Sardar Ishar Singh v. Board of Revenue — 1968 DIGILAW 341 (ALL)

JUDGMENT Jagdish Sahai, J. - This special appeal is directed against the Judgment of S. N. Singh, J. dated 15-11-1967 dismissing writ Petition No. 4503 of 1966. 2. The Petitioner was granted by respondents Nos. 5 and 6 two leases by the erstwhile Zamindars for constructing a "Karkhana". One lease deed is dated 6th December, 1950 and is in respect of 9 biswas of land for a period of five years. The other one is dated the 30th of July, 1951 and is in respect of 8 biswas of land for a period of four years. The U. P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (hereinafter referred to as the Act) was enforced on 4th of June, 1960. 3. After the enforcement of the Act the revenue authorities were called upon to demarcate agricultural land in the village. The Tashildar reported that the plots covered by the two leases aforesaid should be treated as "agricultural area" The respondents Nos. 5 and 6 objected, on the plea that the plots covered by the two leases mentioned above did not constitute "agricultural area" and should not be so demarcated. The objection came up for hearing before the Additional Commissioner, who upheld it and held that the appellant had acquired no right under the Act and the plots held by him under the leases mentioned above could not be treated as "agricultural area". The appellant unsuccessfully appealed to the Board of Revenue. Thereafter he filed writ petition No. 4503 of 1966 in this Court. 4. The writ petition was heard by our brother S. N. Singh as said earlier. He came to the conclusion that the appellant's case was not covered either by Section 2 (1) (d) or Section 17 (1) (d) of the Act and, therefore, dismissed the writ petition. 5. Mr. Bhargava, who has appeared for the appellant, has strenuously contended before us that the view taken by S. N. Singh, J. is not correct. 6. He came to the conclusion that the appellant's case was not covered either by Section 2 (1) (d) or Section 17 (1) (d) of the Act and, therefore, dismissed the writ petition. 5. Mr. Bhargava, who has appeared for the appellant, has strenuously contended before us that the view taken by S. N. Singh, J. is not correct. 6. The relevant portions of the two deeds read :- Lease deed dated 6.12.1950 fdjk;s nkjh Qjhds nks;e ds 6&12&50 bZ0 ls 5 lky ds fy, okLrs tjs fdjk;k eq0 31%3%0 ekgokj ftldk lkykuk tjs fdjk;k eq0 375 :0 gksrk gS cuke Qjhd nks;e ds fdjk;s ij ns fn;k gSA 1- ---------------A 2- ;g fd Qjhd nks;e vkjkth etdwjdks viuh fdjk;snkjh esa j[ksaxs nwljs dks fdjk;s ij ;k Bsds ij ugha ns ldsaxsA 3- ;g fd coDr [kre E;kn Qjhd nks;e vjkth dks vius dCts fdjk;snkjh ls NksM+ nsaxs vkSj viuk eyok o lkeku o e'khujh oxSjk mBk ys tkosaxsA ;k cjtkeUnh Qjhd vOoy nwljk fdjk;s ukekcny nsaxs o gtkZ [kpkZ csn[kyh o ftEes Qjhd nks;e gksxkA Lease deed dated 30-7-1951 fdjk;snkjh Qjhd nks;e ls bCrnk;s 1%8%51 yxk;r 1%7%55 okftc eqn~nr 4 lky dks cfdjk;k--------------- 1- -----------------A 2- ------------------A 3- ;g fd Qjhd nks;e viuh rjQ ls vkjkth etdwj fdlh nwljs 'k[l dks fdjk;s ;k Bsds ij ugha nsaxsA 4- ;g fd E;kn ds i'pkr Qjhd nks;e vkjkth dh viuh fdjk;snkjh ls NksM+ nsaxs viuk eyok mBk ysaxs ;k cjtkeUnh nwljk fdjk;k ukek cny nsaxsA 7. Mr. Bhargava's contention is that the word "building" in Sections 2 (1) (d) and 17 (1) (b) of the Act includes constructions of a temporary nature also and that by virtue of those two provisions the land leased to the appellant would be 'agricultural area' and he would become a Bhumidhar of the same. 8. Before we examine this submission of the learned counsel, we would like to point out that the Act has been passed with a view to acquire the rights of the intermediaries in "agricultural areas" situate in urban areas in Uttar Pradesh. 8. Before we examine this submission of the learned counsel, we would like to point out that the Act has been passed with a view to acquire the rights of the intermediaries in "agricultural areas" situate in urban areas in Uttar Pradesh. The long title of the Act reads :- "An act to provide for the abolition of Zamindari system in agricultural areas situate in urban areas in U. P. and for the acquisition of the rights, title and interest of the intermediaries between the tiller of the soil and the State in such areas and for the introduction of the land reforms therein." 9. The preamble of the Act reads :- "Whereas it is expedient to provide for the abolition of Zamindari system in agricultural areas situate in urban areas in U. P. and for the acquisition of the rights, title and interest of intermediaries between the tiller of the soil and the State in such areas-And for the introduction of the land reforms therein;" 10. The expression 'urban area' has been defined by Section 2 (15) of the Act which reads :- "2 .................................... (15) "Urban area" means an area which- (a) in the case of the territory mentioned in clauses (a) to (d) of Part A of the Schedule, were, on the 30th day of June, 1954 included in a municipality, a notified area, a town area not being a town area situate in Rampur as defined in the Rampur (administration) order, 1949 or a cantonment under the law applicable thereto, and (b) in the case of the rest of Uttar Pradesh were, on the 7th day of July, 1949, included in a municipality, or a notified area under the provisions of the Municipalities Act, 1916, or in a cantonment under the provisions of the Cantonment Act, 1924, or a town area under the provisions of the U. P. Town Areas Act, 1914." 11.From the definition it follows that the expression 'urban area' means a municipality, a notified area or a cantonment. 12. It is well known that in the areas constituting a Municipal Board or a notified area or a cantonment, there are tracts of cultivable land as also exclusively abadi sites and business quarters. 13. 12. It is well known that in the areas constituting a Municipal Board or a notified area or a cantonment, there are tracts of cultivable land as also exclusively abadi sites and business quarters. 13. As the long title and the preamble of the Act would show the Act does not deal with other areas than agricultural areas falling within a municipality or a notified area or a cantonment. The aim and object of the Act is to acquire the rights of the intermediaries only in the agricultural areas situate in an urban area and not in tracts which do not constitute the agricultural area. 14. Section 2 (1) defines 'agricultural area' in the following words :- " "Agricultural area" as respects any urban area means an area which, with reference to such date as the State Government may notify in that behalf, is- (a) in the possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove; (b) held as a grove by or in the personal cultivation of a permanent lessee in Avadh; or (c) included in the holding of- (i) a fixed rate tenant, (ii) an ex-proprietary tenant, (iii) an occupancy tenant, (iv) a tenant holding on special terms in Avadh, (v) a rent fee grantee, (vi) a grantee at a favourable rate of rent, (vii) a hereditary tenant, (viii) a grove holder, (ix) a subtenant referred to in sub-sec. (4) of Section 47 of the Ti. P. Tenancy Act 1939; or (x) a non-occupancy tenant of land other than land referred to in sub-sec. (3) of Section 30 of the U. P. Tenancy Act, 1939 and is used by the holder thereof for purposes of agriculture or horticulture;" 15. Provided always that land which on the date aforesaid is occupied by buildings not being "improvements" as defined in Section 3 of the U. P. Tenancy Act, 1939, and land appurtenant to such buildings shall not be deemed to be agricultural area. (d) held on a lease duly executed before the first day of July, 1955, for the purposes of erecting buildings thereon; or (e)' held or occupied by an occupier. "Explanation-An area, being part of the holding of a tenant shall not be deemed to have ceased to be agricultural area by reason merely that it has not been used. (d) held on a lease duly executed before the first day of July, 1955, for the purposes of erecting buildings thereon; or (e)' held or occupied by an occupier. "Explanation-An area, being part of the holding of a tenant shall not be deemed to have ceased to be agricultural area by reason merely that it has not been used. during the seven years preceding the commencement of this Act, for raising crops or other agricultural produce." 16. Clearly the object of the Act is to deprive the intermediaries of their rights in agricultural area and to introduce direct relationship between the tiller of the soil and the State Government. Persons, who are occupants of agricultural land in an urban area have been enumerated in clauses (a) to (e) of Section 2 (1) of the Act. Clause (d) of Section 2 (1) of the Act deals with persons in whose favour a lease of Agricultural land has been duly granted before the first day of July, 1955, for the purposes of erecting buildings thereon. 17. Section 17 (1) (b) of the Act reads :- "17 (1) . Subject to the provisions of Sections 16 and 18- ............................... (b) all lands in an agricultural area held on lease duly made before the 1st day of July, 1955, for the purpose of erecting building thereon, shall be deemed to be settled by the State Government with such intermediary, lessee ............ who shall subject to the provisions of this Act, be entitled to take or retain possession as a 'bhumidhar' thereof." 18. In our judgment the words "for the purposes of erecting buildings thereon" occurring in clause (d) of Section 2 (1) of the Act and the words "for the purpose of erecting building thereon" falling in clause (b) of Section 17 (1) of the Act refer to permanent constructions and not to temporary constructions. 19. Our reasons are :- (1) Section 17 (I) (b) provides that the person in whose favour a lease has been granted for constructing a building becomes a Bhumidhar thereof and the land is deemed to have been settled with him by the Government. The idea underlying the provision is that inasmuch as a building is to be constructed on the land, it would no longer be required for agricultural purposes and would cease to be cultural land. The idea underlying the provision is that inasmuch as a building is to be constructed on the land, it would no longer be required for agricultural purposes and would cease to be cultural land. That being the object, the word "building" could refer only to permanent constructions and not to temporary buildings for in the case of temporary buildings, the land does not loose its cultural nature and after the demolition of those constructions it again becomes cultural land. (2) Section 20 of the Act leads to the same conclusion. That provision reads :- "20 Ejectment of sub-lessees in lands held for building purposes- (1) without prejudice to the provisions of Section 64 or any order issued thereunder but subject to the provision of sub-sec. (4) a Bhumidhar of the land referred to in clause (b) of sub-sec. (1) of Section 17, may, within one year from the date of vesting, apply to the Assistant Collector-in-charge of the sub-Division for the ejectment of an asami belonging to the class mentioned in clause (j) of Section 19 on the ground that he wants to use the land held by the asami for the purpose of erecting building thereon. (2) If the application has been duly made and the Assistant Collector is, after such enquiry as may be prescribed, satisfied that the applicant intends to use the land for the purpose of erecting building thereon, order the ejectment of the asami for such land (3) Where an asami has been ejected from the land under sub-sec. (2) , the Bhumidhar shall erect a building thereon within three years of the date of the order of ejectment. ............................" 20. This section provides that for the purpose of constructing a building a Bhumidhar mentioned in Section 17 (1) (b) of the Act can get an asami ejected and once he has got it done, he is under a legal obligation to erect a building on the land within three years from the date of the order of ejectment of the asami. Clearly a Bhumidhar can get an ejectment order only for the purpose of constructing a permanent building. Obviously he cannot get it for the purpose of making a temporary construction only. The legislature has permitted the ejectment of the "Asami" because the land is to be excluded from agricultural purposes. Clearly a Bhumidhar can get an ejectment order only for the purpose of constructing a permanent building. Obviously he cannot get it for the purpose of making a temporary construction only. The legislature has permitted the ejectment of the "Asami" because the land is to be excluded from agricultural purposes. The trend of recent agrarian legislature is not to disturb the occupation of an occupant of agricultural land (See the U. P. Zamindari Abolition and Land Reforms Act, the Tenants Acquisition of Privileges Act and the provisions of the Act) . An exception to this General rule has been made in order to enable a bona fide lessee for building purposes to erect his building. In the case of temporary construction the land could after demolition of those constructions be again utilised for agricultural purposes. But in the case of permanent constructions, the investment being large. no one would demolish them, Section 20 of the Act gives a protection to the Asami, who under certain circumstances becomes a Sirdar. The legislature has permitted the deprivation of his right to become a Sirdar only in order to enable the lessee to construct a building and to use it for that purpose. That being the position, it must be held that the word "building" in Sections 20, 17 (1) (b) and 2 (D (d) of the Act means a permanent building. 21. On facts also Mr. Bhargava has no case. Clearly before the Act came into force, notices under Section 106 of the Transfer of Property Act had been served upon the appellant and suits for his ejectment had already been filed and decreed. The term of one lease expired on 5th of December, 1955 and of the other on 29th of July, 1955, that is, before the Act was passed in 1956 and enforced in these areas in 1960. That being the factual position it cannot be said that the appellant "held" a lease in respect of these land within the meaning of Section 2 (1) (d) or Section 17 (1) (b) of the Act. 22. Mr. G. P. Bhargava, the learned counsel for the appellant, has placed reliance upon Zasir-Ul-Zaman Khan v. Azim Ullah, ILR 28 Alld. 741, Bhaddar v. Khair-Udd-Din Husain and Bhola, ILR 29 Alld. 133 and Gauri Shanker v. Mithai, A.I.R. 1924 Alld. 750. 23. 22. Mr. G. P. Bhargava, the learned counsel for the appellant, has placed reliance upon Zasir-Ul-Zaman Khan v. Azim Ullah, ILR 28 Alld. 741, Bhaddar v. Khair-Udd-Din Husain and Bhola, ILR 29 Alld. 133 and Gauri Shanker v. Mithai, A.I.R. 1924 Alld. 750. 23. The first case is a single Judge decision in which it was held that a Kachcha thatched house may be "a work of a permanent character" within the meaning of Section 60 (b) of the Indian Easements Act, 1882, although the thatch of the house is renewed from time to time. The second was a-case whether a person who was neither an agricultural tenant nor a village handicrafts man was found in possession of a house in the abadi which he and his predecessors in title had held for a period of considerably more than twelve years, without paying rent or acknowledging in any way the title of the zamindar to the site upon which it was built and it was held that such person had acquired the absolute ownership of the site. In the third case it was held by a single Judge of this Court that Kachcha thatched house may be a work of a permanent character, where it has been used as a residence for a good many years and there is no evidence to indicate that it is only a temporary structure. 24. These cases were decided on the basis of their own facts and in none of them the provisions we are considering came up for interpretation. These cases are clearly distinguishable. The third case cited by Mr. Bhargava goes against Mr. Bhargava's contention because it lays clown that a "Kachcha" thatched house may be of permanent character only if there is no evidence to indicate that it is only a temporary structure. In the present case the lease deeds clearly show that what the appellant was allowed to construct was in the nature of temporary constructions. 25. Under the terms of the lease deeds the appellant had to give back the land to the Zamindars after the expiry of the terms and no further right was left in his favour. At best the appellant was only an occupier of the land for a limited period. 25. Under the terms of the lease deeds the appellant had to give back the land to the Zamindars after the expiry of the terms and no further right was left in his favour. At best the appellant was only an occupier of the land for a limited period. The Act came into force more than five years after the appellant had lost all rights in the land covered by the lease deeds mentioned above. 26. Under these circumstances we are of the opinion that the view taken by the learned single Judge is, correct and he rightly dismissed the writ petition filed by the appellant. 27. The special appeal has no merits. It is accordingly dismissed, but there is no order as to costs.