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Prohibition from transfer by a person of Schedule Tribe is also applicable in case of 'exchange'; SC.

Supreme Court of India

Justice R Banumathi, Justice S Abdul Nazeer & Justice A S Bopanna

The SC {ADDITIONAL COMMISSIONER REVENUE AND OTHERS v. AKHALAQ HUSSAIN AND ANOTHER} holds that the High Court has ignored the provisions of U.P. ZA & LR Act and held that the provisions of Sections 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 and the document duly registered. It was held that the High Court erred in saying that Section 157-B of the Act does not bar making of exchange by a person of Scheduled Tribe because he is getting a land in exchange. It was held that there is clear bar under Section 157-B of the Act for transfer of land by a Scheduled Tribe even by way of exchange as the word “or otherwise” indicates. Further held that when there is a clear statutory provision barring the transfer, it was not open to the High Court to substitute its view in the place of that provision. Any such interpretation would defeat the benevolent object of the provisions of the U.P. ZA & LR Act and also the constitutional scheme providing for the social and economic empowerment of the Scheduled Tribes. It was held that the order of the High Court is contrary to the express provisions of U.P. ZA & LR Act and is also against the benevolent provisions of the Act and therefore the impugned judgment cannot be sustained.

It was held that the instant exchange being void since its inception, the transfer being void in terms of Section 166 of the Act, the consequences enshrined in Section 167 of the Act shall automatically follow.

In the present case, the HC vide impugned judgment dated 18.09.2008, 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. The said view & judgment was set aside by the SC and the appeal was allowed.

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