JUDGMENT Ashok Bhushan, J.
1. Heard learned Counsel for the petitioner and learned standing Counsel.
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.
2. 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 Section 157-AA was obtained hence, the land is vested in the State. The petitioner filed an appeal which has been dismissed by the Commissioner.
3. Learned Counsel for the petitioner challenging the impugned orders, contended that the respondent No. 5 became Bhumidhar with transferable rights since 10 years period had expired from the grant of lease and further no permission 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 petitioner 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 submits that there is no error in the impugned order and the writ petition is liable to be dismissed.
4. 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 Assistant 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 person 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 approval 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 application 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 becoming bhumidhar under Section 131-B. (1) Notwithstanding anything contained in Section 157-A, and without prejudice to the restrictions contained in Sections 153 to 157, no person belonging to a Scheduled Caste having become 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 transfer, 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 belonging to 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 land 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 (i) and (2).
(4) No transfer under this section shall be made except with the previous approval of the Assistant Collector concerned.
5. The provisions of Section 157-A contains a restriction that 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 approval of the Collector. Section 157-AA provides that no person belonging to a Scheduled Castes having become 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 the same shall be in the order of preference as contained in Sub-section (1) of Section 157-AA. There is a clear distinction between the restrictions contained under Section 157-A and Section 157-AA. Section 157-A provides that no bhumidhar or asami belonging to a Scheduled Caste can transfer the land to a person not belonging to the Scheduled Caste except with the previous approval of the Collector whereas Section 157-AA contains a clear restriction that a person belonging to Scheduled Caste who have become bhumidhar with transferable rights under Section 131 -B shall have no right to transfer to any person other than person belonging to Scheduled Caste. The transfer under Section 157-AA is permissible only to a person belonging to Scheduled Castes in the order of preference as prescribed in Sub-section (1). Thus, Scheduled Caste cannot transfer the land in favour of a person not belonging to Scheduled Caste in any contingency. Further, this restriction is on reasonable basis since land which has been contemplated under Section 157-AA is a land which is allotted to a person belonging to Scheduled Caste. The restriction is more stringent in this sub-section since the land is lease land and grant of agricultural lease is contemplated under the Act for the specified object and purpose. Much emphasis has been laid down by learned Counsel for the petitioner that Sub-section (1) of Section 157-AA will not apply when transfer is in favour of Scheduled Caste. Sub-section (4) of Section 157-AA contains an injunction to the effect that no transfer under this section shall be made except with the previous approval of the Assistant Collector concerned. Sub-section (4) is in a very wide terms when it refers to "transfer under this section". This clearly means that it embraces itself all the transfers which are contemplated in Section 157-AA. Thus, even if the transfer is by a Scheduled Caste in favour of a Scheduled Caste, it is fully covered by the restrictions contained under Sub-section (4) of Section 157-AA. In case, the interpretation as put by learned Counsel for the petitioner to Sub-section (4) of Section 157-AA is accepted, then the restrictions put under this Sub-section will be meaningless and redundant. There is valid reason for requiring previous permission of the Assistant Collector. The reason which is deciphered from the scheme of section is, that even the transfer by a Bhumidhar belonging to Scheduled Caste to a person belonging to Scheduled Caste shall be in accordance with the preference mentioned in Sub-section (1). A Scheduled Caste who is bhumidhar with transferable right under Section 131-B has no free choice of transfer to any Scheduled Caste of his own choice. The order of preference given under Sub-section (1) has its own object and purpose. The object obviously is that if transfer is made, the said transfer shall first go to landless agricultural labourer and thereafter to marginal farmer. The reason obviously is that the land being a lease land, the rights of a lessee have to be regulated in a manner which may advance the object and purpose of the Act. Thus, the prior approval of the Assistant Collector is contemplated which is obviously to consider and decide as to whether permission can be accorded and the transfer which is sought, is in accordance with the Scheme of Sub-section (1) of Section 157-AA. If no permission is required for a land to be transferred by Scheduled Caste to another Scheduled Caste, then there will be no stage of inquiry whether the transfer is in accordance with the preference given in Sub-section (1).
6. In view of the foregoing discussions, I am of the considered view that permission is also required when a transfer is made by a person belonging to Scheduled Caste who has become bhumidhar with transferable right under Section 131-B in favour of a person belonging to Scheduled Caste. In the present case, the transfer was made without any such permission and the courts below have rightly taken the view that transfer is void and consequences under Section 167 of the Act shall follow. In view of the aforesaid, there is no error in the impugned orders which may warrant any interference by this Court, while exercising the jurisdiction under Article 226 of the Constitution of India.
7. The writ petition is dismissed.