Ashfaq v. Assistant Custodian General — 1966 DIGILAW 107 (ALL)

JUDGMENT G. C. Mathur, J. - The dispute in this case relates to plot No. 218 situate in village Shahbiswa, Tahsil Ghaziabad, district Meerut. Admittedly, the father of the petitioner was recorded as an occupant of this plot in 1356 Fasli and he became an Adhivasi of the plot under Sec. 20 of the U.P. Zamindari Abolition & Land Reforms Act. After the death of the petitioner's father, the petitioner has stepped in his shoes. On December 26, 1957, the petitioner deposited twenty times the rent and claimed that, under paragraph 4 of Schedule V of the U.P. Zamindari Abolition and Land Reforms Act, he became a Bhumidhar for this plot. Respondent Nos. 3 and 4 were recorded as occupiers of this plot in 1363 Fasli. They deposited twenty times the rent on September 27, 1957, and claimed to have become Bhoomidars under paragraph 4-B of Schedule V. On September 6, 1957, the Assistant Custodian (Judicial) conferred Bhoomidhari rights on respondent Nos. 3 and 4 on condition that they deposited a sum of Rs. 140/- before December 31, 1957. Against this order, the petitioner filed a revision. The Assistant Custodian General allowed the revision and remanded the case to the Assistant Custodian. The Assistant Custodian again heard the parties and by order dated November 7,1960, he held that respondent Nos.3 and 4 had validly acquired Bhoomidari rights and that the petitioner was not entitled to acquire Bhoomidari rights in this plot. The decision seems to have been based on the fact that respondent Nos. 3 and 4 had deposited twenty times the rent earlier than the petitioner. Against this order, the petitioner again filed a revision but the revision was dismissed on January 11,1961. Thereupon he filed this writ petition, praying that the order of the Assistant Custodian (Judicial) dated November 7, 1960 and the order of the Assistant Custodian General dated January 11, 1961, be quashed. 2. Paragraph 4 of Schedule V provides that a person, who has become an Adhivasi under Clause (b) of Sec. 20 of any land which is evacuee property, shall become a Bhoomidar of such land if he deposits an amount equal to twenty times the rent before December 31, 1957, or such further date as the State Government may specify in that behalf. There is no dispute that the petitioners father had become an Adhivasi under Cl. There is no dispute that the petitioners father had become an Adhivasi under Cl. (b) for Sec. 20 of the Act and that, after his fathers death, the petitioner succeeded to the Adhivasi rights. There is also no dispute that the petitioner deposited twenty times the rent, before the specified date. It would, therefore, appear that, under para 4, the petitioner was entitled to become a Bhoomidar. Para. 4-B for Schedule V provides that any person recorded as occupier of any evacuee land in the khasra or khatauni for the year 1363 Fasli shall become a Bhoomidar of tire land if he deposits twenty times the rent before December 31, 1957, or such further date as the State Government may specify. Again, it is not disputed that respondents Nos. 3 and 4 were recorded as occupiers of the plot in dispute in 1363 Fasli. It is also not disputed that they deposited twenty times the rent before the specified date. The authorities below have, on the ground that respondent Nos.3 and 4 deposited twenty times the rent earlier than the petitioner, held that they have become Bhoomidars and that the petitioner is not entitled to these rights. Learned counsel for the petitioner has contended that, so far as the plot in dispute was concerned paragraph 4-B of Schedule V was not applicable to it and the authorities below had no jurisdiction to confer Bhoomidari rights on respondent Nos. 3 and 4 in respect of this plot. His contention is that the rights under paragraph 4-B can be acquired only in respect for "evacuee land" and that, in view of Explanation (iii) to this paragraph, the plot in dispute was not "evacuee land". It cannot be disputed that paragraph 4-B applies only to "evacuee land". Explanation (iii) to this paragraph reads thus: - "Explanation- In this paragraph evacuee land means land which is evacuee property, but does not include land - (i).................... (ii) ....... (iii) in which rights of a bhumidhar may be acquired under Secs.16 and 20 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1960, as modified by Schedule V thereof." 3. It is to be noticed that this explanation uses the words "may be" and not the words "have been." It is, therefore, clear that, if the petitioner could acquire Bhoomidari rights in respect of this plot under Secs. 16 and 20 read with para. It is to be noticed that this explanation uses the words "may be" and not the words "have been." It is, therefore, clear that, if the petitioner could acquire Bhoomidari rights in respect of this plot under Secs. 16 and 20 read with para. 4 of Schedule V for the U.P. Zamindari Abolition and Land Reforms Act, then this plot would not be "evacuee land." It would not be correct to say that this explanation contemplates a case where Bhoomidari rights have already been acquired by some one under the provisions mentioned therein. I am of the opinion that land, in respect of which Bhoomidari rights are capable of being acquired under paragraph 4 of Schedule V, is not "evacuee land" for purposes of Paragraph 4-B and that no Bhoomidari rights can be acquired or conferred in respect of such land under para. 4-B. The petitioner was entitled to acquire Bhoomidari rights in this plot under para. 4 of Schedule V and as such the plot was not "evacuee land." That being the position, the authorities had no jurisdiction or power to confer Bhumidari rights on respondent Nos. 3 and 4 in respect of plot in dispute. Their order conferring Bhumidari rights on respondent Nos. 3, 4 in respect of plot No. 218 are without jurisdiction and in contravention of the express provisions of law and are liable to be quashed. At, the same time, it is clear that the petitioner has fulfilled all the requirements of para. 4 of Schedule V and he was entitled to become a Bhoomidar of this plot. 4. I accordingly allow this writ petition, quash the order of the Assistant Custodian (Judicial), Meerut, dated November 7, 1960, and the order of the Assistant Custodian General, E. P., U. P., Lucknow, dated January 11, 1961, and direct that the case be disposed of in the light of the observations made above. The petitioner will be entitled to his costs from the respondents. Petition allowed.