HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. 6 Writ Petition No. 40159 of 1992 [Group-B] Samma ... Petitioner Versus Board of Revenue,U.P. Allahabad and others ... Opposite parties ------------- Hon'ble Rajiv Sharma,J.
Heard Counsel for the parties.
In brief, the facts of the case are that the petitioner was granted 'Patta' of the land in dispute by the Goan Sabha and as such he came into possession over the said land. After considerable long lapse of time, the Lekhpal of the area made a report against the petitioner for his ejectment from the land on the ground that Samma Singh-petitioner has tress-passed the land. Therefore, the petitioner preferred a suit for declaration that he was 'Sirdar' of the land in dispute. The suit was contested by the Goan Sabha alleging therein that the the property belongs to Gaon Sabha and the petitioner was a tress-passer over it since 15.10.1970. The Land Management Committee had not executed the Patta of the land in suit in favour of the petitioner. Ultimately, this suit was dismissed by the Trial Court vide order dated 17.9.1974.
Feeling aggrieved by the aforesaid order, the petitioner preferred an appeal no. 6 of 1974-75 in the Court of Commissioner, Meerut Division, Meerut, which was dismissed vide order dated 5.2.1975. Consequently, petitioner preferred Second Appeal No. 121(z) of 1975-76 before the Board of Revenue, Allahabad, but this also met with the same fate.
Counsel for the petitioner has vehemently argued that courts below failed to consider that Rule 138 of U.P.ZA & LR Act is not mandatory and is not applicable in the present case so the finding recorded by it that the leases are not valid due to non-compliance of the provisions of Rules 138 of U.P. Zamindari Abolition & Land Reforms Act are perverse.
It has next been contended that the leases or certificates, whatever, it may be, it was not for any period but the resolution shows that in the beginning land was settled with the petitioner for a year which neither required registration nor verification in view of Section 158 of the Act. The Board of Revenue also committed an error in ignoring the provisions of Section 159 of the Act, which provides that no lease would be void on account of non-compliance of Section 158 of the Act.
On behalf of the Goan Sabha a counter affidavit has been filed wherein it has been mentioned that the orders passed by the courts below are perfectly justified and there is no infirmity. Further, the petitioner is not entitled to the benefit of Section 122-B(4-F) of the Act, as he is not a landless person.
A perusal of the impugned orders shows that the Assistant Collector Ist Class, Muzaffarnagar, dismissed the suit on the ground that the 'Pattas' are invalid for want of attestation and are of no help to establish the claim of the petitioner. Period of limitation has also not been perfected by the petitioner to enable him to claim Sirdari rights by way of adverse possession.
Rule 138 of the ZA & LR Rules, which is relevant, in the present context reads as under:-
"(1) All leases of land made under Section 157, annual rent of which exceeds Rs. 100, shall be executed by registered instrument.
(2) Leases of land the rent of which is Rs. 100 or lease may be attested by any revenue court or a revenue officer not inferior in rank to a Supervisor Kannnungo within the local limits of whose jurisdiction the whole or some portion of the land to which such lease or counterpart relates, is situate."
Rule 138 provides that all leases of land made under Section 157 of the Act, annual rent of which exceeds Rs. 100/- shall be executed by registered instrument. Sub Rule 2 stated that leases of land, the rent of which is Rs. 100/- or less may be attested by any revenue court or a Revenue Officer not inferior to the rank to a Sadar Kanoongo. It may be noted that the word "May" merely connotes an enabling or permissive power in th sense of the usual phrase. Similarly, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every shall it shall have that effect. Ordinarily, where the word "May" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid.
It may be pointed out that the word "Shall" has been used in sub-rule (1) while word "may" has been used in sub-rule (2). None of these rules says that an instrument which could have been valid if attested by revenue officer, would become invalid in the absence of such attestation. Therefore, sub-rule 2 is not mandatory and as such one can reach to a reasonable conclusion that the lease cannot be held to be invalid for want of verification. In Onkar Nath vs. Consolidation Officer, Baraigarh, Kanpur 1964 RD 370 it has been held that the aforesaid rule is only directory and not mandatory and their breach cannot entail and invalidity on that ground in case of a document which has been properly executed and registered.
At this juncture it would also be relevant to point out that Rule 177 (1) provides that a certificate of admissions to land under Section 195 to 197 may be attested by any Revenue Officer not below the rank of a Supervisor Kannongo. Here also, the word "may" has been used. Both in Rule 138 as well as in Rule 177 the registration of the instrument of lease in respect of land yielding a rent of more than Rs. 100/- has been made compulsory while the attestation of any such instrument in respect of land fetching a rent below Rs. 100/- by any revenue court of revenue officer is optional. The provision of such instruments being attested by revenue officers as provided under the aforesaid rule is only directory and not mandatory.
For the reasons aforesaid, I am of the considered opinion that the courts below erred in law in holding that because the lease was not verified by the officer concerned, they were invalid and could not confer any rights on the petitioner.
After hearing the learned Counsel for the parties and perusing the impugned orders, for reasons discussed above, the impugned orders dated 17.9.1974. 5.2.1975 and 27.8.1992 contained in Annexures 1,2 and 3 respectively to the writ petition are hereby quashed.
The writ petition is allowed. Costs easy.
31.3.2011 lakshman/