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1970 DIGILAW 431 (ALL)

Matabi v. Sheopati

1970-11-05

S.N.DWIVEDI

body1970
ORDER S.N. Dwivedi, J. - One Smt. Angni was the sirdar of some plots. Smt. Partabi, the second Respondent and Smt. Matabi the Petitioner are her daughters. Smt. Sheopatti is the daughter of Smt. Partabi. 2. On August 2, 1963 Smt. Angni made an application for acquisition of Bhumidhari rights. The same day she deposited the requisite amount for acquisition of the said rights. On August 6, 1963 she executed a gift-deed of the aforesaid plots to Smt. Sheopatti. On October 31, 1963 the Tahsildar passed an order for issue of a certificate of bhumidhari in favour of Smt. Angni. On June 7, 1964 she passed away. On May 6, 1965 a certificate was issued in her name granting bhurnidhari rights. 3. Before the consolidation authorities there was a dispute about succession to her interest in the holding. Smt. Matabi claimed a half share in the holding by virtue of her being a daughter; on the other hand, Smt. Sheopatti claimed the entire holding by virtue of the gift deed. Smt. Matabi asserted that the certificate granting bhumidhari rights having bean issued on May 6, 1965 after the death of Smt. Angni on June 7, 1964. Smt. Angni was not a bhumidhar on August 6, 1963 when she executed the gift deed and that accordingly Smt. Sheopatti was not entitled to any share in the holding. In revision, the Deputy Director, Consolidation negatived her claim and held that Smt. Sheopatti was entitled to the entire holding by virtue of the gift deed. His decision is impugned in these writ petitions. 4. Section 134 of the UP ZA and LR Act, (hereinafter called the Act) provides that if a sirdar pays to the Government a certain amount, he shall, upon an application in that behalf, be entitled, with effect from the date on which the amount has been deposited, to a declaration that he has acquired the rights mentioned in Section 137. Section 137(i) provides that if the appropriate authority is satisfied that the Applicant is entitled > to the declaration mentioned in Section 134, he shall "grant a certificate to that effect." Sub-section (2) is material for our purpose in this case. Section 137(i) provides that if the appropriate authority is satisfied that the Applicant is entitled > to the declaration mentioned in Section 134, he shall "grant a certificate to that effect." Sub-section (2) is material for our purpose in this case. It reads materially: Upon the grant of the certificate, Under Sub-section (1) the sirdar shall, from the date on which the amount referred to in Sub-section (1) of Section 134 has been deposited, (a) become and be deemed to be a bhumidhar of the holding or the share in respect of which the certificate has been granted.... Section 137-A provides for the cancellation of a certificate "granted u/s 137" in certain circumstances. Section 331(3) provides for a first appeal against any final order passed by a court mentioned in column No. 4 in the proceedings mentioned in column No. 3 of the Second Schedule to the Act. Item No. 6 of the Second Schedule mentions Section 134. A first appeal lies from the order of the Assistant Collector granting or refusing a certificate to the Commissioner. 5. Ch. VIII of the UPZA and LR Rules deals with acquisition of a certificate or bhumidhari rights. I shall mention only some of the relevant rules from Ch. VIII. Rule 118(4) provides that where the Assistant Collector is satisfied that the Applicant is entitled to a declaration, he shall, "grant a declaration to that effect." Rule 118(5) provides that before the grant of a declaration the Assistant Collector shall satisfy himself that the entries in columns 1 to 8 of ZA Form 50 and ZA Form 51 have bean made. Entries in column 9 and the signature in column 10 will be made "at the time of issuing the declaration." Rule 119 provides that declaration shall in the case of payment in lump sum be made on ZA Form 52; in the case of payment in instalments on ZA Form 53. The forms of declaration would be kept in bound volumes in the custody of the officer "authorised to issue them" and before a declaration "is issued" entries in the counterfoils shall be completed and initialled by the Assistant Collector. Rule 120 provides that as soon as a declaration has been granted the Assistant Collector shall direct that an entry to that effect be made in tha record of rights. 6. Cols. Rule 120 provides that as soon as a declaration has been granted the Assistant Collector shall direct that an entry to that effect be made in tha record of rights. 6. Cols. 9 and 10 of ZA Form 50 and ZA Form 51 are similar. The heading of col. 9 is 'number and date of declaration.' The heading of col. 10 is 'signature of the Assistant Collector 7. I am of opinion that the expression "grant of certificate" in Sub-section (1) of Section 137 really means making an order granting a certificate. Similarly the expression "upon the grant of the certification" in Sub-section (2) of Section 137 means "upon the making of an order granting a certificate." It does not mean, as is contended for by counsel for the Petitioner, the actual issue of a certificate. The context of Section 137 militates with this argument. The Assistant Collector acts as a quasi-judicial authority when granting or refusing a certificate. The order granting a certificate is quasi-judicial order. The issue of a certificate in pursuance of his order is a ministerial Act. The conferment of bhumidhari rights is not dependent on the performance of the ministerial act of issuing a certificate. The rights accrue on the making of an order granting a certificate. The interpretation suggested by counsel for the Petitioner will result in great hardships in many cases and should not ordinarily be accepted. 8. It may be observed that a first appeal lies against the order granting or refusing a certificate to the Commissioner u/s 331(3). It would show that importance is attached to the order granting a certificate and not to the ministerial act of issuing a certificate. Again, it may be noted that the rules make distinction between the grant of a certificate and the issue of a certificate. Rules 118(5) and 119 clearly provide that certain ministerial acts shall be performed at the time of issuing the declaration, that is, a certificate. Those ministerial acts are not to be performed at the time of making an order granting a certificate. Rule 119 also makes a distinction between the Assistant Collector who is authorised to make an order granting a declaration and an officer who is authorised to issue a declaration. In this connection Rule 120 is important. Those ministerial acts are not to be performed at the time of making an order granting a certificate. Rule 119 also makes a distinction between the Assistant Collector who is authorised to make an order granting a declaration and an officer who is authorised to issue a declaration. In this connection Rule 120 is important. It says that as soon as a declaration has been grafted the Assistant Collector shall directed that an entry to that effect be made in the record of rights. In other words, the entry shall be made in the record of rights as soon as the Assistant Collector makes an order granting a declaration. 9. The expression "rant of the certificate" is also to be found in Rule 7 of Order 45, Code of Civil Procedure. It provides that "where the certificate is grantee, the Applicant shall, within 90 days pr such further period, not exceeding 60 days, as the court shall allow from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is a later date, furnish security in case...." In Standard Vacuum Oil Co. Vs. The Commercial Tax Officer and Others, AIR 1957 Cal 528 it is held that the expression "grant of the certificate" means the date of the order made for the issue of a formal certificate. 10. Having regard to the language, context and object of Section 137(2) I am of opinion that the expression "upon the grant of the certificate" in Sub-section (2) of Section 137 means "upon the making of an order for the grant of the certificate." So if the Applicant is alive on the date of the order granting a certificate to him, he will become a bhumidhar from the date of the deposit of money even though the certificate issued after his death. The gift deed is accordingly valid in the circumstances of this case. Smt. Sheopatti is therefore entitled to the entire holding on the strength of the gift deed. 11. Counsel for the Petitioner relied on Tikam Singh v. Chhatrapal Singh 1963 AWR 395, Anis Ahmad v. State of Uttar Pradesh 1965 AWR 458 and Ramdeo v. Deputy Director of Consolidation 1967 AWR 578 . These cases proceed on their own facts and could not and do not decide the question arising before me. They are clearly distinguishable. 12. 11. Counsel for the Petitioner relied on Tikam Singh v. Chhatrapal Singh 1963 AWR 395, Anis Ahmad v. State of Uttar Pradesh 1965 AWR 458 and Ramdeo v. Deputy Director of Consolidation 1967 AWR 578 . These cases proceed on their own facts and could not and do not decide the question arising before me. They are clearly distinguishable. 12. The petition is accordingly dismissed in the circumstances of this case there shall be no order as to costs.