Allahabad High Court
Brahmanand And Others vs State Of U.P. And Others on 10 July, 2019
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 54 Case :- WRIT - C No. - 129 of 2013 Petitioner :- Brahmanand And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Anurag Sharma Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.
1. Rejoinder affidavit filed today is taken on record.
2. By means of the present petition under Article 226 of the Constitution the petitioners have challenged the order passed by the Sub-Divisional Magistrate, Meerut dated 6th April, 2011 rejecting the application for settlement of land with the petitioner's father and consequently with them under Section 122-B (4-F) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 as well as the order dated 29th March, 2012 passed by the Additional Commissioner (Admit), Meerut Division Meerut in revision No.46/11-12 under Section 333 of U.P. Zamindari Abolition and Land Reforms Act, 1950.
3. Briefly stated the facts are that one Sita Ram- father of the petitioner Nos. 1, 2 and 3 and Khem Chandra- father of the petitioner Nos. 4, 5 and 6 and Deep Chandra were granted lease way back in the year 1996 over the land falling Khasra No.500/3 area 1 Bigha 3 Biswa, Khasra No. 452/1 area 1 Bigha and Khasra No.- 563/4 area 0.164 hectare respectively. Sita Ram and Khem Chandra moved an application before the Sub-Divisional Magistrate, Meerut claiming settlement under Section 122-B (4-F) of the U.P.Z.A. & L.R. Act, 1950 that the land should be treated to have settled with them in view of Section 122-B (4-F) of the U.P.Z.A. & L.R. Act, 1950 as it then stood with the cut of date as 30th June, 1985. However, it appears that the land was later on brought into the territorial limits of Nagar Nigham, Meerut vide notification dated 12th September, 1987. The Sub-Divisional Magistrate vide order dated 29th May, 2004 held that he had no authority to exercise such power in respect of the land falling within the territorial limits of of Nagar Nigam, Meerut under Section 122-B (4-F) of the U.P.Z.A. & L.R. Act, 1950.
4. Aggrieved against the said order lease holder preferred revision before the Additional Commissioner, Meerut Division, Meerut who allowed the revision and remitted the matter to the Sub-Divisional Magistrate with the observations that settlement of land under the relevant provision of law was to take place in terms of possession of lease holder on a cut of date and if subsequently the land has been brought into the municipality limits with the extension of municipality concerned, by virtue of fiction of law a land would stand vested. Thus, the authority concerned was directed to revisit the matter in the light of the observations made in the order dated 29th June, 2010. However, since Sita Ram had died on 12th October, 2010 while the revision was still pending before the Additional Commissioner, Meerut and the proceedings were continued by the heirs with the substitution of their name in place of late Sita Ram and also Khem Chandra died on 12th September, 2009 proper applications were moved by the heirs before the Sub-Divisional Magistrate, Meerut to substitute their names in place of deceased lease holders, the Sub-Divisional Magistrate, Meerut in its ultimate findings held that if that land is to vest on the basis of possession, such case cannot be continued by the heirs and, therefore, on the date of substitution the petitioner cannot be treated to be in possession under Section 122-B (4-F) of the U.P.Z.A.& L.R. Act, 1950. Even otherwise, it was held that the land fell within the territorial limit of Nagar Nigam, Meerut and so, the benefit of Section 122-B (4-F) of U.P.Z.A.& L.R. Act, 1950 cannot be given and thus, the Sub-Divisional Magistrate, Meerut vide order dated 6th April, 2011 rejected the claim of the petitioner.
5. The revision was filed by the present petitioners before the Additional Commissioner and the Additional Commissioner has concurred with the findings returned by the Sub-Divisional Magistrate, Meerut and rejected the claim of the petitioner vide order dated 29th March, 2012. It appears that an identically placed lease holder Deep Chandra instituted some separate proceedings in the year 1999 before the Assistant Collector and the same came to be dismissed on 8th December, 1999 against which his revision also came to be rejected on 15th February, 2000 but ultimately board of revenue allowed the revision and directed them to be rendered as Bhumidhar of the land with non transferable rights vide order dated 11th April, 2005 in second appeal No.- 64/99-2000 and on the basis of which he has come to be recorded in the relevant revenue record as bhumidhar with non-transferable rights vide order of the District Magistrate, Meerut dated 16th January, 2007. The revenue extract that has been brought on record is annexed as Annexur-4 to the writ petition and relevant findings to that effect have come to be made in paragraph 17 of the writ petition.
6. The argument advanced, therefore, is not only the petitioners have been wrongly denied the benefit under Section 122-B (4-F) of the U.P.Z.A.& L.R. Act, 1950 but they have also been discriminated in the matter of settlement of land under the said section.
7. Per contra, the argument advanced by the learned Standing Counsel is that the powers of the authorities created and designated under the U.P.Z.A.& L.R. Act, 1950 cannot be exercised by them. Once the territorial limits falling in the rural area have come to be notified in municipal area or in the Nagar Nigam, Meerut and, therefore, there is no jurisdictional error in the orders passed by the authorities warranting interference by this Court in the present petition. However, learned Standing Counsel could not dispute the contents of paragraph 17 of the writ petition as they have come to be replied in the paragraph 13 of the counter affidavit without any specific denial regarding the rights conferred by one Deep Chandra. Relevant revenue extracts which have been brought on record have not been disputed. It is, rather, admitted in the counter affidavit sworn by Tehsildar, namely, Deo Raj Singh, Tehsil-Sadar, District- Meerut. The name of Deep Chandra have come to be recorded over the land of which he had been granted lease, as bhumidhar with non-transferable rights.
8. Having heard learned counsel for the parties and having perused the records, this Court finds that interpretation as sought to be given by the authorities to the provision as contained under Section 122-B (4-F) of U.P.Z.A.& L.R. Act, 1950 as it then stood on statute, cannot be approved of. In order to appreciate the legal position emerging out of the incorporation of the said section, the relevant provision is reproduced hereunder:-
"(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 June 30, 1985 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 it shall be deemed that he has been admitted as bhumidhar with non-transferable rights of that land under Section 195."
9. From the bare reading of the aforesaid provisions it is quite explicit that the intendment of the legislature in incorporating said provision was to automatically conferred the rights in respect of the category of lessees who had the possession as on 30th June, 1985 and, therefore, if the tenure holder was living on said date, he would have automatically become entitled to the said benefit. Merely because necessary application has come to be made at a later point of time and tenure holder died leaving behind heirs, the said claim cannot be denied on the ground that on the date application had been moved the original tenure holder had died and that land later on came within territorial of the municipality or Nagar Nigam. The provision clearly indicates that one who was in possession of the land on the relevant date, the land stood settled with the said person conferring upon him with the status of bhumidhar with non-transferable and mere application would have only resulted in necessary correction in the revenue records. So, even if the application is subsequently moved, it cannot be said that the rights would accrue only on the date of the application and in case if the tenure holder died subsequently his heirs shall be denied benefits. The right to the tenure holder accrued in the year 1985 itself as per the provision and subsequent death of the tenure holder would automatically result in the succession of his heirs and right would automatically get transferred to the successors and it cannot be said that the bhumidhari rights even in the category of non transferable rights are not subject to succession and, therefore, in my considered opinion the Sub-Divisional Magistrate manifestly erred in rejecting the application on the ground that the heirs would not have been permitted to step into the shoes to claim rights under the relevant provision of law.
10. Besides above, once the Additional Commissioner had remitted the matter with clear obsrvation in the order of remand that the claim would not be denied on the ground that subsequently the land had got notified under the Nagar Nigam under the U.P. Nagar Nigam Adhiniyam Act, 1959, it was not open for the Sub-Divisional Magistrate to sit in appeal over the order of the Additional Commssioner and thus, the Court is of definite opinion that the authority has clearly exceeded its jurisdiction and authoritiy in making such observation and, therefore, the order passed by the Sub-Divisional Magistrate on that count also cannot be sustained.
11. So far the findings recorded by the Additional Commissioner in the subsequent revision is concerned, as I have already held hereinabove that rights would not get changed merely because the land has subseqently been notified as within the territorial limits of Nagar Nigam Meerut, if the tenure holder was in possession on the cut of date i.e. 30th June, 1985. In my above observation and the view taken by me, I am supported by the judgment of the Apex Court in the case of Manorey v. Board of Revenue 2003 (5) SCC 521, wherein the Supreme Court while dealing with the said provision and its application, vide paragraph 9 of the judgment has held thus:-
"9. Thus, sub-Section (4F) of Section 122B not merely provides a shield to protect the possession as opined by the High Court, but it also confers a positive right of Bhumidhar on the occupant of the land satisfying the criteria laid down in that sub-Section. Notwithstanding the clear language in which the deeming provision is couched and the ameliorative purpose of the legislation, the learned single Judge of the High Court had taken the view in Ramdin Vs. Board of Revenue (supra) (followed by the same learned Judge in the instant case) that the Bhumidhari rights of the occupant contemplated by sub-Section (4F) can only blossom out when there is a specific allotment order by the Land Management Committee under Section 198. According to the High Court, the deeming provision contained in sub-Section (4F) cannot be overstretched to supersede the other provisions in the Act dealing specifically with the creation of the right of Bhumidhar. In other words, the view of the High Court was that a person covered by the beneficial provision contained in sub-Section (4F) will have to still go through the process of allotment under Section 198 even though he is not liable for eviction. As a corollary to this view, it was held that the occupant was not entitled to seek correction of revenue records, even if his case falls under sub-Section (4F) of Section 122B. We hold that the view of the High Court is clearly unsustainable. It amounts to ignoring the effect of a deeming provision enacted with a definite social purpose. When once the deeming provision unequivocally provides for the admission of the person satisfying the requisite criteria laid down in the provision as Bhumidhar with non-transferable rights under Section 195, full effect must be given to it. Section 195 lays down that the Land Management Committee, with the previous approval of the Assistant Collector in-charge of the Sub Division, shall have the right to admit any person as Bhumidhar with non-transferable rights to any vacant land (other than the land falling under Section 132) vested in the Gaon Sabha. Section 198 prescribes "the order of preference in admitting persons to land under Sections 195 and 197". The last part of sub-Section (4F) of Section 122B confers by a statutory fiction the status of Bhumidhar with non transferable rights on the eligible occupant of the land as if he has been admitted as such under Section 195. In substance and in effect, the deeming provision declares that the statutorily recognized Bhumidhar should be as good as a person admitted to Bhumidhari rights under Section 195 read with other provisions. In a way, sub-Section (4F) supplements Section 195 by specifically granting the same benefit to a person coming within the protective umbrella of that sub-Section. The need to approach the Gaon Sabha under Section 195 read with Section 198 is obviated by the deeming provision contained in sub-Section (4F). We find no warrant to constrict the scope of deeming provision. That being the legal position, there is no bar against an application being made by the eligible person coming within the four corners of sub-Section (4F) to effect necessary changes in the revenue record. When once the claim of the applicant is accepted, it is the bounden duty of the concerned revenue authorities to make necessary entries in revenue records to give effect to the statutory mandate. The obligation to do so arises by necessary implication by reason of the statutory right vested in the person coming within the ambit of sub-Section (4F). The lack of specific provision for making an application under the Act is no ground to dismiss the application as not maintainable. The revenue records should naturally fall in line with the rights statutorily recognized. The Sub-Divisional Officer was therefore within his rights to allow the application and direct the correction of the records. The Board of Revenue and the High Court should not have set aside that order. The fact that the Land Management Committee of Gaon Sabha had created lease hold rights in favour of the respondents herein is of no consequence. Such lease, in the face of the statutory right of the appellant, is nonest in the eye of law and is liable to be ignored."
12. In view of the above exposition of law and the facts and circumstances of the present case, the order passed by the Sub-Divisional Magistrate dated 6th April, 2011 and by the Additional Commissioner dated 29th March, 2019 are hereby quashed.
13. The land in question is directed to be settled with the petitioner's father on 30th June, 1985 itself and so, the petitioners are declared to have succeeded the land from their father and the relevant revenue records shall accordingly be corrected. Regarding further rights consequences would follow pursuant to the judgment of this Court.
14. It is a case where the petitioners have been unnecessarily harassed and subjected to forced litigation when otherwise law duly protected their rights and, therefore, the petition deserves to be allowed with cost.
15. The writ petition is, accordingly, allowed with cost which is quantified as Rs.5,000/-.
Order Date :- 10.7.2019 Atmesh