RAJ KUMARI Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri R.C. Singh, learned counsel for the petitioner and Sri Rajes Kumar, learned Standing Counsel for the respondent Nos. 1 and 2 and Sri Rakesh Kumar, learned counsel for the respondent No. 3, who has filed his Vakalatnama today. This petition raises a pure question of law and Sri R.C. Singh contends that the impugned orders deserve to be set aside as they proceed on a totally incorrect application of the legal provisions contained in the U.P.Z.A.& L.R. Act, 1950. The petitioner applied for mutation in proceedings under Sections 34 /35 of the Land Revenue Act. The undisputed facts are that one Budhhan was the asami lease holder of the disputed holding with Bhumidhari rights having accrued in his favour by virtue of the prescription as provided under Section 131-B of the U.P.Z.A. & L.R. Act. After having become Bhumidhar, Budhan sold the land in dispute on 29.6.2010 in favour of the respondent No. 3.

(2.) The petitioner contends that she had advanced a certain sum of money to the respondent No. 3 against which the said disputed holding was mortgaged in favour of the petitioner by the respondent No. 3. Since the mortgage was usufructuary and possession has been handed over, the petitioner claims that the said transaction amounted to transfer under Section 164 of the 1950 Act and, therefore, she applied for mutation under Section 34 of the U.P. Land Revenue Act, 1901.

(3.) Sri. Singh contends that the transfer was under the deeming provision of Section 164 of U.P.Z.A.& L.R. Act read with Section 154 thereof. He submits that there was no restriction in terms thereof and that the respondent No. 3 did not suffer from any infirmity so as to further mortgage the said land or transfer her rights as the Bhumidhar. In the absence of any such restrictions provided under Section 164, the refusal to mutate the name of the petitioner is unjust and without any basis. He therefore contends that the impugned orders deserve to be set aside with a direction to the Competent Authority to mutate the name of the petitioner treating her to be a valid transferee in terms of Section 164 of the 1950 Act. Sri. Rajesh Kumar, learned Standing Counsel contends that admittedly Budhan was the Bhumidhar in whose favour rights had accrued in terms of Section 131-B of the 1950 Act. Budhan had executed a sale-deed in favour of the respondent No. 3 on 29.6.2010. Thus the respondent No. 3 was transferee prohibited from transacting the said holding keeping in view the provision of Section 157-AA(5). He submits that a transferee from a Bhumidhar under Section 131-B is restricted from transacting the land for a further period of ten years from the date of said purchase.