Respondents Akhalaq Hussain and Saqir Hussain exchanged their 4.5 Muthi of Land (situated in village khatta no. 36, bandobast khatuni khatta no. 91 situated in village Vim Patti in District Pithoragarh) in return of 12 Nali of agricultural land belonging to Mangal Singh who is a member of Schedule Tribe (Bandobast Khatunikhatta no. 43 situated in village Mall Ghorpatta, Munisiari, in District Pithoragarh). On 19/07/2000, the Pargana Magistrate/ Assistant Collector issued an order under section 167 of the UP ZA & LR Act, stating that parties to the exchange have violated the provisions of section 161(2) of UP ZA & LRAct as they did not take the prior permission from the Assistant Collector.Then on 30/06/2001, in an appeal filed by the respondent against the order madeon 19/07/2000, Additional Commissioner Kumaon Zone, Nainital held that Mangal Singh is a person belonging to ST whereas, the respondents are non Scheduled Tribes and the transfer of land belonging to STs is prohibited under the provisions of Section 157-B of UP ZA & LR Act. The respondent there after filed a revision petition before the Additional Revenue Commissioner who video order dated 02/07/2002 dismissed the petition as being without merits. A writ petition was then filed in the HC by the petitioner against the order dated 119/07/2000, 30/06/2001, and 02/07/2002. HC was of the opinion that the authorities have committed error of law in holding that the permission u/s 161 was necessary to be obtained and allowed the appeal. Now appeal has been filed with the apex court stating that HC has exceeded its power and jurisdiction under Article 227 of the constitution in setting aside the above orders.

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1. Whether the exchange deed dated 16/03/1994 is in contravention of the provisions of U.P. ZA & LR Act in view of complete bar for the transfer of land by a member of Scheduled Tribe under section 157-B of the UP ZA & LR Act?

2.      Whether the HC was right in saying that permission required under section 161 of the UP ZA & LR Act is not a requisite condition for the exchange of land?

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The HC has ignored the provisions of UP ZA & LR Act and held that the provisions of section 161 and 157 B of the act do not apply in case of exchange of land which has been made by executing a document where the stamp duty has been paid as per Indian Stamp Act. The HC is erroneous in saying so, as when there is a clear statutory provision barring the transfer, any such interpretation would defeat the benevolent object of the provisions of U.P. ZA & LR Act and also the constitutional scheme providing for the social and economic empowerment of the STs.

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Appeal is allowed and the impugned judgment of HC is set aside.