- (1.) ASHOK Bhushan, J. Heard learned Counsel for the petitioner and learned Standing Counsel.
(2.) BY this writ petition the petitioner has prayed for quashing the order dated 3. 12. 2007, passed by the Commissioner as well as order dated 30. 5. 2002, passed by the Sub Divisional Officer, Bareilly Brief facts necessary for deciding the present writ petition are; that the respondent No. 5, Bhola was granted agricultural lease of plot No. 1398/2 area 0. 341 hectares. The respondent No. 5 executed a sale deed in favour of the petitioner of the land in dispute. A report was submitted by the Naib Tahsildar dated 14. 12, 2001 to the effect that the transfer was hit by Section 157-AA of the U. P Zamindari Abolition and Land Reforms Act, 1950 as the transfer of land was made without obtaining previous permission of the Assistant Collector. The Sub Divisional Officer initiated proceedings under Section 157 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 and while passing the order dated 30. 5. 2002 recorded a finding that neither ten years had expired from the date of being Bhumidhar with transferable rights nor permission for transfer provided under Sec tion 157-AAwas obtained hence, the land is vested in the State. The petitioner filed an appeal which has been dismissed by the Commissioner. Learned Counsel for the petitioner challenging the impugned orders, con tended that the respondent No. 5 became Bhumidhar with transferable rights since 10 years period had expired from the grant of lease and further no permis sion was required since the transfer had been made on 30. 9. 2001 in favour of the petitioner who is also member of Scheduled Caste. Learned Counsel for the peti tioner contends that under Section 157-AA, the permission is required only when the transfer is made in favour of a person other than Scheduled Caste. He further submits that since the transfer was made in favour of a person belonging to Scheduled Caste, no permission was required and the view of the Courts below is incorrect. Learned Standing Counsel contends that the land being lease land, the permission of Assistant Collector was required under Section 157-AA. He sub mits that there is no error in the impugned order and the writ petition is liable to be dismissed.
(3.) I have considered the submissions of Counsel for both the parties and perused the record. The issue which has arisen in the writ petition is as to whether the transfer made under Section 157aa by a lease holder who belongs to Scheduled Caste in favour of a person who also belongs to Scheduled Caste, the permission of Assis tant Collector is required or not. The submission of the learned Counsel for the petitioner is that the permission is required only when transfer is made to a per son other than a person of Scheduled Caste. Learned Counsel for the petitioner referred to sub clause (1) of Section 157-AA. For appreciating the submission of learned Counsel for the petitioner, it is necessary to look into the Scheme of the Act with regard to transfer under the U. P. Zamindari Abolition and Land Reforms Act, 1950, Section 131-B provides that Bhumidhar with non-transferable rights will become a bhumidhar with transferable rights after ten years. The restriction for transfer of land is contained under Section 157-A and 157-AA, which are being quoted herein below: "157-A. Restrictions on transfer of land by members of Scheduled Castes.- (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 ap proval 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 transferor on the date of applica tion 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. "157-AA. Restrictions on transfer by member of Scheduled Castes be coming bhumidhar under Section 131-B.- (1) Notwithstanding anything con tained in Section 157-A and without prejudice to the restrictions contained in Sections 153 to 157, no person belonging to a Scheduled Caste having be come 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 trans fer, 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 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 (and 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 Clause (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. ' Tribe is available, the land may be transferred to a person belonging to a Scheduled Caste in the order of preference given in sub-sections (1) and (2 ). (4) No transfer under this section shall be made except with the previous approval of the Assistant Collector concerned. ";