Gangadeen vs State Of U.P. & 4 Others
2017 Latest Caselaw 6064 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 07
 

 
Case :- WRIT - C No. - 50041 of 2017
 

 
Petitioner :- Gangadeen
 
Respondent :- State Of U.P. & 4 Others
 
Counsel for Petitioner :- Rahul Mishra,Brajesh Nath Rai
 
Counsel for Respondent :- C.S.C.,Anuj Kumar
 

 

 
Hon'ble Surya Prakash Kesarwani,J.

Heard Sri Rahul Mishra, learned counsel for the petitioner and Sri Abhishek Shukla, learned Standing Counsel for the State-Respondents.

Briefly stated facts of the present case are that undisputedly the petitioner was granted a lease as Asami by the Assistant Collector of the Tehsil concerned on 07.12.1993. His name was entered in the khatauni as Assami which continued in khatauni till the year 1411-1416 Fasli. There is no dispute that the petitioner remained in possession of the Khasra Plot No.233 measuring 0.216 hectares and Khasra Plot No.256-ka measuring 0.136 hectares, total area 0.352 hectares of village Kaimaha, Pargana, Tehsil and District Mahoba, in respect of which the aforesaid lease was granted to him. He was also paying revenue to the Government amounting to Rs.3.35. His lease was cancelled by the respondent No.3 vide order dated 28.11.2008 on the ground that in view of the provisions of Section 176A(2) of the U.P.Z.A. & L.R. Act, 1950, the period of lease granted to an Asami cannot exceed five years. The Revision No.132/72 of 2008-09 filed by the petitioner was dismissed by the Additional Commissioner (I), Chitrakoot Dham Division, Banda by order dated 19.02.2010. Aggrieved with these two orders, petitioner has filed the present writ petition.

Learned counsel for the petitioner submits that in evidence, the petitioner has filed Kisan Bahi, Agenda dated 14.04.1990, Munadi dated 21.04.1990, Z.A. Form 58 and a copy of proceeding dated 21.04.1990 to establish that he is Asankramniya bhumidhar of the leased land. In oral evidence, he produced the then Village Pradhan of the Village. The respondent No.3 called for the original record of the lease allotment and recorded a finding that lease was granted to the petitioner as Asami and, therefore, its term cannot exceed beyond five years. Consequently, he directed the name of the petitioner to be struck off from the Khatauni of 1411-1416 Fasli from Khatauni Khata No.689.

It is the case of the petitioner that he is still continuing in possession of the disputed land which is the only source of his livelihood. The contention of the petitioner has also been noted by the respondent No.3 in the impugned order dated 28.11.2008 that the disputed land is the only land held by the petitioner which is not the land covered by Section 132 of U.P.Z.A. & L.R. Act. This contention of the petitioner has neither been rejected nor any adverse observation has been made either by the respondent No.3 or by the respondent No.2 in the impugned orders. Thus, from the record, it appears that the petitioner is dependent upon the disputed land, which is stated to be in his possession.

The provisions of the U.P.Z.A. & L.R. Act, 1950 have been repealed by the U.P. Revenue Code, 2006. Section 76(1)(dd) of the Code is relevant for the purposes of controversy involved in the writ petition, which is reproduced below:

"76. Bhumidhar with non-transferable rights.- (1) Every person belonging to any of the following classes shall be called a bhumidhar with non-transferable rights and shall have all the rights and be subject to all the liabilities conferred or imposed upon such bhumidhar by or under this Code, namely:-

(a) every person who was a bhumidhar with non-transferable rights immediately before the date of commencement of this Code;

(b) every person who is admitted as a bhumidhar with non-transferable rights on or after the said date by the Bhumi Prabandhak Samiti to any land under or in accordance with the provisions of this Code;

(c) every person who is allotted any land on or after the said date under the provisions of the Uttar Pradesh Bhoodan Yajna Act, 1952;

(d) every person who is allotted any land on or after the said date under the provisions of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960;

(dd) every person who was an asami in possession of land not covered by section 77 of this Code, immediately before the date of the commencement of this Code and had been recorded as such in class-3 of the annual register (khatauni) of 1407 Fasli:

Provided that where the land in possession of a person, together with any other land, held by him in Uttar Pradesh exceeds the ceiling area determined under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, the rights of a Bhumidhar with non-transferable rights shall accrue in favour of such person in respect of so much area of the first mentioned land, as together with such other land held by him, does not exceed the ceiling area applicable to him, and the said area shall be demarcated in the prescribed manner in accordance with the principles laid down in the aforesaid Act;

(e) every person who in any other manner acquires on or after the said date, the rights of such a bhumidhar under or in accordance with the provisions of this Code, or any other law for the time being in force.

(2) Every person who was a bhumidhar with non-transferable rights immediately before the commencement of this Code and had been such bhumidhar for a period of five years or more, shall become bhumidhar with transferable rights on such commencement.

(3) Every person who was a bhumidhar with non-transferable rights on the commencement referred to in sub-sections (1) and (2) or becomes bhumidhar with non-transferable rights after such commencement shall become bhumidhar with transferable rights after expiry of five years from his becoming bhumidhar with non-transferable rights.

(4) Notwithstanding anything contained in any other provisions of this Code, if any person transfers land by sale after becoming bhumidhar with transferable rights under sub-section (2) or sub-section (3), he shall not be eligible for lease of any land vested in the Gram Panchayat or the State Government or the surplus land defined in the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960."

As per clause (dd) of Sub-section (1) of the Section 76, every person who was an asami in possession of land not covered by section 77 of the Code, immediately before the date of the commencement of the Code and had been recorded as such in class-3 of the annual register (khatauni) of 1407 Fasli shall be called a bhumidhar with non-transferable rights and shall have all the rights and be subject to all the liabilities conferred or imposed upon such bhumidhar by or under the Code. The land in question is not covered by Section 77 of the Code. Undisputedly, the name of the petitioner was continued to be recorded in the annual register (khatauni) till 1411 to 1416 Fasli. Thus, it is undisputed that the name of the petitioner was recorded in class-3 in the annual register (khatauni) of 1407 Fasli and, therefore, the petitioner is entitled to the benefit conferred under clause (dd) of Sub-section (1) of the Section 76 of the Code. Therefore, both the impugned orders deserve to be quashed and the case of the petitioner deserves to be considered in the light of the provisions as afore-quoted.

In view of the aforesaid, the impugned order dated 28.11.2008 passed by the respondent No.3 and the order dated 19.02.2010 passed by the respondent No.2 in Revision No.132/72 of 2008-09 in respect of the disputed land, is hereby quashed. The matter is remitted back to the respondent No.3, who shall decide the case of the petitioner afresh in the light of the observations made above.

The writ petition stands allowed to the extent indicated above.

Order Date :- 31.10.2017

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