ADDITIONAL COMMISSIONER REVENUE Vs. AKHALAQ HUSSAIN

JUDGEMENT

(1.) This appeal arises out of the impugned judgment dated 18.09.2008 passed by the High Court of Uttarakhand at Nainital in Writ Petition No.670 of 2002 in and by which the High Court has set aside the orders of the Additional Commissioner (Revenue) dated 02.07.2002 and Additional Judicial Commissioner dated 30.06.2001 and also earlier order dated 19.07.2000 passed by the Assistant Collector/Pargana Magistrate.

(2.) Brief facts which led to filing of this appeal are as under:- Respondents Akhalaq Hussain and Saqir Hussain entered into an exchange with one Mangal Singh (a member of Scheduled Tribe) by way of a registered exchange deed dated 16.03.1994 whereby the respondents gave 4 1/2 Muthi of land, one Muthi is equal to 12.5 sq.mtrs. totalling 56.25 sq. mtrs., in village Khata No.36, Bandobast Khatuni Khata No.91 situated in village Vim Patti in District Pithoragarh in return for 12 Nali, one Nali is equal to 200 sq.mtrs. totalling 2400 sq.mtrs. of agricultural land in Bandobast Khatuni Khata No.43 situated in village Mall Ghorpatta, Munsiari, District Pithoragarh. Thereafter, mutation application was moved before the Tehsildar who vide order dated 25.04.1994 allowed the mutation on the basis of exchange under Section 161 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (for short "U.P. ZA & LR Act"). The respondents claim that they have constructed a hotel on the land obtained in exchange and the said hotel is being run in the name and style of "Zara Resort".

(3.) On 19.07.2000, the Pargana Magistrate/Assistant Collector issued an order under Section 167 of the U.P. ZA & LR Act stating that the parties to the aforementioned exchange have violated the provisions of sub-section (1) of Section 161 of U.P. ZA & LR Act while getting the registration done. It was held that according to the provisions, a bhumidhar can only exchange his land with another bhumidhar after he obtains prior permission from the Assistant Collector. But in the instant case, no prior permission has been obtained from the Assistant Collector. Exchange deed has been made in contravention of the provisions of the U.P. ZA & LR Act and hence void. According to the provisions of sub-section 1 (a) of Section 167 of U.P. ZA & LR Act, the land admeasuring 12 Nali under Khata No.43 stands vested in the Government of Uttar Pradesh from the date of its transfer. The respondents were ordered to remove all their movable/immovable properties existing on the land within thirty days.