Bahori v. Deputy Director of Consolidation — 1977 DIGILAW 56 (ALL)

ORDER D.N. Jha, J. - Petitioner Bahori has filed this petition under Art. 226 of the Constitution praying for quashing of the order dated 5-2-1971 passed by the Deputy Director of Consolidation contained in Annexure-3. 2. In brief the facts are that Auseri, father of petitioner Bahori was recorded tenant of 18 plots of land situate at village Saraiya Pargana Kheri numbers of which have been disclosed in para. 1 of the petition. The dispute between the petitioner and Chhotey Lal and Ram Prasad, opposite parties 2 and 3, relates to 10 plots which have been disclosed in para. 3 of the petition. The admitted pedigree between the petitioner and opposite parties is as under: The duration of tenancy recorded in 1357 Fasli was of ten years. The case set up by the petitioner was that he was admitted as a sub-tenant by his father Auseri during his lifetime and the petitioner therefore made an application under S. 3-A of U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949 (hereinafter to be referred as the Act) and after payment of ten times rent was granted a declaration under S. 6 of the Act by the Assistant Collector in respect of the ten plots on annual rent of Rs. 12/2/6. The declaration was granted on 20-3-1950 and is Annexure 1. The petitioner, therefore, claimed that on coming into force of U.P. Zamindari Abolition and Land Reforms Act, 1950 he became Bhumidhar of the said ten plots. The petitioner ever since the grant of declaration continued to be in exclusive cultivatory possession of the same. It was also asserted that even though Auseri was alive till the year 1956, but no objection against the declaration was preferred by him. It was also disclosed that Gajodhar, brother of the petitioner, died about 1957 but he had also made no objection. The declaration undoubtedly given in favour of the petitioner under the Act had not been cancelled. In the petition it is disclosed that on the death of Auseri orders for mutation of the names of Gajodhar and the petitioner was made on 7-5-1956 with respect to the remaining eight plots only and likewise on the death of Gajodhar orders were passed on 6-4-1957 by the Tahsildar for mutation of the names of opposite parties Chhotey Lal and Ram Prasad on the share of Gajodhar along with the petitioner. On coming into force of the U.P. Consolidation of Holdings Act opposite parties Chhotey Lal and Ram Prasad filed objections relating to Bhumidhari plots and claimed co-tenancy rights to the extent of half share. The dispute was referred to the Consolidation officer who vide his order dated 9-12-1969 allowed the objection and ordered opposite parties to be recorded as co-tenants to the extent of half share. The petitioner feeling aggrieved by the order preferred an appeal before the Settlement Officer Consolidation and the same was allowed by him on 7-7-1970. This order is Annexure 2. The opposite parties went up in revision and the same was allowed by the Deputy Director of Consolidation vide his order dated 5-2-1971. This order is Annexure-3. The Deputy Director of Consolidation was pleased to set aside the order passed by the Settlement Officer Consolidation and restore the order passed by the Consolidation Officer. It is in these circumstances that the petitioner has now come up before this court by means of the present petition. 3. The petition has been contested on behalf of opposite parties Chhotey Lal and Ram Prasad and a counter-affidavit has also been filed. It is asserted that the petitioner by misrepresentation of facts deposited ten times of the land revenue and obtained the declaration although in the eye of law he was not entitled for the grant of the Sanad. It is also asserted that Auseri had not accepted the petitioner as a sub-tenant and the land being ancestral the petitioner was only entitled to half share and they were entitled to the remaining half share of Gajodhar. In short the submission is that there was no occasion for creation of sub-tenancy by Auseri in favour of the petitioner and he was not competent to acquire Bhumidhari rights in the land in dispute and it is asserted that after the death of Auseri the land in dispute devolved upon his heirs, viz. the petitioner and Gajodhar and the opposite parties by virtue of being sons of Gajodhar were entitled to co-tenancy rights. It is further mentioned that opposite parties had filed a suit for partition and declaration of rights in the court of Judicial Officer Kheri and the same was decreed on 5-6-1968. the petitioner and Gajodhar and the opposite parties by virtue of being sons of Gajodhar were entitled to co-tenancy rights. It is further mentioned that opposite parties had filed a suit for partition and declaration of rights in the court of Judicial Officer Kheri and the same was decreed on 5-6-1968. Copy of this order is Annexure-B. An effort has been made to support the orders passed by the Consolidation Officer and the Deputy Director of Consolidation and it is urged that it is not a fit case warranting interference by this court in exercise of discretionary jurisdiction vested under Art. 226 of the Constitution. 4. I have heard the learned counsel for the parties at some length and perused the documents brought on the record of this court. The controversy in my opinion between the parties lies in a very narrow ambit. The contention of the learned counsel for the petitioner is that U.P. Agricultural Tenants (Acquisition of Privileges) Act 1949 is a self contained Act and the only course open to opposite parties was to move the appropriate authority under the Act if they really felt that they had any claim in Bhumidhari land. In short his submission is that in accordance with the provisions of S. 3-A (3) of the Act, the petitioner having been admitted as a sub-tenant was entitled to move an application and he having been granted a declaration under S. 6 after payment of ten times, rent lawfully became Bhumidhar and the rights of Auseri whatever were in the land in dispute were extinguished. It would be presumed that Auseri had surrendered the disputed land in respect of which privileges were granted by declaration under S. 6 of the Act. In the circumstances the presumption drawn by the Deputy Director of Consolidation that ten times rent might have been deposited on behalf of Auseri was untenable and opposite parties were not entitled to any co-tenancy rights in the disputed plots. In the circumstances the presumption drawn by the Deputy Director of Consolidation that ten times rent might have been deposited on behalf of Auseri was untenable and opposite parties were not entitled to any co-tenancy rights in the disputed plots. On behalf of opposite parties the assertions made by the learned counsel for the petitioner have been repudiated and it is asserted that since there was nothing on record to show that petitioner was a sub-tenant and in absence of any re cord of the proceedings of the U.P. Agricultural Tenants (Acquisition of Privileges) Act 1949 it cannot be presumed that the petitioner was lawfully granted the declaration and it amounted to depriving the opposite parties of their rightful claims in the disputed land. 5. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and in my opinion the sole consideration before this court is whether the declaration granted to the petitioner was in accordance with the provisions of U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949 and whether the petitioner could be deemed to be a Bhumidhar of the plots in dispute to the exclusion of opposite parties. It is therefore, necessary to examine certain provisions of the Act. It may be mentioned that in 1949 when the U.P. Zamindari Abolition and Land Reforms Act was being drafted and Zamindari was about to be abolished the question before the Government was of acquiring funds for payment of compensation to the zamindars whose interests were to be taken over by the Government. The Govt. thought it convenient in the circumstances to pass the U.P. Agricultural Tenants (Acquisition of Privileges) Act, 1949. This Act permitted the tenants to deposit ten times annual rent in order to acquire special privileges in their tenancy holdings. The main benefit which was to accrue to the tenants are mentioned in S. 7 of the Act and they are: (i) that the tenants would not be liable to ejectment; (ii) that the rent payable was to be reduced by 50 per cent. 6. Section 3 originally as drafted provided for the persons who could make an application for acquisition of the privileges. Originally under this section only those persons who were tenants of the land had privileges of making a deposit of ten times of the annual rent and obtain a declaration. 6. Section 3 originally as drafted provided for the persons who could make an application for acquisition of the privileges. Originally under this section only those persons who were tenants of the land had privileges of making a deposit of ten times of the annual rent and obtain a declaration. This Act was subsequently amended and Sections 3-A, 3-B and 3-C were introduced by Amending Act No. VII of 1950. Section 3-A made provision for acquisition of privileges by sub-tenants who were only holding a part of the land mentioned in sub-cls. (a) to (d) of sub-sec. (1) of S. 3. Section 3-B provided for privileges by unrecorded co-tenants. Section 3-C made provisions for acquisition of privileges by recorded and unrecorded co-tenants jointly. It may be mentioned that in the instant case there is not a single entry of revenue record to enable the court to hold whether the petitioner was recorded as sub-tenant or it was only that the petitioner had been admitted orally as a sub-tenant. However, in the petition it is categorically stated in paragraph 3 that the petitioner had moved an application to the Assistant Collector under S. 3-A (2) of the Act and the petitioner on payment of ten times of the rent payable for the land by the landholder after due scrutiny of his application was granted declaration under S. 6 of the Act. In paragraph 4 of the counter affidavit it is stated that the petitioner by misrepresentation of facts deposited ten times of the land revenue and obtained the declaration. It is asserted that the petitioner was not entitled for grant of declaration and it is further asserted that Auseri had not accepted the petitioner as sub-tenant. It is further stated that there was no occasion for Auseri to admit the petitioner as a sub-tenant as the land was ancestral. It may be mentioned that it was only Auseri who was recorded as a tenant of the entire holding consisting of 18 plots. There is nothing on record to show that the Assistant Collector had issued any notice to Auseri or that Auseri had given his consent. The question, therefore, in my opinion to be examined is whether the petitioner was competent to make such an application by virtue of being a subtenant. There is nothing on record to show that the Assistant Collector had issued any notice to Auseri or that Auseri had given his consent. The question, therefore, in my opinion to be examined is whether the petitioner was competent to make such an application by virtue of being a subtenant. The fact clearly revealed that there is nothing on record, positively to establish that, the petitioner was admitted as a sub-tenant except his oral assertion. The petitioner has not even filed the application originally presented before the Assistant Collector for grant of declaration in his favour. 7. The phraseology of the various provisions incorporated by Amending Act No. VII of 1950, it is quite clear, that, it only provides a procedure to summarily dispose of the cases where the tenants whose names are not on record for making application for acquiring the privileges. It is, therefore, clear it is the applicant who has to satisfy and the declaration alone therefore in my opinion cannot confer absolute rights. The intention of the legislature is very clear that it did not want a person who had absolutely no right, to make false allegation, to be a joint tenant and the Assistant Collector after enquiry having come to the conclusion that he had no claim to be a joint tenant but still would grant the application and allow him to be a joint tenant. The provision in my opinion would not apply to a person who was not a sub-tenant. 8. In this connection S. 7-A is relevant which provides : "No person shall, by virtue of any declaration made under S. 6, be entitled to any larger share in the holding than to which he may have been otherwise entitled and notwithstanding the declaration the interest of any other tenant in the holding shall continue unaffected." This section in my opinion ensures that by obtaining a declaration or a Sanad under the summary procedure the real rights of co-tenants cannot be affected. If a Sanad is wrongly issued by means of the summary procedure the rights of other co-tenants will not be affected; hence the Sanad by itself in my opinion is not meant to vest any new rights in any person which he did not possess before the Sanad was granted. If a Sanad is wrongly issued by means of the summary procedure the rights of other co-tenants will not be affected; hence the Sanad by itself in my opinion is not meant to vest any new rights in any person which he did not possess before the Sanad was granted. It is true that S. 12 of the Act provides for an application for cancellation of the Sanad granted under S. 6 in case it was fraudulently obtained or by making false allegation or on account of the fact that the rights of the parties had been declared by a competent court which were inconsistent with the Sanad. A reading of S. 7-A and S. 12 leaves no doubt that the Sanad issued did not intend to create any rights whatsoever in favour of the persons who were not tenants. It is evident from the assertions made in the counter affidavit that a partition suit had been filed and thereafter in the proceedings under the U.P. Consolidation of Holdings Act objections were filed. The consolidation authorities were competent to adjudicate over the rights and interests of the parties. I, therefore, see no error committed by the Consolidation officer or the Deputy Director of Consolidation in granting co-tenancy rights to the opposite parties. It may be mentioned that the U.P. Agricultural Tenants (Acquisition of Privileges) Act 1949 was passed in order to confeprivileges upon existing tenants and it did not intend to create new tenancies. I have also no hesitation in holding on the basis of evidence on record that the petitioner was never admitted as a sub-tenant and he was not competent to make an application for obtaining Bhumidhari Sanad. The consolidation authorities were, therefore, right in coming to the conclusion in rejecting the claims of the petitioner on the basis of declaration. 9. I have already mentioned above that the petitioner did not file the application which was given by him before the Assistant Collector. The burden was on the petitioner to prove that he was the person who was entitled to get the privilege and had rightly acquired the same. It was on the petitioner to prove all the facts necessarily to establish his rights. This ground alone in my opinion was sufficient to reject the claim of the petitioner. 10. The burden was on the petitioner to prove that he was the person who was entitled to get the privilege and had rightly acquired the same. It was on the petitioner to prove all the facts necessarily to establish his rights. This ground alone in my opinion was sufficient to reject the claim of the petitioner. 10. The result is that in view of the discussion made above the writ petition fails and is accordingly dismissed. I, however, make no order as to costs. The interim stay order dated 23-7-1971 is vacated.