Jagner Singh v. State of U. P. — 1967 DIGILAW 362 (ALL)

JUDGMENT Satish Chandra, J. - This and the many connected writ petitions raise the same question. The petitioners in all these writ petitions claim that they have become sirdars under the provisions of the U.P. Zamindari Abolition and Land Reforms Act. They pray that the notice issued by the Executive Engineer, respondent No. 2, for dispossessing the petitioners with effect from April 1, 1967, be quashed. The various learned counsel in these writ petitions are agreed that the facts in all the petitions are generally the same and they can all be decided" by a common judgment. Writ Petition No. 795 of 1967, filed by Sri Jagner Singh, has been taken as the leading case. 2. It appears that in February 1950 the Executive Engineer, Northern Division, Ganges Canal, Roorkee, auctioned some canal land for being given on lease for agricultural purposes. The petitioner being the highest bidder he was given a lease of 26 acres for Rs. 1725/-. The Executive Engineer executed a deed of lease in favour of the petitioner for a period of six years commencing from April 1, 1950. After the expiry of this lease, a fresh lease was executed for a further period of five years beginning from April 1, 1956, which related to a smaller area, on payment of a lesser amount of rent. The second respondent executed a fresh lease on February 2, 1962, for a period of five years commencing from April 1, 1962, in favour of the petitioner. This lease covered yet a smaller area of land. The rent was also reduced further Under this lease approximately 9 acres of land was given to the petitioner. In December, 1966, the petitioner received a notice from the Executive Engineer that the petitioner's lease would come to an end on March 31, 1967. The petitioner may not raise any crop which may not be reaped by March 31, 1967. He intimated that the State Government intends to give this land to Harijans and landless labourers after April 1, 1967. The petitioner made representations to the Executive Engineer against this notice. He also submitted a representation to the Irrigation Minister of the State. The State Government has not acceded to the petitioner's request to continue the lease in his favour. 3. The petitioner made representations to the Executive Engineer against this notice. He also submitted a representation to the Irrigation Minister of the State. The State Government has not acceded to the petitioner's request to continue the lease in his favour. 3. The petitioner stated that when he came here with a view to file a writ petition, he was advised by his counsel that in view of the notification No. 1780/I.C./277/C-1953 dated March 31, 1955, the petitioner has acquired the status of a sirdar in respect of the land in dispute. The Government, hence, has no interest left in the land. The notice issued by the second respondent was void and unenforceable. It was prayed that this notice be quashed. 4. The notification dated March 1, 1955, stated that :- "In exercise of the powers conferred by clause (b) of sub-section (1) of Section 2 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1951), the Governor, Uttar Pradesh, is pleased to direct that the said Act shall, with effect from April 1, 1955, apply to estates or parts thereof which are owned by the State Government and administered as State property under the control of the Land Reforms Commissioner or which are nazul and are under the management of a Collector and are situate in the districts specified in Schedule I....... " 5. In the schedule the districts of Muzaffarnagar and Saharanpur, where the land in dispute in the present writ petitions are situate, are included. This notification applies to estates owned by the State Government and administered under the control of the Land Reforms Commissioner or if the land is nazul, it is under the management of a Collector. For the petitioner it was contended that the land in dispute was administered under the control of the Land Reforms Commissioner. For the respondents it was urged that the land is within canal boundaries and is controlled and managed by the Irrigation Department. The notification set up by the petitioners is not applicable to it. 6. The petitioner has controverted this in the rejoinder affidavit. The basic question that needs to be determined is whether the land in dispute is within canal boundaries or whether it is managed or controlled by the Land Reforms Commissioner or by the Collector. The notification set up by the petitioners is not applicable to it. 6. The petitioner has controverted this in the rejoinder affidavit. The basic question that needs to be determined is whether the land in dispute is within canal boundaries or whether it is managed or controlled by the Land Reforms Commissioner or by the Collector. In paragraph 1 of the petition the land in dispute is stated to be canal land. There is no averment in the petition that the land is not within the canal boundaries or that it was controlled or managed by the Land Reforms Commissioner or the Collector. In the counter affidavit initially filed the petitioner's allegation that the lease was in respect of canal land was accepted. It was in paragraphs 4 and 5 further stated that the subsequent leases also related to canal land. These averments of the counter affidavit were not controverted in the rejoinder affidavit nor was it stated there that the land was managed by the Land Reforms Commissioner or controlled by the Collector. In the supplementary counter affidavit it was specifically stated that the land in dispute lay within the canal boundaries and was under the management of the Irrigation Department of the State Government. It was also stated that the land under the control of the Irrigation Department was not under the control of the Land Reforms Commissioner or the Collector. The notification of March 31, 1955, relied upon by the petitioner, was not applicable to the land in dispute. At this stage, the petitioner in his supplementary rejoinder affidavit stated that it was incorrect to say that the land was under the control of the Irrigation Department, but that it was under the control of the Land Reforms Commissioner. The respondents filed a second supplementary counter affidavit in which it was stated that the land in dispute was within canal boundaries and was meant for use of canal purposes. It was managed and controlled by the Canal Department and not by the Land Reforms Commissioner or the Collector. Paragraph 674 of the Revenue Manual relied upon by the petitioner was in respect of land used for purely agricultural purposes. The land in dispute was acquired for canal purposes, namely for constructing canals, channels, embankments, structures, water courses, drainage works which include dams, weirs and other works for the protection of land from floods or from erosion. Paragraph 674 of the Revenue Manual relied upon by the petitioner was in respect of land used for purely agricultural purposes. The land in dispute was acquired for canal purposes, namely for constructing canals, channels, embankments, structures, water courses, drainage works which include dams, weirs and other works for the protection of land from floods or from erosion. The land was not meant purely for agricultural purposes. The leases in respect of the land were granted as a temporary arrangement and as soon as the land is required for canal purposes the agricultural use would be suspended immediately. To this a second supplementary rejoinder affidavit was filed. There it was alleged that the land in question has been used purely for agricultural purposes for the last 50 years. The notifications under the Land Acquisition Act, under which the land was alleged to have been acquired, do not relate to the villages where the land in dispute is situate. A new allegation was for the first time made in this rejoinder affidavit, that the land in dispute was under the control of the Land Reforms Commissioner and the Irrigation Department was managing it according to the directions of the Land Reforms Commissioner; and paragraph 674 of the Revenue Manual will apply to the land in question. 7. This paragraph states that "the land used for purely agricultural purposes, though it may hitherto have been classed as nazul, shall be placed as Government property under the control of the Land Reforms Commissioner, to whom all references on the subject will be submitted". The exception to this rule states that "this rule shall not apply to intra-municipal nazul situated within Lucknow and Faizabad-cum-Ajodhya Municipalities". It will be seen that this paragraph gives direction in respect of a land which was primarily classed as nazul but was being used purely for agricultural purposes. There is no allegation that the land in dispute was nazul land. There is no satisfactory proof that the Land Reforms Commissioner was controlling the land in dispute. No action or order by the Land Reforms Commissioner has been cited to establish this contention. The respondents denied this allegation. According to them the land in dispute is under the control and management of the Irrigation Department. 8. There is no satisfactory proof that the Land Reforms Commissioner was controlling the land in dispute. No action or order by the Land Reforms Commissioner has been cited to establish this contention. The respondents denied this allegation. According to them the land in dispute is under the control and management of the Irrigation Department. 8. The lease in favour of the petitioner was granted by the Governor of Uttar Pradesh through the Executive Engineer, Northern Division, Ganges Canal, Roorkee (vide a copy of the lease dated July 12, 1962 filed by the petitioner). Under the lease the rent is payable by the petitioner to the Executive Engineer. The impugned notice has been issued by the Executive Engineer. Under paragraph 4 of the lease the petitioner could not erect any well or building on the land in dispute except without the previous consent in writing of the Executive Engineer. On the expiry of the term the petitioner had to yield possession to the Executive Engineer. If the petitioner did not want to cultivate the land in any particular year he could under paragraph 10(5) of the lease, do so only with the permission of the Executive Engineer. Similarly, the Executive Engineer had the power to terminate the lease for reasons mentioned in the lease-deed. A perusal of the deed of lease, therefore, leads to the inevitable conclusion that the Executive Engineer of the Irrigation Department was in control of the land in dispute. The Land Reforms Commissioner or the Collector were nowhere in the picture. The position, therefore, is that the petitioner's contention, that the land was under the control of the Land Reforms Commissioner or the Collector, is a disputed question of fact. The petitioners have not adduced any satisfactory material to establish this fact. The materials on the record go to suggest that the Irrigation Department was managing this land, and the Land Reforms Commissioner or the Collector have no control over it. 9. For the petitioner it was urged that the land was not meant for canal purposes. It was being used for agricultural purposes by the petitioner since 1950 and it was put to the same use previously also for the last 50 years. The impugned notice shows that the land will be continued to be put to agricultural use by being given to landless labourers and Harijans. It was being used for agricultural purposes by the petitioner since 1950 and it was put to the same use previously also for the last 50 years. The impugned notice shows that the land will be continued to be put to agricultural use by being given to landless labourers and Harijans. All these things show that it was not meant for canal purposes. This case was not taken up in the petition, where on the other hand it was stated that the land in dispute was canal land. The respondents have clearly stated that the land is within canal boundaries and is meant for canal purposes. In my opinion, paragraph 10(2) of the lease-deed clinches the issue. There it is stated :- "That if at any time during the period of this grant the grantor requires the said land for canal purposes the grantor may resume possession of the said land or portion thereof upon giving 30 days notice in writing in that behalf to the grantee under the hand of the Executive Engineer and upon paying to the grantee compensation for such seeds as may be sown or such crops as may be standing at the date of such notice on the land of which possession shall be resumed as aforesaid; the value of such seeds or crops to be determined by the Collector of Muzaffarnagar District whose valuation shall be final." 10. This shows that the land was meant and kept for canal purposes, but since it was not immediately needed for those purposes it was leased out for being cultivated. The agricultural use was hence temporary and was to last only till the land was required for canal purposes. In my opinion paragraph 674 has no application to the land in dispute. The land was within canal boundaries. It was not under the control or management of the Land Reforms Commissioner or the Collector. The notification dated March 31, 1955, was not attracted to the land in dispute. The petitioner acquired no rights in virtue' of that notification. Under Section 132 of the U.P. Zamindari Abolition and Land Reforms Act sirdari rights cannot accrue in lands included within railway or canal boundaries. On the other hand Section 133-A of the U.P. Zamindari Abolition and Land Reforms Act applies to the petitioner. The petitioner acquired no rights in virtue' of that notification. Under Section 132 of the U.P. Zamindari Abolition and Land Reforms Act sirdari rights cannot accrue in lands included within railway or canal boundaries. On the other hand Section 133-A of the U.P. Zamindari Abolition and Land Reforms Act applies to the petitioner. Under this provision every person to whom land has, been let out by the State Government shall be called a Government lessee in respect of such land and shall, notwithstanding anything to the contrary contained in this Act, be entitled to hold the same in accordance with the terms and conditions of the lease relating thereto". Thus, the terms and conditions of the lease, under which the petitioner was holding the land, will have an over-riding effect. The petitioner will not acquire any rights, contrary to them. Under the lease the petitioner was bound to quietly yield possession to the grantor on the expiry of its term on March 31, 1967. The impugned notice was not contrary to law. 11. To complete this judgment, another submission made on behalf of the respondents may be noticed. It was urged that the lease in favour of the petitioner was made under the Crown Grants Act, 1895 (later called as the Government Grants Act, 1895). In view of the Government Grants (U.P. Amendments) Act, No. XIII of 1960, the petitioner will not acquire any rights under or in virtue of the U.P. Zamindari Abolition and Land Reforms Act. The Government Grants Act was amended by the Government Grants (U.P. Amendment) Act No. IX of 1959. Section 2 of this amending Act substituted the original Sections 2 and 3. The new sections were as follows :- "2. The Government Grants Act was amended by the Government Grants (U.P. Amendment) Act No. IX of 1959. Section 2 of this amending Act substituted the original Sections 2 and 3. The new sections were as follows :- "2. Certain laws not to apply to Government Grants.-Nothing contained in the Transfer of Property Act, 1882 (Act IV of 1882), the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act I of 1951), the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (U.P. Act IX of 1957), the Jaunsar-Bawar Zamindari Abolition and Land Reforms Act, 1956 (U.P. Act XI of 1956), the U.P. Tenancy Act, 1939 (U.P. Act XVII of 1939), or any other law for the time being in force, shall apply or be deemed to have ever applied to any grant or transfer of land or of any interest therein already made or to be made by, or on behalf of, the Government to, or in favour of, any person; and every such grant or transfer shall be construed and shall take effect as if the said laws had not been enacted. 3. Government Grants to take effect according to their tenor.-All provisions, restrictions, conditions and limitations contained in any such grants or transfer shall be valid and take effect according to their tenor; anything contained in any of the laws mentioned in Section 2 or any other law for the time being in force or a decree or direction of a court of law to the contrary notwithstanding." 12. It was then felt that Section 2 as amended had the effect of saving the grant of an agricultural leave by or on behalf of the Government from the operation not only of the Acts mentioned therein, but also of any other law, including the law for imposition of ceiling on land holdings, that might be made in future. It was also apprehended that Section 2 may undo the vesting of estates of Government grantees under Section 4 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. With a view to remove such apprehensions and to put the U.P. Imposition of Ceiling on Land Holding Bill, 1959, when enacted, beyond the purview of the Government Grants Act. The Government Grants Act was amended again in 1960 by the Government Grants (U.P. Amendment) Act XIII of 1960. With a view to remove such apprehensions and to put the U.P. Imposition of Ceiling on Land Holding Bill, 1959, when enacted, beyond the purview of the Government Grants Act. The Government Grants Act was amended again in 1960 by the Government Grants (U.P. Amendment) Act XIII of 1960. Section 2 of the 1960 Amendment Act repealed and re-enacted Sections 2 and 3 of the Government Grants Act, 1895. Section 2 as re-enacted is as follows :- "2. (1) Transfer of Property Act, 1882, not to apply to Government Grants.-Nothing contained in the Transfer of Property Act, 1882 (Act IV of 1882), shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein, heretofore made or hereafter to be made, by or on behalf of the Government to or in favour of any person whomsoever; and every such grant and transfer shall be construed and take effect as if the said Act had not been passed. (2) U.P. Tenancy Act, 1939 and Agra Tenancy Act, 1926 not to affect certain leases made by or on behalf of the Government.-Nothing contained in the U.P. Tenancy Act, 1939 (U.P. Act XVII of 1939) or the Agra Tenancy Act, 1926(U.P. Act III of 1926), shall affect, or be deemed to have ever affected any rights, created, conferred or granted, whether before or after the date of the passing of the Government Grants (U.P. Amendment) Act, 1960, by leases of land by, or on behalf of the Government in favour of any person; and every such creation, conferment or grant shall be construed and take effect, notwithstanding anything to the contrary contained in the U.P. Tenancy Act, 1939 (U.P. Act XVII of 1939), or the Agra Tenancy Act, 1926 (U.P. Act III of 1926)." 13. By Section 3 of the Amending Act, 1960, the U.P. Act IX of 1959, was repealed with effect from the date of its enforcement. This section further said that U.P. Act IX of 1959 shall always be deemed to have been so repealed as if it had no force and effect at any time whatsoever; anything to the contrary in the U.P. General Clauses Act, 1904 (U.P. Act I of 1904) or any other law for the time being in force notwithstanding. The result was as if U.P. Act IX of 1959 never existed. The result was as if U.P. Act IX of 1959 never existed. Section 2 of the Government Grants Act, as it now stands, excludes the applicability of the Transfer of Property Act, 1882, as well as the U.P. Tenancy Act, 1939, and the Agra Tenancy Act, 1926, to lands granted or transferred by the State Government under the Government Grants Act. Under Section 3, (after its amendment in 1960) the provisions and conditions of the grant were to continue to be effective according to their tenor notwithstanding any decree of a court of law or a rule of law, statute or enactment of the Legislature. The proviso, to Section 3, however, saved the effect of any enactment relating to the acquisition of property, land reforms or imposition of ceiling on agricultural land from the effect of Section 3; that is to say, the provisions and conditions etc. of a lease made under the Government Grants Act will be subject to any enactment relating to, inter alia, land reforms. This clause thus brings in the U.P. Zam. Abolition and Land Reforms Act, because that was an Act, as its preamble shows, passed inter alia, to reform the law relating to land tenure. U.P. Zamindari Abolition and Land Reforms Act would hence apply to such lands. The proprietary interests, if any, would be liable to be divested under Section 4 of that Act and the consequences mentioned under Section 6 will also ensue; but, notwithstanding all this, the petitioners do not gain anything. Under Section 133-A of the Act persons holding under a lease from the Government are to be called Government lessees and are entitled to hold the land only in accordance with the terms and conditions of the lease. They do not get any other right or interest under the other provisions of the Act. 14. In the result, the petition fails and is dismissed, but, under the circumstances, without any order as to costs.