Allahabad High Court
Feku @ Feku Lal Pal Gautam vs Deputy Director Of Consolidation And 3 ... on 11 July, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:136059 AFR Reserved on 06.07.2023 Delivered on 11.07.2023 HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 48 Case :- WRIT - B No. - 1131 of 2022 Feku @ Feku Lal Pal Gautam ----- Petitioner Through : Sri Krishna Nand Yadav, Adv. Vs. Deputy Director of Consolidation and others ----- Respondents Through : Sri A.C. Nishad, Standing Counsel Sudhir Bharti, Adv. ****** CORAM : HON'BLE SAURABH SHYAM SHAMSHERY, J.
1. Brief facts of present case, as culled out from writ petition, are that, Chairman, Land Management Committee issued an Asami Patta of certain land in Village Rakhukhore, Post Kampierganj, Tappa Panchwara, Pargana Haweli, District Gorakhpur in favour of father of petitioner on 30.06.1971 on yearly rent. Accordingly his name was recorded in relevant Khatauni also. There is no averment in writ petition, whether above referred Patta was extended year by year or it was cancelled and whether after death of petitioner's father (date of death is not mentioned), he continued in possession being Pattedar.
2. After a period of more than about 37 years the present petitioner filed an application under Section 9-A(2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "Act, 1953") with prayer that he may be declared as Bhumidhar with transferable right of land in question in terms of provisions of Section 122-B (4-F) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "Act, 1950").
3. Consolidation Officer, Kampierganj, District Gorakhpur vide order dated 11.04.2016 in Case No. 415 (Feku vs. State of U.P.) rejected claim of petitioner and dismissed above referred application. Relevant part of said order is mentioned hereafter:
"मैने वादी के तरफ से प्रस्तुत तर्कों को सुना तथा पत्रावली का सम्यक अवलोकन किया। खाता सं० 616 में अंकित गाटे बन्दोबस्त में ग्राम सभा की बचत भूमि श्रेणी-6 तथा बंजर श्रेणी 5 के खाते में अंकित रहा है। स्वयं वादी द्वारा भी उक्त तथ्य की स्वीकरोक्ति की गयी है, कि प्रश्नगत खाते 1378 फसली के खतौनी खाता सं० 709 में ग्राम सभा की बचत भूमि तथा बंजर भूमि के मे दर्ज रहा है। जहां तक परगनाधिकारी महोदय के आदेश दिनांक 26.03.1977 द्वारा पट्टा स्वीकृत करने का उल्लेख किया गया है तो उससे भी स्पष्ट है कि प्रश्नगत आराजी का यदि कोई पट्टा हुआ भी है तो वह साल दर साल का हुआ। तद्नुसार श्रेणी-3 में अंकित हुआ और अधिनियम में दी गयी व्यवस्थाओं के सापेक्ष में ऐसा पट्टा 5 वर्ष बाद स्वमेव समाप्त हो जायेगा। बिना किसी औपचारिक आदेश के ही ऐसे में यदि श्रेणी -3 का इनद्रज अभी तक चला आ रहा तो वह त्रुटिपूर्ण है और श्रेणी-3 के इन्द्राज के आधार पर ऐसी भूमि पर संक्रमणीय भूमिधर यानी श्रेणी-1 का स्वत्व नहीं दिया जा सकता बल्कि ऐसा इन्द्राज निरस्त होगा। तत्क्रम में मैं इस निष्कर्ष पर पहुंचता हूं कि आधार वर्ष खतौनी के खाता सं० 616 में अंकित गाटों पर वादी का श्रेणी-3 में अंकित इन्द्राज निरस्त करके पूर्ववत ग्राम सभा के बचत भूमि तथा बंजर खाते में अंकित किया जाना उचित होगा।"
4. Petitioner being aggrieved by above referred order, preferred appeal under Section 11-A of Act, 1953 before Settlement Officer of Consolidation, Gorakhpur, however, the same was dismissed by order dated 28.03.2017 and relevant part of order is reproduced as under:
"मैने अपीलकर्ता के अधिवक्ता के तर्कों तथा पत्रावली का अवलोकन किया। सहायक चकबन्दी अधिकारी की आख्या दिनांक 26.12.14 से स्पष्ट है कि विवादित भूमि गाटा सं० 87 आदि खाता 616 में दर्ज है और यह श्रेणी-3 के अंतर्गत खाता है। चकबन्दी अधिकारी ने अपीलकर्ता को सुना है तथा यह लिखा है कि पट्टा हुआ भी है तो वह साल दर साल का हुआ है। विवादित भूमि श्रेणी 3 में अंकित है और श्रेणी 3 के इन्द्राज को कायम नहीं रखा जा सकता है। चकबन्दी अधिकारी द्वारा विवादित भूमि को श्रेणी 3 से खारिज करके ग्राम सभा की भूमि दर्ज किया गया है। पत्रावली के अवलोकन से स्पष्ट है कि विवादित भूमि वर्ग 3 दर्ज रही है। इस प्रकार के चकबन्दी अधिकारी का आदेश न्यायोचित है जिसमें किसी प्रकार के हस्तक्षेप की आवश्यकता नहीं है।"
5. Petitioner being aggrieved by above referred two orders, filed revision under Section 48(3) of Act, 1953 before Deputy Director of Consolidation, Gorakhpur. Petitioner's revision was also dismissed by order dated 24.07.2018 and relevant part of order is mentioned hereinafter:
"मैने निगरानीकर्ता के विद्वान अधिवक्ता के तर्कों को सुना तथा पत्रावली का सम्यक अवलोकन किया। बन्दोबस्त अधिकारी चकबन्दी ने अपने आदेश दिनांक 28.3.2017 द्वारा यह विवेचना किया है कि सहायक चकबन्दी अधिकारी की आख्या दिनांक 26.12.2014 से स्पष्ट है कि विवादित भूमि गाटा सं० 87 आदि खाता सं० 616 में दर्ज है और यह श्रेणी 3 के अंतर्गत खाता है। चकबन्दी अधिकारी ने भी यह उल्लेख किया है कि जो पट्टा हुआ है वह साल दर साल का हुआ है। विवादित आराजी श्रेणी 3 के खाते में अंकित है और श्रेणी 3 के इन्द्राज को कायम नहीं रखा जा सकता है। चूंकि विवादित आराजी श्रेणी 3 के खाते में अंकित है। अतः उसपर निगरानीकर्ता का नाम बतौर संक्रमणीय भूमिधर दर्ज नहीं किया जा सकता है। निगरानी निरस्त किए जाने योग्य है।"
6. Above referred orders dated 11.04.2016, 28.03.2017 and 24.07.2018 are impugned in present writ petition.
7. Sri Krishna Nand Yadav, learned counsel for petitioner, submitted that delay in filing present writ petition which is about more than four years may be condoned since petitioner is a poor person and he was in financial scarcity due to adverse effect of Covid-19 Pandemic. He referred contents of paras 17 and 18 of writ petition in this regard, which are reproduced as under:
"17. That it is important to point here that, the petitioner is very poor person and has no source of income except the land in dispute, therefore due to shortage of money as well as pandemic Covid-19 the instant Writ Petition could not be filed within time. The petitioner has not committed delay in filing the instant Writ Petition willingly and deliberately, thus if there is any delay in filing the instant Writ Petition before this Hon'ble Court, the same may be condoned in the interest of justice, otherwise the petitioner would suffer irreparable loss and injury.
18. That it is also relevant to point out here that after harvesting of Ravi crops, the petitioner has manage fees and expenditures for filing instant Writ Petition, hereafter on 11.4.2022 has come to Allahabad High Court and engaged to Rajnish Shukla, Advocate, High Court for filing the instant Writ Petition, therefore instant Writ Petition was prepared and is being filed before this Hon'ble Court."
8. Learned counsel for petitioner further submitted that petitioner is an agricultural labour belongs to scheduled caste and after death of his father he continued in possession as Pattedar on land in dispute in view of Section 122-B (4-F) of Act, 1950 and since petitioner occupied land before 13th May, 2007, therefore, he shall be admitted as Bhumidhar with non-transferable right and in terms of Section 9-A(2) of Act, 1953 he may be declared as Bhumidhar with transferable right on land in question, however, authorities concerned have not considered the above referred provisions of law and erroneously rejected claim of petitioner.
9. Learned counsel for petitioner has placed reliance on a judgment passed by Supreme Court in Manorey alias Manohar vs. Board of Revenue (U.P.) and others, 2003(5) SCC 521 that the occupant of land who satisfies conditions under sub-section (4-F) of Section 122-B of Act, 1950 is entitled to safeguard his possession as against Gaon Sabha and said section confers right of a Bhumidhar with non-transferable right. Learned counsel also placed reliance on a judgment passed by Coordinate Bench of this Court in Chhidda and others vs. State of U.P. and others, 2019(8) ADJ 122 which was passed on the issue of initiating process of cancellation of lease beyond the period of limitation prescribed under Section 198(6) of Act, 1950.
10. Per contra, Sri A.C. Nishad, learned Standing Counsel for State-Respondents and Sri Sudhir Bharti, Advocate for Respondent-4, i.e., Land Management Committee, have vehemently opposed the above submissions and referred the findings given in impugned orders. They further submitted that land in question was recorded in revenue records under the category of Class-III and Patta issued in favour of father of petitioner was of year to year for maximum five years. Petitioner has not submitted any document that after death of his father Patta was extended and it was allotted to petitioner.
11. Heard learned counsel for parties and perused the material available on record.
12. In the backdrop of above referred facts and law the issue before this Court is, whether an Asami Patta issued to father of petitioner was in operation and was inherited by petitioner after death of his father and whether petitioner has a right to be declared as Bhumidhar with transferable rights?
13. Relevant provisions for adjudication of above referred issue are mentioned hereinafter:
(A) Section 122-B(4-F) of Act, 1950:
"(4-F) Notwithstanding anything in the foregoing sub-sections, where any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe is in occupation of any land vested in a Gaon Sabha under Section 117 (not being land mentioned in Section 132) having occupied it from before May 13, 2007 and the land so occupied together with land, if any, held by him from before the said date as bhumidhar, sirdar or asami, does not exceed 1.26 hectares (3.125 acres), then no action under this section shall be taken by the Land Management Committee or the Collector against such labourer, and he shall be admitted as bhumidhar with non-transferable rights of that land under Section 195 and it shall not be necessary for him to institute a suit for declaration of his rights as bhumidhar with non-transferable rights in that land.
Explanation. - The expression "agricultural labourer" shall have the meaning assigned to it in Section 198."
(B) Section 131 of Act, 1950:
"131. Bhumidhar with non-transferable rights. - 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 bhumidhars by or under this Act, namely-
(a) every person admitted as a sirdar of any land under Section 195 before the date of commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1977 or as a bhumidhar with non-transferable rights under the said section on or after the said date;
(b) every person who in any other manner acquires on or after the said date, the rights of such bhumidhar under or in accordance with the provisions of this Act;
(c) every person who is, or has been allotted any land under the provision of the Uttar Pradesh Bhoodan Yagna Act, 1952.
(d) with effect from July 1, 1981 every person with whom surplus land is or has been settled under Section 26-A or sub-section (3) of Section 27 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960."
(C) Rule 176-A of U.P. Zamindari Abolition and Land Reforms Rules, 1952 (hereafter referred to as "Rules, 1952"):
"176-A. (1) On receipt of the list in Z. A. Form 57-B with the order of the Assistant Collector in-charge of the Sub-Division, the Chairman of the Land Management Committee shall call the person whose selection for allotment of land has been approved by the Assistant Collector m-charge of the Sub-Division and shall furnish to him a certificate in Z.A. Form 58 and shall get a counterpart in Z.A. Form 58-A executed by him. If the land sought to be allotted is a land referred to in Section 132, the person concerned shall be furnished with a certificate in Z. A. Form 59 and shall be asked to execute a counterpart in Z. A. Form 59-D:
Provided that no lease shall be made to an asami for a period exceeding five years.
(2) It shall be lawful for the Assistant Collector-in-charge of the Sub-Division to determine at any time the lease in favour of an asami and upon such determination, the asami shall not be entitled to any compensation.
(3) Every order of determination of lease under sub-rule (2) shall be effective from the commencement of the agricultural year following the date of the order.
(4) Where the decision of the Land Management Committee regarding admission to any land is not approved by the Assistant Collector-incharge of the Sub-Division, steps will be taken afresh for settlement of such land in accordance with the procedure laid down in sub-rule (1) read with Rules 173 to 176-A. All contracts relating to a lease, licence or allotment of land shall be executed in duplicate. One copy of the contract shall be given to the lessee, licencee or allottee and the other copy shall be retained by the Land Management Committee for record."
(D) Section 9-A(2) of Act, 1953:
"(2) All cases which are not disposed of by the Assistant Consolidation Officer under sub-section (1), all cases relating to valuation of plots and all cases relating to valuation of trees, wells or other improvements, for calculating compensation therefor, and its apportionment amongst co-owners, if there be more owners than one, shall be forwarded by the Assistant Consolidation Officer to the Consolidation Officer, who shall dispose of the same in the manner prescribed."
14. I have carefully perused the Patta issued in favour of father of petitioner (Annexure-7 to the writ petition). Said Patta was issued to father of petitioner on 30.06.1971 as an Asami only on yearly rent basis. Therefore, Rule 176-A of Rules, 1952 becomes relevant. As referred above, proviso to it has specifically provided that no lease shall be made to an Asami for a period exceeding five years. Petitioner has not brought on record any document in support of his contention that Patta issued to his father as an Asami was extended after five years, i.e., after 30.06.1976 (Patta was issued on 30.06.1971). Further, taking note that land in question was mentioned in revenue record under the category of Class-III and while rejecting application filed by petitioner under Section 9-A(2) of Act, 1953 it was directed to be recorded as a land of Gaon Sabha as Banjar under the category of Class-V, therefore, the very basis of claim of petitioner that he was occupying land in question as Pattedar, is not available to him.
15. In order to take benefit of Section 122-B (4-F) of Act, 1950 the essential condition is that petitioner has occupied land in question before 13th May, 2007 as an Asami. However, as discussed above, since life of Patta issued in favour of father of petitioner already came to an end after expiry of five years, i.e., on 30.06.1976, therefore, above referred essential condition was not available to petitioner and he cannot claim that on the given date, i.e., on 13th May, 2007, he was already admitted as Bhumidhar with non-transferable right and that by virtue of long possession of land he may be declared Bhumidhar with transferable right also.
16. A Coordinate Bench of this Court in Ashok Kumar vs State of U.P. and others, 2011(7) ADJ 748 in similar circumstances has held as under:
"7. In the instant case, the petitioner in paragraph No.4 has clearly mentioned that he is a class-III lessee. It is on the strength of the said lease that the petitioner got his name mutated during consolidation operations. In the opinion of the Court, the mere recording of the name of the petitioner does not give him a right higher than that which has been fixed under the Statute. The petitioner claims himself to be a lessee as defined under Section 133 (c) of the U.P. Zamindari Abolition & Land Reforms Act. Section 132 of the Act provides that no-one shall acquire rights of a Bhumindari tenant in respect of such land. The petitioner, therefore, cannot claim himself to be a bhumindar of the land in dispute nor can his name continue to be recorded as such. Any continuance of entry would, therefore, not confer any title beyond the period for which the lease existed. For this, the proviso to Rule 176-A would be relevant which prescribes the period of the lease. Earlier, the lease was for a period of 9 years which came to be restricted to 5 years after the amendment w.e.f. 1.11.1975. Prior to that the period of letting out to a asami was 9 years as per sub-Rule 2 of Rule 171-A...."
17. Another Coordinate Bench in Chandan Prasad and another vs. State of U.P. and others, Neutral Citation No. 2016:ADC:149796 has held as under:
"The only other contention that survives for consideration is the contention that the lessees become bhuimidhar with transferable rights, upon the expiry of 10 years from the date of allotment, in accordance with Section 131-B of the Act. Even this submission is completely misconceived. It is only a bhumidhar with non transferable rights which can become a bhumidhar with transferable rights upon the expiry of 10 years from the date of the allotment. This section does not apply to an asami, as was the status of the petitioners' predecessor-in-interest."
18. In view of above discussion, since petitioner has not satisfied requisite condition to take advantage of Section 122-B(4-F) of Act, 1950, therefore, reliance placed by learned counsel for petitioner on Supreme Court's judgment in Manorey alias Manohar (supra) and this Court's judgment in Chhidda (supra) would not help him in any manner.
19. As discussed above, since Patta issued to father of petitioner does not exist in law after five years of its allotment, i.e., from 30.06.1976, therefore, in view of Ashok Kumar (supra) and Chandan Prasad (supra) petitioner has no right to be declared as Bhumidhar with non-transferable right and application filed by petitioner under Section 9-A(2) of Act, 1953 was rightly rejected by Consolidation Officer and appeal and revision thereof was also rightly rejected. Learned counsel for petitioner is not able to show any illegality or irregularity in impugned orders.
20. The writ petition lacks merit and is accordingly dismissed.
21. Interim order, if any, stands vacated.
22. There shall be no order as to costs.
Order Date :-11.07.2023 AK