Shanti Devi And 2 Others vs State Of U.P. And 3 Others
2018 Latest Caselaw 2931 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.37
 

 
Case :- WRIT - C No. - 15483 of 2018
 

 
Petitioner :- Shanti Devi And 2 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Prem Prakash
 
Counsel for Respondent :- C.S.C.,Ram Babu Yadav
 

 
Hon'ble Siddhartha Varma, J.

This case has been filed against orders by which the Pattas of Hari Charan, predecessor in interest of the petitioners were sought to be cancelled.

Brief facts of the case are that Hari Charan was granted a Patta in the year 1962 of Plot No.22, 33Ka, 34Ka and 35Ka situate in village Rahkalan, Pargana Kantit, Tehsil Madihan, District Mirzapur and had got the status of Bhumidhar with non-transferable rights. Hari Charan with an intention to sell the property, on 21.9.1973 deposited an amount equivalent to 20 times the rent payable on the plots in question and became a Bhumidhar with transferable rights. Thereafter on 21.9.1973 itself, Hari Charan executed a sale deed in favour of Vansh Narayan and Ram Dular sons of Har Govind and one Awadh Narayan son of Ram Raj. Ram Dular son of Har Govind, who had, after the sale deed, become an owner sold, in his turn, his share to Raj Mani Yadav son of Jhaggad. Awadh Narayan son of Ram Raj sold his 1/3rd share to one Ram Jiyawan. Raj Mani Yadav and Ram Jiyawan jointly sold their properties, which they had bought from Hari Charan, to Biggad, the predecessor in interest of petitioner no.3. Hari Charan had sold the property to Vansh Narain (through whom the petitioner nos.1 and 2 claim). Thereafter, in the year 1997, proceedings under section 198(4) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act') was sought to be initiated against Hari Charan, the initial tenure-holder, saying that while he was a Bhumidhar with non-transferable rights, he had sold the property and, therefore, the Pattas had to be cancelled and the land had to vest in the Gaon Sabha. When notices were issued to Hari Charan, a report was sent that he was no longer living in the village. This forced the petitioners to file an Impleadment Application and to file an objection to the proceedings which were initiated under section 198(4) of the Act. In the proceedings, the petitioners objected that since the sale deeds were executed by Hari Charan after he had deposited 20 times of the land revenue payable on the land in question and had become a Bhumidhar with transferable rights and, therefore, there was nothing wrong in the transfer which the Hari Charan had made.

The Chief Revenue Officer on 27.9.2008, cancelled the pattas which were granted to Hari Charan and vested the land in question in the Gaon Sabha. The petitioner nos.1 and 2 filed a Revision wherein they very categorically stated that the Chief Revenue Officer had no authority to cancel the pattas as the Collector alone could have done so. They further submitted that as per section 137 of the Act, which was prevailing at the time when the sale deed had been executed, the seller of the property who had sold the land to the petitioners had become a Bhumidhar with transferable rights, the moment he had deposited 20 times of the rent. The petitioners further, in the revision, submitted that before the Chief Revenue Officer they were not allowed to file any document else they would have submitted their documents and evidence. Had the opportunity been granted, they would have definitely filed the Bhumidhari Sanad which was there in favour of their seller Hari Charan and if the Sanad was looked into, it would have been clear that though it was given by the Assistant Collector on 13.12.1973, it had to date back to the date when the amount equivalent to 20 times of the rent was deposited. Both the Courts below, however, rejected the claim of the petitioners and stated that the petitioners had not filed any document which would have gone to prove that 20 times rent payable on the land which was sold was actually deposited and, therefore, both the Courts below held that since the vendor of the petitioners was a Bhumidhar with non-transferable rights, the transfer effected in favour of the predecessors in interest of the petitioners was illegal and void and, therefore, held that the land had to vest in the Gaon Sabha. Aggrieved by the two orders, the petitioners had filed the instant writ petition.

Learned counsel for the petitioners very vehemently stated that when the vendor of the predecessors in interest had on 20.1.1973 deposited 20 times rent then he had become a Bhumidhar with transferable rights and, therefore, the sale deeds as were executed by him were absolutely valid. Learned counsel for the petitioners further submitted that when the impleadment application of the petitioners was allowed, then the Chief Revenue Officer ought to have given them an opportunity to submit their documents/evidence to prove that there was a Bhumidhari Sanad actually in existence which went to show that Hari Charan, the vendor was a Bhumidhar with transferable rights ever since 20.1.1973, the day he had deposited 20 times rent.

Learned counsel for the petitioners has submitted that as per the provisions of sections 134 and 137 of the Act, which were there in existence in the year 1973, the deposit of 20 times rent itself made the Bhumidhar with non-transferable rights, a Bhumidhar with transferable rights. In this regard, he also relied upon a decision of the Supreme Court in Deo Nandan Vs. Ram Saran reported in 2000 (3) SCC 440 and submitted that the grant of certificate was not essential. What was essential was the deposit of the 20 times of rent. He submitted that the certificate which was granted itself said that the Bhumidhar with non-transferable rights had become a Bhumidhar with transferable rights on the date when the 20 times rent was deposited.

Since learned counsel for the petitioners read out paragraphs 8 and 9 of the judgment of the Supreme Court in Deo Nandan (supra), the same is being reproduced here as under :

"8. Whatever little doubt there may be in this construction of Section 134 is eliminated by the perusal of sub-section (2) of Section 137. It is to be noticed that, as observed by the lower appellate Court, that before amendment in 1962, sub-section (2) of Section 137 of the Act provided that it is only upon the grant of certificate under sub-section (1) of Section 137 that the sirdar shall from the date thereof become or be deemed to be a bhumidar of the holding or the share in respect of which the certificate has been granted. The amendment of sub-section (2) of Section 137 by the Amendment Act 21 of 1962 with effect from 13th December, 1962 brought Section 137(2) in line with Section 134. The two provisions read together clearly provide that as and when the certificate under Section 137 is granted, it must relate back and be effective from the date on which the amount referred to in sub-section (1) of Section 134 has been deposited.

9. It is no doubt true that In the Full Bench decision in Banshidhar v. Smt. Dhirajadhari (AIR 1971 All. 526 : 1971 All. LJ 937) (supra) in the single Judge decision in Mobin Khan v. Chunnu Khan (1981 All LJ 402) (supra) and in the decision in Raghunandan Singh v. Yashwant Singh, 1978 Rev Dec 183 : (1978 All LJ 435) a different view has been expressed by the Allahabad High Court. In the Full Bench decision, the view taken is that it is from the date when the order is passed under Section 137 that the sirdar becomes a bhumidar. In the latter two cases, it has been held that if after filing of the application and making payment of the land revenue the applicant dies, then certificate in his name cannot be granted. In our opinion, the said decisions run counter to the plain language and meaning of Sections 134 and 137 as they stood at the relevant point of time. When a certificate is issued under Section 137 it in fact recognises the position as on the date when the application was made and the payment contemplated under Section 134(1) was deposited. The certificate, in other words, will have a retrospective effect and would relate back to the date of the application. There was nothing to prevent the revenue authorities from allowing the application filed under Section 134(1) on the day when it was presented. The underlying intention of the legislature, therefore, clearly is that as and when the said application is accepted and order is passed under Section 137 it must relate back to the date when the application was filed. Such a situation is not unknown to law. Mr. Prem Prasad Juneja, learned counsel for the appellants, as an analogy, has drawn our attention to Order 22 Rule 6, C.P.C. which provides that if any of the parties to a suit dies after the hearing has been completed and before the judgment is pronounced, the suit would not abate. The doctrine of relation back has been incorporated in Sections 134 and 137 of the U.P. Zamindari Abolition and Land Reforms Act."

Learned counsel relying on the judgment submitted that since the Hon'ble Supreme Court was also of the view that the depositing of the 20 times rent alone was important and not the grant of the certificate, the vendor of the predecessor in interest of the petitioners was a Bhumidhar with transferable rights on the day he had executed the sale deeds and had the two Courts below allowed the petitioners to file their evidence, then they would have definitely established that Hari Charan, the vendor of the property, was a Bhumidhar with transferable rights. Since the petitioners were not allowed to file the evidence, which were there in their possession, it could not be said that the petitioners had not filed any proof of the fact that Hari Charan was a Bhumidhar with transferable rights.

Learned Standing Counsel and the counsel for the Gaon Sabha, however, submitted that since the petitioners had not filed the Bhumidhari Sanad before the Courts below, the Courts below had no other option but to hold that the vendor Hari Charan was a Bhumidhar with non-transferable rights.

Having heard learned counsel for the parties, I am of the view that when a Bhumidhar with non-transferable rights deposits 20 times rent, as per section 134 of the Act as was prevalent in the year 1973, he became a Bhumidhar with transferable rights. The grant of certificate was only a proof of the fact that the deposit had been made. Even if the certificate was granted after some time, it related back to the date when the amount was deposited. In the instant case, when the two Courts had not allowed the petitioners to file the evidence which went to prove that the vendor Hari Charan was a Bhumidhar with transferable rights, the order dated 27.9.2008 passed by the Chief Revenue Officer, Mirzapur and the order dated 28.3.2018 passed by the Additional Commissioner (Administration), Mirzapur cannot be sustained. Hence, they are quashed.

The writ petition is, accordingly, allowed.

Date: 28.09.2018

GS

(Siddhartha Varma, J.)