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1962 DIGILAW 63 (ALL)

Jokhan v. Board of Revenue, Allahabad

1962-03-05

W.BROOME

body1962
JUDGMENT W. Broome, J. - This Writ petition is directed against orders passed in appeal by the Additional Commissioner of Gorakhpur on 16-11-1956 and confirmed in second appeal by the Board of Revenue on 20-3-1957, dismissing the suit filed by the petitioner under Section 202 of the Zamindari Abolition and Land Reforms Act for the ejectment of Jagmohan (opposite party No. 2) from a certain plot. 2. The plaintiff claimed that he was the Sirdar of the land in suit and had let it out to the opposite party after he had become a "disabled person" within the meaning of Section 157 of the Zamindari Abolition and Land Reforms Act by losing one of his hands in an accident. He prayed for the ejectment of the opposite party as an Asami, asserting that he wanted to bring the land under his personal cultivation. 3. The trial court accepted the contentions of the plaintiff and decreed the suit. But in appeal the Additional Commissioner held that even though the plaintiff had only one hand, he could not be held to be a "disabled person" because he was otherwise healthy and sound and was in a position to supervise the cultivation of the plot by servants, relations or hired labour. The Board in second appeal agreed with the view expressed by the Additional Commissioner and the suit accordingly stands dismissed. 4. Sec. 157 of the Zamindari Abolition and Land Reforms Act enumerates the following categories of bhumidhars and sirdars who are to be considered "disabled" and who are therefore entitled to let out their holdings: (a) an unmarried woman, or if married, divorced or separated from her husband or whose husband suffers from any of the disqualifications mentioned in Cl. (c) or (d), or a widow; (b) a minor whose father suffers from any of the disqualifications mentioned in Cl. (c) or (d) or has died; and (c) a lunatic or an idiot; (d) a person incapable of cultivating by reason of blindness, or other physical infirmity; (e) prosecuting studies in a recognised institution and does not exceed 25 years in age and whose father suffers from any of the disqualifications mentioned in Cl. (c) or (d) or has died; (f) in the Military, Naval, or Air service of the Indian Dominion; or (g) under detention or imprisonment. The petitioner claims that his case falls under Cl. (c) or (d) or has died; (f) in the Military, Naval, or Air service of the Indian Dominion; or (g) under detention or imprisonment. The petitioner claims that his case falls under Cl. (d), as he is "incapable of cultivating by reasons of . . . physical infirmity." But the question is what is meant here by `cultivating.' Does it only mean tilling the soil with one's own hands or does it include getting the soil tilled by hired labour etc. under one's personal supervision? 5. There are various degrees of physical infirmity. On the one hand we have persons who are blind or paralysed or so crippled that they cannot even go to the fields and supervise cultivation; while on the other hand there are those who are afflicted with some lesser degree of disablement, which will not prevent them from going to the fields and supervising the work there but will preclude them from doing the work with their own hands. According to the view of the Additional Commissioner and the Board of Revenue, only those belonging to the former class can be permitted to claim that they are "incapable of cultivating," so as to be entitled to the privilege granted by Sec. 157. But the petitioner maintains that the words "incapable of cultivating" should be interpreted in the wider sense, to include the latter category as well, to which he himself belongs. 6. There has been some divergence of opinion in the Board of Revenue as to which interpretation should be adopted; but the accepted view of the Board since 1958 seems to be that in order to be "incapable of cultivating," a person must be incapable not only of tilling with his own hands but also of super-vising the tilling of the land by hired labour or servants (vide the majority decision in Abdul Shakoor Khan v. Malkhan Singh, 1958 RD 169 : 1958 ALJ 131 (Rev.). I see no reason to hold that this view is patently erroneous. Indeed. It seems to me to be in conformity with the general scheme of Sec. 157. The persons enumerated in Cls. I see no reason to hold that this view is patently erroneous. Indeed. It seems to me to be in conformity with the general scheme of Sec. 157. The persons enumerated in Cls. (c), (e), (1) and (g) of this section are all persons who undeniably suffer from a total disability and are not in a position even to supervise cultivation of their land by others, either because they lack the mental capacity to do so or because they cannot regularly visit their fields by reason of their being detained in school, in the armed forces or in prison. Women and minors, who are dealt with in Cls. (a) and (b), may also be considered totally disabled, being generally speaking incapable of supervising cultivation by others. And the only specific disability dealt with in Cl. (d), viz. blindness, is of a similarly total nature. In the circumstances it is not unreasonable to interpret the "other physical infirmity" referred to in Cl. (d) as including only such infirmities as result in total disablement and prevent the person concerned not only from cultivating with his own hands but also from supervising the cultivation of his fields by hired labour or servants. 7. In the circumstances I decline to interfere with the orders passed by the Additional Commissioner and by the Board of Revenue in this case and dismiss this petition with costs to the contesting defendant.