Uttarakhand High Court
Virendra Singh vs Satveer Singh And Others on 26 February, 2020
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 483 of 2020
Virendra Singh ...Petitioner
Vs.
Satveer Singh and Others ...Respondents
Present: Mr. Aditya Pratap Singh, Advocate for the petitioner
Ms. Reema Rana, Advocate holding brief of Mr. Parikshit Saini,
Advocate for the respondents.
Hon'ble Sharad Kumar Sharma, J.
The factual backdrop of the present case is; that the respondent No. 1, happens to be a plaintiff in a Suit, which was instituted by him by invoking the provisions contained under Section 176 of the UPZA & LR Act, seeking partition of holdings, which was the subject matter of the proceedings of the Suit, filed on 24.03.2015, under Section 176 of the UPZA & LR Act, which was registered as Suit No. 21 of 2014-15, Satvir Singh v. Jasvir and others, before the Court of Assistant Collector, First Class, Roorkee, District Haridwar.
2. The property, which constituted to be taken into consideration for the aforesaid Suit for partition was described in the relief clause and at the foot of the plaint which constituted as hereunder:-
**[kkrk la- 285 [kljk uEcj 310@1 jdcbZ 0-0510 gS0] 310 fe@4 jdcbZ 0-0410 gS0] 312@1 jdcbZ 0-0820 gS0] 313 jdcbZ 0-3890 gS0] 314@1 jdcbZ 0-2250 gS0] 315 jdcbZ 0-1840 gS0] 312@2 jdcbZ 0- 1540 gS0 dqy jdcbZ 1-126 gSDVs;j yxkuh 41 :i;s 60 iSls okf'kZd esa oknh dk 1@6 Hkkx o izfroknh la0 1 dk 1@6 Hkkx o izfroknhx.k la0 2 o 3 dk 1@6 Hkkx o izfroknhx.k la0 4 rk 8 dk 1@2 Hkkx fLFkr xzke :M+dh vUnj gnwn ijxuk o rglhy :M+dh ftyk gfj}kjA**
3. In the said Suit, the pleadings were exchanged and thereafter, on the exchange of pleadings the Court of Assistant Collector, who was ceased with the proceedings, had framed an issue being issue No. 6 to the following effect:-
**D;k fookfnr Hkwfe esa vkcknh gksus ds dkj.k okn pyus ;ksX; ugha gS\** 2
4. In a nutshell, if the said issue is taken into consideration in its totality, it was to the effect that as to whether since the land in dispute, which was the subject matter of the proceedings of the Suit filed under Section 176 of the UPZA & LR Act, whether the Suit itself would be maintainable. The said issue was considered and decided by the Court of Assistant Collector First Class by an order dated 13th June 2018, and prior to taking a decision on the said aspect, as to whether there exists any Abadi or not and what impact would it have on the proceedings under Section 176 of the UPZA & LR Act, the Court of Assistant Collector has called upon for a report from the Tehsildar prior to its decision dated 13.06.2018, which was submitted by him on 4th April 2018, as well as that of Lekhpal which was too submitted by him on 3rd April 2018, and thereafter, as per the report extended, it was observed by the Court of Assistant Collector while deciding issue No. 6 that out of total property, which was the subject matter of partition Suit, a very negligible part of it was used for Abadi purpose.
5. These reports is in itself has been extracted by the present petitioner, who is the defendant No. 4 in the proceedings in the Suit under Section 176 of UPZA & LR Act to be creating a bar with regards to the maintainability of the Suit itself on the ground that in view of the said report, his case is that the land in question, which was the subject matter of the proceedings under Section 176 of the Act, would be taking out the land in dispute out of the definition of land, as defined under Section 3 of sub Section (14) of the UPZA & LR Act, which is quoted hereunder:-
"3(14) "Land" means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming."
6. This issue No. 6 when it had already been decided vide order dated 13.06.2018, based upon the aforesaid two reports, there was yet another application filed by the defendants on 27.06.2018 to 3 the effect that their application with regards to the maintainability of the proceedings of 176 suit, the same has not yet been decided, hence the same may be taken into consideration first. The Court of Assistant Collector, by an order which is under challenge in the present writ petition i.e. dated 18th December 2018, took a decision that no answer or separate decision is required to the application submitted by the defendants subsequently on 27.06.2018, because the said Suit and issue agitated with regards to the maintainability of the proceedings under Section 176 of the Act, on the pretext that it is only partially an agriculture land already stood adjudicated by the decision taken on issue No. 6 by the Assistant Collector on 13th June 2018, hence the said application was rejected on the ground that it was no more open to get the same issue re-agitated at the behest of the petitioner by filing a fresh application, particularly when the order dated 13.06.2018, deciding issue No. 6, which was completely akin issue had attained finality.
7. Another interesting issue which was raised by the petitioner is that at the time when the said question with regards to the tenability of the proceedings under Section 176 of the Act is concerned, is being decided particularly when as per the reports of the Patwari and Tehsildar which was on record, it has shown that there is only a very negligible part of the land where there exists an Abadi, then there has had to be a compliance of Section 331A of the Act, which is quoted hereunder:-
"[331A. Procedure when plea of land being used for agricultural purposes is raised in any suit. - (1) If in any suit, relating to land held by a bhumidhar, instituted in any court, the question arises or is raised whether the land in question is or is not used for purposes connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and a declaration has not been made in respect of such land under Section 143 or 144, the court shall frame an issue on the question and send the record to the Assistant Collector in- charge of the sub-division for the decision of that issue only:
Provided that where the suit has been instituted in the court of Assistant Collector-in-charge of the sub-division, it shall proceed to decide the question in accordance with the provisions of Section 143 or 144, as the case may be.4
(2) The Assistant Collector-in-charge of sub-division after reframing the issue, if necessary, shall proceed to decide such issue in the manner laid down for the making of a declaration under Section 143 or 144, as the case may be, and return the record together with his finding thereon to the court which referred the issue.
(3) The court shall then proceed to decide the suit accepting the finding of the Assistant Collector-in-charge of the sub-division on the issue referred to it.
(4) The finding of the Assistant Collector-in-charge of the sub-
division on the issue referred to it shall, for the purpose of appeal, be deemed to be part of the finding of the court which referred the issue],
8. On a simpliciter reading of the language of the provisions contained under Section 331A of the Act, the tenacity of the argument, which has been extended by the learned counsel for the petitioner is not acceptable by this Court, for the reason and logic being that the provisions contained under Section 331A if itself is taken into consideration, it contemplates that where a plea of maintainability of the proceedings of a regular Civil side is taken into and a plea is raised in a civil suit of its maintainability on the ground that since it is an agricultural land and when the proceedings of the civil Suit itself is not available there the recourse under Section 331A is to be resorted to by Civil Court by framing of an issue by the Civil Court and remitting it back to the Court of Assistant Collector to be answered by it. Section 331A is not available to be complied by the Assistant Collector itself, who is himself competent Court on original side to decide the proceedings in relation to an agriculture land and since the suit in question itself is pending consideration before the Competent Revenue Court as per Schedule II of the Act, i.e. Assistant Collector, the compliance of Section 331A was not required at all, and too by a later application after decision on issue No. 6 dated 13.06.2018.
9. Even otherwise also, the legislative purpose of Section 331A, according to the opinion of this Court is that since the mechanism available to the Revenue Court is a best mechanism 5 which could they have decided the determination of issue of nature of the land, when a proceedings are initiated before the Civil Court in relation to an agricultural land that is why Section 331A contemplates that the matter on formulation of an issue has to be remitted to the competent Assistant Collector to answer the issue back to the Civil Court, where the principal proceedings have been instituted. Section 331A and it is not a proceedings which is to be resorted to by the Assistant Collector itself where suits contemplated under Schedule II is pending. Hence, this question is answered accordingly.
10. The second argument which has been extended by the learned counsel for the petitioner is that even if the decision which has been taken by Assistant Collector by an order dated 13th June 2018, itself is taken into consideration, the said determination made was based on the reports of the Patwari and the Tehsildar these reports itself remark that the some part of the land there exists an Abadi. As per my view, mere existence of an Abadi on a part of agricultural land will not in itself change the nature of the property to take it outside the purview of Section 3 sub Section (14) of the act because in order to oust the land from the purview of the UPZA & LR Act, there has had to be a declaration made under Section 143 to govern the succession or the administration of the land based on the personal laws and since there is an absence of declaration being made Section 143 or Section 144, the land still continues to be an agricultural land and hence the proceedings under Section 176 would be maintainable before the Assistant Collector under the provisions of UPZA & LR Act.
11. The counsel for the petitioner, he further submits that rather he tried to argue that existence of an Abadi even if it is on a very small or negligible part of the property which was the subject matter of the proceedings under Section 176 that in itself will oust 6 the jurisdiction of the Court of Assistant Collector to resort to proceedings under Section 176 is yet again not acceptable apart from the aforesaid reasons and also for the reason that if the entire property is still continued to be an agriculture land, which is a fact not disputed by the petitioner even the proceedings under Section 176 merely because of the fact that a minor part of it there exists an Abadi will not oust the jurisdiction of the Assistant Collector, hence the argument extended by the learned counsel for the petitioner to the said effect is not acceptable. Because major portion of disputed property and its nature, will also govern the jurisdiction of revenue Courts.
12. Learned counsel for the petitioner, during the course of argument had made reference to a judgement as reported in 2012 (2) UD 414, rendered by the co-ordinate Bench of this Court in case of Jiwan Lal Sah and others Vs. Smt. Khashti Devi and others, and particularly he has made a reference to para 15 of the said judgement which is quoted hereunder.
"15. It is pertinent to mention that the bar to the jurisdiction of Civil Court is contained in Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and Section 331-A thereof prescribed the procedure to be followed by the Court when a plea that the land is not being used for purposes connected with agriculture, horticulture or animal husbandry arises or is raised in any suit relating to land held by a Bhumidhar. In my view, the learned Court below has not considered the provisions of Section 333-A of the U.P.Zamindari Abolition and Land Reforms Act, 1950. Whether any particular land is "land" under clause (14) of Section 3 to which the provisions of the said Act are applicable, it has to be determined whether the land is held or occupied for purposes connected with agriculture, horticulture or animal husbandry and that in such a case, the procedure laid down in Section 331-A of the U.P. Zamindari Abolition and Land Reforms Act, 1950 must be followed by the court concerned. I am fortified in my view by the Apex Court judgment in the case of Chandrika Singh and others Vs. Raja Vishwanath Pratap Singh and another (1992, R.D., Page
258). Therefore unless and until, the land is declared nonagricultural, the Court cannot proceed in the matter. If the plaintiffs allege that there are houses standing on the land in dispute, it is mandatory for the court to refer the Issue to the Assistant Collector Incharge of Sub Division to be decided first and only after the decision on that Issue, the Court has then to 7 proceed further with the suit as per sub-section (3) of Section 331-A of the said Act."
13. The learned coordinate Bench, while making reference to a judgement reported in RD 1992 258, Chandrika Singh and others Vs. Raja Vishwanath Pratap Singh and another, has held that in the light of the aforesaid judgement where an issue creeps up as to whether the land is of an agriculture or non agriculture land, then recourse under Section 331A is mandatory. There cannot be any debate on the said issue but the proceedings which was adjudicated by the co-ordinate Bench of this Court in the aforesaid judgement of Jiwan Lal Sah's case (supra) rather was arising out of the proceedings which was drawn before the Civil Court, where the question was raised before the Civil Court, and there the Civil Court has not referred the matter to be decided by the Assistant Collector under Section 331A, that is why the Court has held that the compliance of Section 331A by making a reference of an issue to be answered by the Assistant Collector was mandatory for the Civil Court in the light of the judgement of Chandrika Singh's case. This will not apply because here the proceedings itself has been instituted before the Court of Assistant Collector, who is the competent authority under Schedule II of the Act.
14. Another judgement on which the learned counsel for the petitioner has placed reliance on is that as reported in 2011 (114) RD 594, Hari Sagar Educational Trust Vs. Uttaranchal Gramin Bank. In this case, particularly he has made reference to para 14 which is quoted hereunder:-
"14. The word "agriculture" has been explained by the Supreme Court in S.P. Watel and others vs. Bhagwat Dayal and others, AIR 1973 SC 1293 to mean the science and the art of cultivating the soil including the gathering in of the crops, and the rearing of live-stock, etc. In Commissioner of Wealth Tax, Andhra Pradesh vs. Officer-inCharge (Court of Wards), Paigarh, [1976] 105 ITR 133, the Supreme Court held that "agriculture"
means cultivation of a field which implies expenditure of human skill and labour upon land. The word "agriculture" has been 8 explained in the decision of Lord Coleridge in R. vs. Peters,[1886] 16 QBD 636 to mean that:-
"If the term 'agriculture' is thus understood as comprising within its scope the basic as well as subsequent operations in the process of agriculture and the raising on the land of products which have some utility either for consumption or for trade and commerce, it will be seen that the term 'agriculture' receives a wider interpretation both in regard to its operations as well as the results of the same. Nevertheless there is present all throughout the basic idea that there must be at the bottom of it cultivation of land in the sense of tilling of the land, sowing of the seeds, planting, and similar work done on the land itself. This basic conception is the essential sine qua non of any operation performed on the land constituting agricultural operation. If the basic operations are there, the rest of the operations are wanting the subsequent operations do not acquire the characteristic of agricultural operations."
15. Para 14 of the aforesaid judgement was rather widely dealing with as to what would constitute to be an agricultural land for the purposes of the implication, which was to be drawn by the provisions contained under Section 154 of the UPZA & LR Act which created a bar with regards to the transfer of a land in contravention to the provisions contained under UPZA & LR Act itself. The said answer to the nature of an agriculture land, as provided under para 14 of the said judgement has to be read in the light of para 3 of the said judgement where a loan sanction was obtained on a security agreement for creating a equitable mortgage by depositing the title deeds in relation to an agricultural land which is altogether a different case factually.
16. Para 14 of the said judgement cannot be read in isolation to the findings which has been recorded by the said judgement in para 16 which has equally dealt with as to what would be its bearing in the absence of there being no declaration made under Section 143.
"16. The contention of the petitioner that the land still remains agricultural land since no declaration as yet has been made by the competent authority under Section 143(1) of the U.P.ZA & LR. Act is patently misconceived. In the opinion of the Court, till such time as the requisite declaration is not made by the competent authority under Section 143(1), the land continues to be governed by the provision of the U.P.Z.A. & L.R. Act. It does 9 not mean that the land remains agricultural land. This view is fortified by the decision of the Allahabad High Court in the case of Ahuddin alias Makki vs. Hamid Khan: 1971 R.D. 160, wherein the Court held :-
It is plain that till such time that a Bhumidhar does not get the requisite declaration he continues to be governed by the provisions of the U.P.Z.A. and L.R. Act irrespective of the fact as to whether he uses his land for purposes connected with agriculture, horticulture etc. or not."
17. Hence this judgement too was altogether under a different context and it was considering an aspect with regards to the extension of the mortgage deed in relation to the property for the purposes of procuring a loan where the determination was required to be made as to whether the land is to be treated as an agriculture land or not for the purposes of creating a mortgage for procuring loan.
18. The learned counsel for the petitioner lastly has placed reliance on a judgement rendered by the co-ordinate Bench of this Court in Anirudh Kumar & Others Vs. A.D.J./1st F.T.C., District Haridwar & Others, as rendered in Writ Petition (M/S) No. 863 of 2003, where the aspect pertaining to the implications of Section 331A, was yet again being taken into consideration in the light of the proceedings which was drawn before the Civil Court, as would be apparent from the cause title of the writ petition itself. That is why the writ petition was disposed of with a direction to the competent Civil Court to frame an issue and let the matter on issue be remitted to Assistant Collected to answer the question about the nature of the land and it was not an issue which was emanating from the proceedings drawn under the UPZA & LR Act. Since in the case at hand the provisions and the spirit of the intention under Section 331A has been complied with the Court of principle jurisdiction, itself by deciding issue No. 6 based on the reports of the Competent Revenue Authorities, the issue about the maintainability on ground of jurisdiction was decided on 13th June 2017, that would itself was deciding issue of jurisdiction and hence it could not have been re-
10agitated by filing of yet another application by the petitioner for deciding the issue first which has been rejected by the impugned order dated 18th December 2018.
19. Consequently, this Court does not find any merit in the writ petition and the same is hereby dismissed accordingly.
(Sharad Kumar Sharma, J.) 26.02.2020 Mahinder/