8.6.1994, after expiry of 10 years, the Tejpal Singh became the bhumidhar with transferable right under Section 131B of the U.P.Z.A. and L.R. Act, hence, by virtue of Section 43 of the Transfer of Property Act, the petitioner will acquire interest and the sale could not be declared as void. He has also relied on a Division Bench judgment of this Court in Desh Raj and others v. Lal Sahai Singh and others, 1974 RD 92. Learned counsel for the petitioner contends that petitioner has submitted a reply to the notice but the order was passed with the observation that no notice was given.
(3.) THE first submission of the petitioner is based on Section 43 of the Transfer of Property Act. THE date of lease is dated 8.6.1994. According to the petitioner's case under Section 131B, the vendor could have become bhumidhar with transferable rights after expiry of 10 years and by virtue of Section 43 of Transfer of Property Act, since the petitioner professed sale of bhumidhari, land rights of petitioner cannot be defeated. In this context, it is relevant to refer to Sections 166 and 167 (1) (a) of the U.P.Z.A. and L.R. Act, which is as under : "166. Transfer made in contravention of this Chapter to be void.-Every transfer made in contravention of the provisions of this Act shall be void. 167. Consequences of void transfers.-(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;" Section 43 of the Transfer of Property Act provides that where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate or any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Section 43 of the Transfer of Property Act is quoted below : "43. Transfer by unauthorized person who subsequently acquires interest in property transferred.-Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate or any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option." ;