Habiburrehman & 3 Ors. vs Board Of Revenue U.P.Allahabad & 4 ...
2019 Latest Caselaw 533 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 4							            A.F.R.
 

 
Case :- MISC. SINGLE No. - 8880 of 2017
 
Petitioner :- Habiburrehman & 3 Ors.
 
Respondent :- Board Of Revenue U.P.Allahabad & 4 Ors.
 
Counsel for Petitioner :- Abdul Razzaque Khan,Aasif Razzaque Khan
 
Counsel for Respondent :- C.S.C,Sriniwas Bajpai,Yogendra Nath Yadav
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard learned counsel for the petitioner, learned State Counsel, Shri Yogendra Nath Yadav, learned counsel representing the Land Management Committee concerned and Shri Sriniwas Bajpai, learned counsel representing the respondent no.5.

Since no factual dispute at this stage in these proceedings is involved, I do not find any reason to permit the respondent no.5 to file any counter affidavit.

Under challenge in this petition is an order dated 04.01.2014 passed by the Sub Divisional Officer, Sitapur whereby the application moved by the petitioner under section 144 of U.P.Z.A. & L.R. Act (hereinafter referred to as "the Act") seeking a declaration that the land in question is being utilized for agricultural purposes, has been rejected. The petitioner challenged the said order dated 04.01.2014 passed by the Sub Divisional Officer by preferring an appeal under section 331(3) of the Act before the Collector, who too, vide his order dated 19.09.2014 has dismissed the appeal. The orders dated 04.01.2014 and 19.09.2014 passed by the Sub Divisional Officer and the Collector respectively were subjected to the revisional jurisdiction of the Board of Revenue under section 333 of the Act which has also been dismissed by the Board of Revenue vide its order dated 13.02.2017. Apart from the order dated 04.01.2014 passed by the Sub Divisional Officer, the petitioner has also challenged the orders dated 19.09.2014 and 13.02.2017 passed by the Collector and Board of Revenue respectively.

The petitioner moved an application under section 144 of the Act seeking a declaration that the land in question is being used for agricultural purposes. However, since the recorded tenure holder, namely, respondent no.5 was not impleaded as a party and as such in the proceedings instituted by the petitioner under section 144 of the Act an application was moved under Order 1 Rule 10 of the Code of Civil Procedure with the prayer that the respondent no.5 may also be permitted to be impleaded in the said proceedings.

The Sub Divisional Officer instead of considering the matter and the prayer of the petitioner has rejected the said application only on the ground that since the petitioner is not owner or recorded tenure holder of the land in question, as such the proceedings under section 144 of the Act be permitted to be continued at his behest. The view taken by the Sub Divisional Officer has been maintained by the appellate court as also by the revisional court which are completely erroneous for the reasons which are to follow.

In my considered opinion, the reasons recorded by the courts below for not entertaining the application moved by the petitioner under section 144 of the Act are absolutely erroneous and, in fact, run contrary to what has been provided under section 144 of the Act and Rule 135-A of U.P.Z.A. & L.R. Rules, 1952. Section 144 of the Act is extracted herein below:

"144. Use of land for agricultural purposes. - (1) Whenever any land held by a bhumidhar which is not used for the purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, has become land used for such purposes, the[Assistant Collector-in-charge of the sub-division may suo motu or on an application, after making such enquiry as may be prescribed], make a declaration to that effect and thereupon the bhumidhar shall, as respects the land, be subject to the provisions of this chapter.

(2) Upon the grant of the declaration under sub-section (1) in respect of any land any person other than the bhumidhar in possession of the plot shall-

(a) if he holds it under any contract or lease which is inconsistent with any of the provisions of this chapter, be deemed to be an occupant liable to ejectment under Section 209; and

(b) if he holds it under any contract or lease which is not inconsistent with any of the provisions of this chapter, be entitled to the rights in the land determined in accordance with the provisions thereof.

(3) Any contract or lease referred to in sub-clause (a) of sub-section (2) which is inconsistent with the provisions of the chapter shall, to the extent of the inconsistency, become void with effect from the date of declaration:

Provided that any mortgage with possession existing on any such land shall, to the extent of the amount due and secured on such land, be deemed to have been substituted by a simple mortgage carrying such rate of interest as may be prescribed."

It would be relevant to extract Rule 135-A of U.P.Z.A. & L.R. Rules (hereinafter referred to as "the Rules) as well, which runs as under:

"135-A. (1) On an application made by bhumidhar under section 144 or on facts coming to his notice otherwise, the Assistant Collector in-charge of the Sub-Division may get enquiries made by an officer not below the rank of Supervisor Kanungo. After considering the enquiryreport submitted through the Tahsildar and the objection of the bhumidhar, if any, he shall, on being satisfied that the land in respect of which a declaration under section 143 was made has now become land used for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultryfarming, make a declaration to that effect and order the khatauni to be corrected accordingly.

(2) Under the proviso to sub-section (3) of section 144, the rate of interest shall be 2.5 percent per annum."

For appropriate appreciation of the issue involved in this case, it is also apt to refer to section 143 of the Act which is extracted herein below:

"143. Use of holding for industrial or residential purposes. - [(1) Where a [bhumidhar with transferable rights] uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector-in-charge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect.

(1-A) Where a declaration under sub-section (1) has to be made in respect of a part of the holding the Assistant Collector-in-charge of the sub-divisions may in the manner prescribed demarcate such part for the purposes of such declaration.]

(2) Upon the grant of the declaration mentioned in sub-section (1) the provisions of this chapter (other than this section) shall cease to apply to the [bhumidhar with transferable rights] with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.

[(3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provisions of this Chapter (other than this section) shall cease to apply to such bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.]"

From a perusal of the aforequoted provisions, it is clear that where a bhumidhar with transferable rights uses his holding for a purpose not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming, the Sub Divisional Officer either suo motu or on an application, can make a declaration to that effect, of course after making such an enquiry as may be prescribed. The enquiry for the purposes of section 143 of the Act has been prescribed under Rule 135 of the Rules. Thus, the provisions contained in section 143 of the Act can be put to service either suo motu by the Sub Divisional Officer or an application to be made in this regard for the purposes of declaration of a holding which is not in use for agricultural purposes.

Section 144 of the Act, however, provides for a declaration of such a holding which is in use for agricultural purposes, according to which if any land held by a bhumidhar which is not used for the purposes connected with agricultural and allied purposes and it becomes a land used for such purposes i.e. agricultural purposes, the Sub Divisional Officer will make a declaration suo motu or on an application, after making such enquiry as may be prescribed. The enquiry referred to in section 144 of the Act has been prescribed under Rule 135-A of the Rules which also specifically provides that the Sub Divisional Officer can make a declaration of some land being in use for agricultural purposes either suo motu or on an application. Thus neither section 144 of the Act nor Rule 135-A of the Rules anywhere prescribes that such a declaration can be made only on an application to be made by the tenure holder or bhumidhar or owner of the land. If it comes to the notice of the Sub Divisional Officer that any land is being used for agricultural purposes he can make a declaration to that effect. However, the mode of such information coming to the notice of the Sub Divisional Officer is not relevant at all as he can exercise such power under section 144 of the Act suo motu or on an application made to him. Section 144 of the Act/Rule 135-A of the Rules does not anywhere specify that such an application is to be necessarily moved by the bhumidhar/owner of the land. In the aforesaid view of the matter, the reason indicated by the Sub Divisional Officer while passing the impugned order, which has been reiterated by the appellate court as also by the revisional court, are not sustainable at all.

The provisions contained in section 82 of the U.P. Revenue Code, 2006 (herein after referred to as "the Code") is also relevant to be taken note of, which is extracted herein below:

"82. Cancellation of declaration.- (1) Whenever any holding or part thereof in respect of which a declaration has been made under section 80 is used for any purpose connected with agriculture, the Sub-Divisional Officer may, of his own motion or on an application made in that behalf and after making such inquiry as may be prescribed, cancel such declaration.

(2) where a declaration is cancelled under sub-section (1) the following consequences shall, in respect of the holding or part to which it relates ensue namely:

(a) the holding or part shall become subject to all restrictions imposed by or under this chapter in matters of transfer and devolution;

(b) the holding or part shall become liable to payment of land revenue with effect from the commencement of the agriculture year in which the order for cancellation of the declaration is made:

Provided that until any land revenue is reassessed on such holding or part in accordance with the provisions of this Code, the land revenue payable or deemed to be payable in respect of such holding or part before the grant of declaration under section 80 shall be deemed to be the land revenue payable in respect of such holding or part,

(c) where the land is in possession of any person other than the bhumidhar thereof on the basis of a contract or lease, and the terms of such contract or lease are inconsistent with the provisions of this Code, such contract or lease shall, to the extent of the inconsistency, become void and the person in possession shall be liable to ejectment on the suit of the bhumidhar:

Provided that a mortgage with possession existing on the date of the cancellation of the declaration shall, to the extent of the amount due and secured on such land, be deemed to be substituted by a simple mortgage carrying such rates of interest as may be prescribed."

Section 82 of the Code provides that the Sub Divisional Officer either of his own motion or on an application made in that behalf can make a declaration that particular land is being used for a purpose connected with agricultural where a declaration was earlier made under section 80 of the Act. Section 82 of the Code as well does not specify that the Sub Divisional Officer shall take action or proceed in terms of section 82 of the Code only if an application in that regard is made by the owner/bhumidhar/recorded tenure holder of the land in question.

For the reasons disclosed above, the writ petition deserves to be allowed. Resultantly, the petition is allowed and the orders dated 04.01.2014, 19.09.2014 and 13.02.2019 passed by the Sub Divisional Officer, Collector and Board of Revenue, which have been annexed as annexure nos.3, 2 and 1 respectively to the writ petition, are hereby quashed.

The matter is remitted to the Sub Divisional Officer concerned, who shall decide the application preferred by the petitioner under section 144 of the Act afresh in accordance with law, specially taking into account the provisions contained in section 144 of the Act and Rule 135-A of the Rules. It is further provided that in the proceedings to be instituted on the application preferred by the petitioner under section 144 of the Act, respondent no.5 shall also be impleaded as a respondent, who shall also have ample and adequate opportunity of hearing and putting forth his case and leading evidence. The proceedings of the application shall be expedited and concluded by the Sub Divisional Officer within a period of three months from the date of production of certified copy of this order.

Since the parties to the proceedings which would be drawn under this order by the Sub Divisional Officer under section 144 of the Act are represented here by their respective learned counsel, the Court directs that the parties shall be present before the Sub Divisional Officer on 14.03.2019 and will submit certified copy of this order. It is clarified that no further notice shall be required to be served upon the parties by the Sub Divisional Officer.

It is also directed that the parties to these proceedings shall not seek any unnecessary adjournments and adjournment, if prayed for, shall be permissible to be granted by the Sub Divisional Officer only in exceptional circumstances.

In the facts of the case, there will be no order as to cost.

Order Date :- 6.3.2019

akhilesh/