Allahabad High Court
Usha Devi vs State Of U.P. Thru. Addl. Chief Secy. / ... on 25 September, 2023
Bench: Vivek Chaudhary, Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:61855-DB Court No. - 3 Case :- WRIT - C No. - 7869 of 2023 Petitioner :- Usha Devi Respondent :- State Of U.P. Thru. Addl. Chief Secy. / Prin. Secy. Revenue Lko. And 3 Others Counsel for Petitioner :- Piyush Mishra Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey Hon'ble Vivek Chaudhary,J.
Hon'ble Manish Kumar,J.
Heard learned counsel for the petitioner, learned Standing Counsel for State/respondents and Sri D.K. Pandey, learned counsel for respondent no.4/Gaon Sabha.
Petitioner has approached this Court claiming that fisheries patta was allotted to her husband on 06.02.2021 and the lease deed was executed on 13.10.2021 and the same was effective for a period of ten years. The husband of the petitioner has expired on 12.12.2021 and now the same is being advertised for re-auction. The date of auction is fixed as 12.10.2023.
Learned counsel for petitioner places reliance on the judgment in the case of Smt. Gyan Mati & others v. State of U.P. and others, Writ Petition No.27765 (MB) of 2016, decided on 23.11.2016 and submits that holder of fishing rights are asami and, therefore, fishing rights are inheritable per se. Relevant paragraphs in the case of Smt. Gyan Mati (Supra) reads:
"The question which calls for consideration in this case is as to whether the petitioner will have inheritable rights over the lease executed in favour of her late husband and as to whether the fishing rights are to be devolved in respect of the pond in question on the petitioner. The U.P. Revenue Code, 2006 (hereinafter referred to as ''Code, 2006') has come into force with effect from 11.02.2016. Section 108 of the Code, 2006 provides for general order of succession to male bhumidhar, asami or Government lessee, which is extracted herein below:
"108.General order of succession to male bhumidhar, asami or Government lessee.- (1) Subject to the provisions of section 107, where a bhumidhar, asami or government lessee, being a male dies, his interest in his holding shall devolve upon his heirs being the relatives specified in sub-section (2) in accordance with the following principles, namely:-
(i) the heirs specified in any one clause of sub-section (2) shall take simultaneously in equal shares;
(ii) the heirs specified in any preceding clause of sub-section (2) shall take to the exclusion of all heirs specified in succeeding clauses, that is to say, those in clause (a) shall be preferred to those in clause (b), those in clause (b) shall be preferred to those in clause (c) and so on, in succession;
(iii) if there are more widows than one, of the bhumidhar, asami or government lessee, or of any predeceased male lineal descendant, who would have been an heir, if alive, all such widows together shall take one share;
(iv) the widow or widowed mother or the father's widowed mother or the widow of any predeceased male lineal descendant who would have been an heir, if alive, shall inherit only if she has not remarried.
(2) The following relatives of the male bhumidhar, asami or government lessee are heirs, subject to the provisions of sub-section (1), namely:-
(a) widow, unmarried daughter and the male lineal descendants in the male line of descent per stirpes:
Provided that the widow and the son of a predeceased son how low-soever shall inherit per stirps the share which would have devolved upon the predeceased son had he been alive;
(b) mother and father;
(c) (married daughter);
(d) brother and unmarried sister being respectively the son and the daughter of the same father as the deceased, and son of a predeceased brother, the predeceased brother having been the son of the same father as the deceased;
(e) son's daughter;
(f) father's mother and father's father;
(g) daughter's son;
(h) married sister;
(i) half sister, being the daughter of the same father as the deceased;
(j) sister's son;
(k) half sister's son, the sister having been the daughter of the same father as the deceased;
(l) brother's son's son;
(m) father's father's son.
(n) father's father's son's son
(o) mother's mother's son."
According to the aforesaid provisions, the successors as enumerated in Section 108 itself, are to inherit the rights vested in a male bhumidhar, asami or Government lessee in respect of the land holding of the deceased male tenure holder. Section 108, thus, encompasses in its folds in three categories of persons, whose rights in the land holdings are to devolve upon their heirs in terms of the provisions contained therein and these categories are; (i) bhumidhar, (ii) asami and (iii) Government lessee. Asami has been defined in Section 78 of the Code, 2006, according to which, every person belonging to classes given therein shall be called an asami and shall have all the rights and be subject to all the liabilities conferred or imposed upon such asami by or under the Code, 2006.
One of the classes of persons, who is described as asami in section 78 of the Code, 2006, is a person, who was asami immediately before the date of commencement of Code, 2006. Section 78 (a) of Code, 2006 is extracted herein below:-
"78. (a) subject to the provisions of clause (dd) of sub-section (1) of section 76 of this Code, every person who was an asami immediately before the date of commencement of this Code."
The question in this case, thus, is as to whether late Chhedi Ram can be termed to be asami and if it is held that he is an asami, his rights will devolve upon the petitioners in terms of the provisions contained in Section 108 of the Code, 2006.
The lease in respect of fishing right was settled by the Gaon Sabha concerned in favour of late Chhedi Ram on 27.10.2009 i.e. at the time when the Code, 2006 was not in force and the matter relating to fishing rights and categories of tenure holders etc. were governed by the provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ''U.P.Z.A.& L.R. Act). Under the U.P.Z.A.& L.R. Act, asami has been described as a person belonging to classes mentioned therein and such asami was vested with all the rights and was subject to all the liabilities conferred or imposed upon asami by or under the said enactment. The class of person defined as asami under section 133 of the U.P.Z.A.& L.R. Act included every person, who on or after the date of vesting, was admitted by the land management committee or the person entitled as a lessee of land described in section 132 of the U.P.Z.A.& L.R. Act. Section 133(c) of the U.P.Z.A.& L.R. Act is quoted hereinbelow:-
"133 (c) every person who, on or after the date of vesting, is admitted by the [Land Management Committee] or the person entitled as a lessee of land described in Section 132".
Thus, any person admitted by the Land Management Committee as a lessee over the land described in Section 132 of U.P.Z.A & L.R. Act was an asami. Section 132 describes the land in which bhumidhari rights could not accrue and includes pasture lands or lands covered by water and used for the purposes of growing singhara or other produce or land in the bed of a river and used for casual or occasional cultivation. Thus, a pond having potential of fishing activities is covered by Section 132 of U.P.Z.A.& L.R. Act under the Management of Bhumi Prabandhak Samiti.
In the instant case, the fishing rights were conferred on late Chhedi Ram on 27.10.2009 and he was admitted as lessee and hence, he would be an asami within the meaning of Section 133 of U.P.Z.A.& L.R. Act. A conjoint reading of section 133 of U.P.Z.A. & L.R. Act with Sections 78 and 108 of the Code, 2006, makes it clear and leaves no doubt that such asamis rights in respect of lease granted in favour of the persons before enforcement of Code, 2006 will be inheritable, in view of provision contained in section 108 of the Code, 2006.
In view of the aforesaid discussions, the writ petition is allowed with the direction to the Sub Divisional Officer concerned to consider the claim of the petitioners for granting them inheritable rights in respect of the lease executed in favour of late Chhedi Ram pertaining to khasra plot no.181, having an area of 1.202 hectare, situate at Jwala Purwa, Pargana and Tehsil-Utraula, district-Balrampur and pass an appropriate order expeditiously, say within a period of six weeks from the date of production of certified copy of this order. The Sub Divisional Officer shall also conclude all necessary formalities for conferring the fishing rights on the petitioners after he takes a decision in terms of this judgment for remainder period of lease till 26.10.2019.
There will be no order as to costs."
Considering the aforesaid, the writ petition is disposed of with a direction to respondent No.2/Sub-Divisional Magistrate to decide the application/representation of the petitioner, in light of the above decision, within a period of six weeks from the date of production of a certified copy of this order.
(Manish Kumar, J.) (Vivek Chaudhary, J.) Order Date :- 25.9.2023 Arjun/-