The Apex Court upholds that Land Belonging to Scheduled Tribes being Transferred by an Exchange Deed is Void

Additional Commissioner Revenue v. Akhalaq Hussain and Another

(CIVIL APPEAL NO.7346 OF 2010)

The Supreme Court in this judgement dated 3 March 2020 allowed the appeal and held that
the order of the High Court was contrary to law because it violated the provisions of UP
Zamindari Abolition and Land Reform Act, 1950 (U.P. ZA & LR Act).
Appeal from High Court:
This case is an appeal from a judgement of Uttarakhand High Court dated 18 September 2008
whereby the order of the Additional Commissioner, Revenue was set aside.
Judge:
 This case was decided by Justice R. Banumathi.
Facts:
 Respondents, Akhalaq Hussain and Saqir Hussain, entered into an exchange deed
with Mangal Singh. Mangal Singh was a member of the Scheduled Tribe but the
respondents were not.
 The respondents claimed to have constructed a hotel with the name “Zara Resort” on
that land.
Arguments for the Transfer of Land to non-Scheduled Tribe person:
 There was no violation of the U.P. ZA & LR Act because the statute that would apply
here is the Transfer of Property Act, 1882.
 The exchange of land was via mutual consent.
 High Court accepted the contention of the respondents that the provision of section
161 of U.P. ZA & LR Act does not apply when the exchange is being made by
exchange deed.
 It was held by the High Court that the provision of section 157-B does not bar making
exchange of the land by Scheduled Tribe persons because they are also getting land in
exchange.

 Thus as per the High Court, there was no violation in case of exchange of the land as
is made by executing the document and the stamp duty as has been provided is paid as
per Article 31 of Schedule 1-B of Indian Stamp Act, 1899 which is duly registered.
 The proceedings are also barred by limitation.
Arguments against the Transfer of Land to non-Scheduled Tribe person:
 The Assistant Collector said that the exchange is violates section 161(1) of the U.P.
ZA & LR Act whereby a bhumidhar can exchange their land only with another
bhumidhar.
 The land falls under the category of “transferable land” which falls under the category
of “agricultural land” under section 3(14) of the U.P. ZA & LR Act. Thus there was
also a requirement of obtaining prior permission from the Assistant Collector.
 As per section 153-B, no bhumidhar shall have the right to transfer by way of sale,
gift, mortgage or lease or otherwise any land to any person not belonging to the
Scheduled Tribe. Thus there is a complete bar.
 Mere payment of stamp duty will not wipe down the statutory and mandatory bar
under sections 157-B and section 161 of the Act.
 Limitation will not be relevant in a void transfer made in contravention of the U.P.
ZA & LR Act.
Judgement:
 The transfer is void and is liable to be set aside. The land is liable to be vested in the
State Government.

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