Allahabad High Court
Karamjeet Singh And 2 Others vs Board Of Revenue U.P. Lucknow And 2 ... on 19 March, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Reserved on 27.02.2024 Delivered on 19.03.2024 Neutral Citation No. - 2024:AHC:48683 Court No. - 49 Case :- WRIT - B No. - 24167 of 2017 Petitioner :- Karamjeet Singh And 2 Others Respondent :- Board Of Revenue U.P. Lucknow And 2 Others Counsel for Petitioner :- Arvind Srivastava Counsel for Respondent :- C.S.C. Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Arvind Srivastava, learned counsel for the petitioners, Mr. Rajesh Kumar Tiwari, learned Additional Chief Standing Counsel for the State-respondent and Mr. Pradeep Singh, learned counsel for respondent No. 4/Gaon Sabha.
2. Brief facts of the case are that the petitioners' father was employed in the Indian Army and after retirement from the Armed Forces, he was inclined to settle at Mauza Roshannagar, Pargana Arhaura, Tehsil Chunar, District Mirzapur. Petitioners' father filed an application dated 24.03.1973 before the District Magistrate, Mirzapur, for allotting a peace of land to him so that he may cultivate, reside and earn his livelihood. On the application of petitioners' father proceeding was started and a land was allotted in favour of petitioners' father on 22.10.1973. The Sub-Divisional Magistrate granted his approval in respect to the aforementioned allotment made in favour of the petitioners' father giving him Sirdari right in respect to plot Nos. 84, 102, 104, 1, 64/1, 103, 104/183. Naiyab Tehsildar, vide order dated 20.08.1975, ordered to record the name of petitioners' father as Sirdar in respect to plot Nos. 84, 102, 104, 1, 64/1, 103, 104/183. In pursuance of the aforementioned allotment made in favour of the petitioners' father construction was made by him. After expiry of ten years, a proceeding was initiated in respect to the the aforementioned Sirdari right of petitioners and Tehsildar, vide order dated 07.12.1989, recommended to record the aforementioned plot as Asami class-3 after expiring the entry of bhumidhar with non-transferable right. The aforementioned report dated 07.12.1989 was accepted by Sub-Divisional Magistrate, vide order dated 26.12.1989. Against the order dated 26.12.1989, a revision was filed by petitioners' father before the Commissioner, which was dismissed by Additional Commissioner, vide order dated 08.05.1997. Petitioners' father challenged the order dated 08.05.1997, through revision before the Board of Revenue, but Board of Revenue has also dismissed the revision vide order dated 01.03.2017. Hence, this writ petitioner challenging the order dated 26.12.1989 passed by Sub-Divisional Magistrate, order dated 08.05.1997 passed by Additional Commissioner and order dated 01.03.2017 passed by Board of Revenue.
3. This Court, vide order dated 26.05.2017, entertained the matter and granted interim protection in favour of petitioners. In pursuance of the order dated 26.05.2017, counter affidavit has been filed by State and petitioners has filed his rejoinder affidavit also.
4. Learned counsel for the petitioners submitted that petitioners' father was granted lease in the year 1973 being ex-army man as such, the entry of the petitioner cannot be expunged in arbitrary manner without cancelling the lease executed in favour of the petitioners' father in accordance with law. He further submitted that on the basis of lease executed in favour of petitioners' father, the entry was made in the revenue record as Sirdar and later on, due to operation of law petitioners' father became bhumidhar, with non-transferable right. He further placed a copy of Khatauni, which is annexed as Annexure No. 6 to the instant petition, in which petitioners' father was recorded as bhumidhar with non-transferable right in respect to plot in question. He further submitted that due to further operation of law, the petitioners' father is to be recorded as bhumidhar with transferable right, but under the impugned order, the petitioners entry has been expunged on misconceived ground that petitioners were asami of the plot in question as such, no right will accrue to petitioners after expiry of five years. He further submitted that in view of provisions contained under Section 76 (dd) of U.P. Revenue Code 2006, every person, who was even an asami in possession of land not covered by Section 77 of U.P. Revenue Code 2006 shall be given bhumidhari right. He further submitted that the land in dispute is not covered under Section 77 of the U.P. Revenue Code 2006 as such, even assuming, though without admitting, that the petitioners' father was asami, petitioners will be entitled to the benefit of Section 76 (dd) of the U.P. Revenue Code 2006 and petitioners are entitled to be recorded as bhumidhar with transferable right as petitioners' father has expired. He further submitted that impugned orders passed by Sub-Divisional Officer, Additional Commissioner and Board of Revenue are wholly illegal as such, the same are liable to be set aside and petitioners should be recorded as bhumidhar with transferable right.
5. On the other hand, Mr. Rajesh Kumar Tiwari, learned Additional Chief Standing Counsel for the State and Mr. Pradeep Singh,learned counsel for respondent No. 4/Gaon Sabha, submitted that petitioners' father was asami of plot in question as such, no right will accrue to petitioners' father or the petitioners after expiry of five years. They further submitted that impugned orders have been rightly passed by the respondents as such, no interference is required against the impugned orders. They further submitted that entry of bhumidhar with non-transferable right was made in illegal manner as such, the entry has been expunged under the impugned orders, which requires no interference by this Court. They further submitted that instant writ petition filed by the petitioners is liable to be dismissed.
6. I have considered the arguments advanced by learned counsel for the parties and perused the record.
7. There is no dispute about the fact that allotment was made in favour of petitioners' father in the year 1973 in respect to land which is not covered by Section 77 of U.P. Revenue Code 2006. There is also no dispute about the fact that plot in dispute was recorded as banjar before making allotment in favour of petitioners' father. There is also no dispute about the fact that Nayb Tehsildar, while passing the order for recording the name of petitioners' father in respect to the plot in question vide order dated 20.08.1975 ordered to record the name of petitioners' father as sirdar, but under the impugned order, the petitioners' father was ordered to be recorded as asami of the plot in question. There is also no dispute about the fact that revisions filed by petitioners' father have been also dismissed by Additional Commissioner/Board of Revenue.
8. In order to appreciate the controversy involved in the matter the perusal of Section 76 of U.P. Revenue Code 2006 will be relevant for perusal which is as under:-
"76. Bhumidhar with non-transferable rights.- (1) 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 bhumidhar by or under this Code, namely:-
(a) every person who was a bhumidhar with non-transferable rights immediately before the date of commencement of this Code;
(b) every person who is admitted as a bhumidhar with non-transferable rights on or after the said date by the Bhumi Prabandhak Samiti to any land under or in accordance with the provisions of this Code;
(c) every person who is allotted any land on or after the said date under the provisions of the Uttar Pradesh Bhoodan Yajna Act, 1952;
(d) every person who is allotted any land on or after the said date under the provisions of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960;
(dd) every person who was an asami in possession of land not covered by section 77 of this Code, immediately before the date of the commencement of this Code and had been recorded as such in class-3 of the annual register (khatauni) of 1407 Fasli:
Provided that where the land in possession of a person, together with any other land, held by him in Uttar Pradesh exceeds the ceiling area determined under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, the rights of a Bhumidhar with non-transferable rights shall accrue in favour of such person in respect of so much area of the first mentioned land, as together with such other land held by him, does not exceed the ceiling area applicable to him, and the said area shall be demarcated in the prescribed manner in accordance with the principles laid down in the aforesaid Act;
(e) every person who in any other manner acquires on or after the said date, the rights of such a bhumidhar under or in accordance with the provisions of this Code, or any other law for the time being in force.
(2) Every person who was a bhumidhar with non-transferable rights immediately before the commencement of this Code and had been such bhumidhar for a period of five years or more, shall become bhumidhar with transferable rights on such commencement.
(3) Every person who was a bhumidhar with non-transferable rights on the commencement referred to in sub-sections (1) and (2) or becomes bhumidhar with non-transferable rights after such commencement shall become bhumidhar with transferable rights after expiry of five years from his becoming bhumidhar with non-transferable rights.
(4) Notwithstanding anything contained in any other provisions of this Code, if any person transfers land by sale after becoming bhumidhar with transferable rights under sub-section (2) or sub-section (3), he shall not be eligible for lease of any land vested in the Gram Panchayat or the State Government or the surplus land defined in the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960."
9. The perusal of Section 77 of the U.P. Revenue Code 2006 will be also relevant which is as under:-
[(1)] Notwithstanding anything contained in this Code or any other law for the time being in force; no person shall acquire the rights of a bhumidhar in the following land : -
(a) Khaliyan, manure pits, pasture land or land normally used as burial or cremation ground;
(b) land covered by water and used for the purpose of growing singhara or other produce;
(c) land situate in the bed of a river and used for casual or occasional cultivation;
(d) such tracts of shifting or unstable cultivation which the State Government may by notification specify;
(e) land declared by the State Government to be intended or set apart for taungya plantation and notified as such;
(f) grove land entrusted or deemed to be entrusted to a [Gram Panchayat] or any other local authority under Section 59;
(g) land included in sullage farm or trenching ground entrusted or deemed to be entrusted to a [Gram Panchayat] or any other local authority under Section 59;
(h) had acquired or held for a public purpose or a work of public utility;
(i) land covered by a pond, tank or lake, or forming part of an embankment, bandh or bhita; and
(j) any other land which the State Government may, by notification, specify in this behalf;
Explanation. - The expression 'public purpose', in clause (h) shall include :-
(i) land set apart for military camping ground;
(ii) land included within railway or canal boundaries;
(iii) land acquired and held by a local authority for its own purposes;
(iv) land referred to in Section 29-C of the Uttar Pradesh Consolidation of Holdings Act, 1953; or
(v) land reserved by a [Gram Panchayat] for the purposes of public utility :
[***] [(2) Notwithstanding anything to the contrary contained in other provisions of this Code, where any land or part thereof specified in sub-section (1) of this section is, surrounded by or, in between, or on the edges and necessary for public purpose, the plot or plots of land purchased, acquired or resumed for public purpose, the State Government may change the class of such public utility land, and if class of such public utility land is changed, any other land equivalent to or more than that of the aforesaid public utility land, shall be reserved for the same purpose in the same or any nearby Gram Panchayat or local authority, as the case may be or the State Government may permit the exchange thereof under Section 101 of this Code in the manner prescribed:
Provided that the class of any public utility land may be changed only in exceptional cases on such terms and conditions, as may be prescribed. The reason for changing the class of public utility land shall be recorded in writing.] (3) The State Government, while changing the class of the land or permitting the exchange of the same under Section 101 of the Code, shall consider the location, public utility and suitability of the land proposed to be reserved or exchanged.
(4) If class of land is changed under sub-section (2) of this section, the Collector shall order the record of rights (Khatauni) and the map to be corrected accordingly.
Explanation. - The expression 'public purpose', in sub-section (2) of this section means, mutatis mutandis, 'the public purpose' as defined in clause (za) of Section 3 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act No. 30 of 2013).]
10. The perusal of Section 76 (dd) fully demonstrate that even an asami in possession of the land entitled to be recorded as bhumidhar, if, the land is not covered under Section 77 of U.P. Revenue Code 2006.
11. This Court in case reported in (2018) 138 RD 68, Gangadeen vs. State of U.P. and others has considered the scope of Section 76 (1) (dd) of the U.P. Revenue Code 2006. Paragraph No. 7 of the judgment rendered in Gangadeen (supra) will be relevant for perusal which is as under:-
"7. As per clause (dd) of Sub-section (1) of the Section 76, every person who was an asami in possession of land not covered by section 77 of the Code, immediately before the date of the commencement of the Code and had been recorded as such in class-3 of the annual register (khatauni) of 1407 Fasli 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 bhumidhar by or under the Code. The land in question is not covered by Section 77 of the Code. Undisputedly, the name of the petitioner was continued to be recorded in the annual register (khatauni) till 1411 to 1416 Fasli. Thus, it is undisputed that the name of the petitioner was recorded in class-3 in the annual register (khatauni) of 1407 Fasli and, therefore, the petitioner is entitled to the benefit conferred under clause (dd) of Sub-section (1) of the Section 76 of the Code. Therefore, both the impugned orders deserve to be quashed and the case of the petitioner deserves to be considered in the light of the provisions as afore-quoted."
12. In the instant matter, the plot in question was recorded as banjar before making allotment in favour of petitioners' father, which is not covered under Section 77 of the U.P. Revenue Code 2006 as such, right of the petitioners to be recorded as bhumidhar with transferable right in respect to plot in question cannot be rejected in any manner.
13. The perusal of the revenue entry as well as the order passed by Nayb Tehsildar/Sub-Divisional Officer fully demonstrate that after grant of lease in favour of petitioners' father in the year 1973, petitioners' father was initially recorded as sirdar and later on, he was recorded as bhumidhar with non-transferable right. The period of ten years from the date of giving right to the petitioners' father as bhumidhar with non-transferable right had already completed as such, petitioners' father was entitled to be recorded as bhumidhar with transferable right, but authority has illegally ordered to record the name of petitioners father as asami (class-3 category) in respect to the plot in question.
14. Considering the entire facts and circumstances of the case, the impugned order dated 26.12.1989 passed by Sub-Divisional Magistrate, order dated 08.05.1997 passed by Additional Commissioner and the order dated 01.03.2017 passed by Board of Revenue cannot be sustained in the eye of law as such, the same are hereby set aside.
15. The writ petition stands allowed.
16. Respondent No. 2/Sub-Divisional Magistrate, Chunar, District Mirzapur, is directed to take immediate steps for recording the name of the petitioners as bhumidhar with transferable right in respect to plot in question within period of six weeks from the date of production of certified copy of this order before him as more than 48 years period have passed from the date of making allotment of the plot in question in favour of petitioners' father.
Order Date :- 19.3.2024 v.k.updh.