Allahabad High Court
Irshad Ahmad And Others vs State Of U.P. And Others on 7 August, 2019
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 6 Case: - WRIT - C No. - 12032 of 2004 Petitioner :- Irshad Ahmad And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Ashok Nath Tripathi Counsel for Respondent :- C.S.C.,Anuj Kumar Hon'ble Yashwant Varma,J.
Heard Sri Ashok Nath Tripathi learned counsel for the petitioners and Sri Rajesh Srivastava learned Standing Counsel for the State respondents.
This petition calls in question an order passed by the Sub Divisional Officer dated 04 November 1995. A challenge is further laid to the orders of 27 December 2002 and 11 December 2003. By the original order an asami lease which was granted to the petitioners was held to be terminated and consequential directions issued for expungement of their names from the relevant record. The petitioners are stated to have filed an application for recall of that order which was dismissed on 27 December 2002. That order has been affirmed by the authority in revision.
The petitioners claimed rights over the property in question in light of a lease executed in their favour in respect of plot Nos. 1998 and 1999. Undisputedly the plots in question fell in the category of land enumerated in Section 132 of the U.P. Zamindari Abolition And Land Reforms Act, 1950 ["the 1950 Act"]. It was admittedly a lease referable to the provisions of Section 197 of the 1950 Act. The Patta which had been executed on Form-59 did not prescribe a particular tenure for the lease. However, bearing in mind the nature of the lease, indubitably it would be governed by the provisions made in Rule 176A of the Rules framed under the 1950 Act.
It appears that initially the respondents took the view that the petitioners had failed to utilise the Patta for the purposes granted, namely, for establishing a dairy and therefore, it must be held that they had abandoned the lease. It was consequently held as liable to be terminated. It was in the above backdrop that the respondents proceeded to pass the order of 04 November 1995 purporting to invoke the provisions of Section 186 of the 1950 Act. This Court while entertaining the petition on 07 April 2004 had provided for status quo in respect of the disputed plot being maintained by parties. That order is stated to have continued till date. During the pendency of the petition, an amendment application was moved in terms of which the petitioners have additionally sought extension of benefits conferred by Section 76(dd) of the U.P. Revenue Code, 2006 ["the 2006 Code"] that came to be promulgated in the meanwhile and replaced the 1950 Act.
The principal contention which is addressed by Sri Tripathi was that Section 186 of the 1950 Act deals with abandonment and as is evident from a bare reading of subsection (5) thereof, once the Bhumidhar or Asami appears to contest the notice, it is incumbent upon the Tehsildar to drop all proceedings. According to Sri Tripathi the initial order was passed without notice and aggrieved thereby once the petitioners applied for recall and restoration, the proceedings should have been dropped at that stage itself. It is his submission that the lease was one without a fixed tenure thus conferring a right on the petitioners to possess the land in question till it was determined in accordance with law. Sri Tripathi further submits that in terms of the provisions made in clause (dd) of Section 76 of the 2006 Code and bearing in mind that the petitioners have been in continuous possession of the leased land, they must be extended all benefits as contemplated under that provision.
Sri Rajesh Srivastava, learned Standing Counsel, countering these submissions has firstly contended that the Patta which was executed in favour of the petitioners was clearly referable to Section 197 of the 1950 Act since undisputedly the land which was leased fell within the ambit of the categories enumerated in Section 132 of that Act. In view of the above, Sri Srivastava submitted that the lease in question must be recognised as being for a maximum period of five years in light of the provisions made in Rule 176-A. According to Sri Srivastava, the provisions of Section 76(dd) of the 2006 Code can have no application since land which is covered under Section 77 of the 2006 Code is specifically excluded from the protection extended under Section 76 (dd). Section 77 of the 2006 Code, it becomes pertinent to note, is pari materia to Section 132 of the 1950 Act. In support of the submissions noted above both the learned counsels have firstly placed reliance upon the decision rendered in Hari Ram v. Collector1 wherein a question arose with respect to the procedure which is liable to be followed for cancellation of a lease granted under the 1950 Act. Dealing with the contention which was addressed there a learned Judge of the Court held that a lease granted under the aforementioned Act need not be determined only by way of filing of a suit under Section 202 of the 1950 Act. It held that the right of an Asami could be extinguished by determination of the lease under Rule 176-A (2). The relevant observations as made in that decision are extracted hereinbelow:-
"21. As observed above, there is no material on the record to suggest that leases were for a fixed period. Asami leases of the petitioners have been taken to be year to year and in the present case leases being year to year, for determination of the lease orders are required to be passed. However, the words "at any time" used in Sub-rule (2) of Rule 176A are wide enough to exercise the power when the lessee continues with the lease. There is no provision in the Act or the Rules that after expiry of the period of lease, lease shall automatically stand determined and right, extinguished. There being no provision in the Act and Rules for automatic determination or extinction of the right for determining the rights, a decision has to be taken. In above view of the matter, the arguments of the petitioners' counsel cannot be accepted that in the facts of the present case power under Rule 176A could not have been exercised by the Assistant Collector. Rule 176A (2) uses the word "determine". After determination of the lease the right which flows from the lease will naturally be extinguished. As noted above, Section 194 (c) uses two phrases, namely, asami has been ejected or his interest therein have otherwise extinguished. This provision also makes it clear that Land Management Committee can take over land from asami either when he has been ejected or his interest therein have otherwise extinguished. The word "otherwise extinguished" used in Sub-clause (c), as noted above, can also take in its purview the extinction of the lessee's right by determination of the lease under Rule 176A (2). The exercise of power under Rule 176A is for carrying out the purpose of the Act which rule has been framed under Section 230 for carrying out the provisions of Chapter VIII.
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24. From abovesaid discussions, it is held that rights of asami can be extinguished by determination of the lease under Rule 176A (2). It is further found that after determination of the lease there is no necessity of filing a suit under Section 202 of the Act for ejectment of the asami and the possession of the asami can be taken by Land Management Committee in accordance with the Rules from the commencement of agricultural year following the date of the order. It is further held that before determination of the lease under Sub-rule (2) of Rule 176A, a notice is required to be given by the Assistant Collector to the lessee."
Sri Srivastava learned Standing Counsel has additionally placed reliance upon two other judgments rendered by learned Judges of the Court in Ashok Kumar v. State of U.P. And Others2 and Ram Naresh v. State of U.P. And others3.
Undisputedly the lease made in favour of the petitioners was one that is directly traceable to the provisions of Section 197 of the 1950 Act. That provision contemplates the grant of lease to persons as Asamis on any land falling within the ambit of Section 132. Section 132 enumerates the classes of land which are reserved for public utility and on which ordinarily no Bhumidhari rights can accrue. The lease which is granted under Section 197 must consequently be understood bearing in mind the character of the land to which the person is admitted. The lease granted in favour of the petitioners was made out on Z.A. Form 59D which reads thus:
Z.A. Form 59-D [See Rule 176-A and Para 39] Model Form To be executed from asami I....... son of........ resident of....... Village........ division........ Tahsil....... district.......... have taken lease of land of Bhumi Prabandhak Samiti in the position of asami at annual land revenue/rent under that term and condition that if the land will be required for public purpose its lease or licence will be terminated with the date of commencement of agricultural year of the next expiration period.
The annual land revenue/rent oh the above mentioned land will/shall be due at under mentioned date, i.e. Rs. ............ on.............. date....... Rs........... on........ date. Name of village....... Pargana........... Tahsil......... District...............
Khasra no. of lands Area Boundary Dated. .................. Signature Asami
As is evident from the form of the lease, although no specific tenure thereof is fixed, it is clearly provided therein that the lease or license would stand terminated the moment it be found that the land is required for a public purpose. Viewed in that context it is manifest that the lease cannot be understood or recognised as being one in perpetuity. Coupled with this is the provision made in Rule 176-A of the 1952 Rules. The proviso to Rule 176-A clearly prescribes that no lease made in favour of an Asami would exceed a period of five years. It is in this backdrop that the decisions rendered by the Court in Ashok Kumar and Ram Naresh assume significance.
In Ashok Kumar the submission which was addressed was that since the lease had been terminated without affording an opportunity of hearing, the order of termination was liable to be set aside and the matter remanded. While negativing this submission, the learned Judge observed that since the lease itself would come to an end statutorily and by efflux of time in light of Rule 176A, no prejudice stood caused to the lease holder even if a notice had not been issued. The following observations as entered in Ashok Kumar and which are relevant for deciding the present writ petition are extracted hereinbelow: -
"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. This aspect has been noted in para 28 of Ramdeo's case (supra).
8. Where the Statute itself has determined the period of lease then in the opinion of the Court, no fresh determination is required. If the person has unauthorizedly held over the land, he can be ejected by either taking recourse to summary proceedings or to any other mode after putting him to notice. The ratio of the case of Hari Ram, therefore, has to be understood in the aforesaid context.
9. Similarly in the decision in the case of Ramdeo and others, the Court further came to the conclusion that a summary procedure is also provided under Section 212-A of the U.P. Zamindari Abolition & Land Reforms Act. While dealing with the provisions of the U.P. Land Revenue Act, this Court further held in para 5 of Ramdeo's decision (supra) that the only procedure available for the determination of a lease is Section 202, cannot be accepted.
10. The opportunity to the petitioner for establishing his right as against the period prescribed for subsistence of the lease was available before this Court as well. It is not the case of the petitioner that the lease was either extended to the petitioner or was granted to the others afresh. The petitioner has not placed any material indicating extension of the lease or otherwise being continued under any law for the time being in force. Further the amendment in the Rules as pointed out herein above, the period of lease stood reduced to 5 years. Even that period has expired. The petitioner, therefore, cannot continue as an asami beyond the said statutory period.
11 Faced with this situation and having noticed the decisions in the case of Hari Ram and others herein above, this Court in paras 6 to 8 in the case of Chhotti Vs. State of U.P. and others, held as under:-
"6. As by virtue of the aforesaid rule maximum period the lease is five years and petitioner has not stated anything in this writ petition that in case opportunity of hearing is provided to him, what plausible cause he will be able to show hence it is not appropriate to remand the matter for fulfilment of useless formality of opportunity of hearing. The proceedings in which impugned order was passed were in fact under Rule 176-A(2).
7. At this juncture reference may also be made to the Authority in Hari Ram Vs. Collector, wherein it has been held that for eviction of asami it is not necessary to file suit under Section 202 of the Act and it may be done by passing orders under Section 33/34/39 of U.P.L.R. Act also.
8. Accordingly, there is no merit in the writ petition hence it is dismissed."
The giving of an opportunity would, therefore, be an empty formality. It would be appropriate to explain that this concept of opportunity was held to be available on the facts of Hari Ram's case where the period of lease was not known and which was noted in para 19 of the said case. "
In Ram Naresh a learned Judge dealing with an identical Asami lease in which no tenure was fixed held as follows:-
"17. Grant of Assami lease is altogether different from admission of any person as Bhumidhar with non-transferable rights on the land of the Gaon Sabha other than the land specified in Section 132 of the Act for which allotment is made under Section 195 of the Act in accordance with the preference provided in Section 198. The procedure for cancellation of lease provided under Section 198(4) of the Act is in connection with and related to the grant of lease on Gaon Sabha land other than those specified under Section 132 of the Act as bhoomidhar with non-transferable rights. The said procedure as such is not applicable to Assami lease covered by Section 197 of the Act.
18. In view of the above, the submission that the Assami lease granted to the petitioner continues as it has not been cancelled under Section 198(4) of the Act has no substance. The Assami lease of the petitioner stands determined with efflux of time.
19. In Kehri Singh and others Vs. State of U.P. through Collector, Mathura 2007 (5) adj 262, it has been provided that the holder of Assami lease is liable to eviction in a summary manner after expiry of period of lease by expunging the name from the revenue records, after providing opportunity of hearing.
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22. A similar view was expressed in Chhotti Vs. State of U.P. and others 2009 910) adj 761, that Assami lease holder has no right to continue in possession on the expiry of lease and his name is liable to be expunged from revenue records. No opportunity of hearing is necessary when nothing plausible has been stated about the defence which may also change the outcome.
23. In the instant case also the Assami lease of the petitioner stands determined by the Statute itself i.e. by virtue of Rule 176-A of the Rules on the expiry of five years from 17.8.1992. Therefore, there was no necessity for any fresh determination and the petitioner was liable for eviction by expunging of his name in the revenue records for which even notice or opportunity of hearing would have been an empty formality as the petitioner is unable to justify his continuance in possession over the land in dispute after expiry of the lease period. "
Both these decisions have principally held that even if the Asami lease does not specify a particular tenure, in light of the provisions made in Rule 176-A, it would be deemed to have come to an end on the expiry of a period of five years. It was further held that once the period of five years expires, there is no necessity for any fresh determination of rights and that the name of the leaseholder would be liable to be expunged from the revenue record without even a notice or an opportunity of hearing. This the learned Judge held since, it was opined that the following of such a procedure would clearly be an empty formality. Once these legal principles are borne in mind, it is manifest that the lease of the petitioner, irrespective of whether it had been abandoned or not, would come to an end on the expiry of five years. It is not the case of the petitioners that the lease was either extended or freshly made thereafter. The petitioners appear to have merely continued on the strength of the interim order which was granted on this writ petition.
The Court then proceeds to deal with the argument addressed on the basis of Section 186 of the 1950 Act. While it is true that Section 186 deals with a case of abandonment and clearly provides that once the lease holders responds, the proceedings must be dropped, that does not in the considered view of this Court detract from the fundamental issue which has been raised and considered, namely, the tenure of the lease. Irrespective of whether there was in fact abandonment, there was no right inhering in the petitioner to occupy the land in question beyond the maximum period prescribed in Rule 176-A. The submission made on the strength of Section 76(dd) of the U.P. Revenue Code 2006 is noticed only to be rejected since it admittedly excludes from its operation leases or lands possessed which fall in the categories enumerated and specified in Section 132 of the 1950 Act and its pari materia provisions made in Section 77 of the 2006 Code. As noted above, the petitioners do not deny that they were admitted to land falling within the ambit of Section 132 of the 1950 Act.
In view of the above, this petition fails and is consequently dismissed.
Order Date: - 7.8.2019 faraz