Shyam Singh v. Nathola — 1981 DIGILAW 732 (ALL)

JUDGMENT I.B. Singh, Members - This Bench has been constituted by Sri S.K. Sarkar, the then Senior Member/Chairman, Board of Revenue by his order dated January 5, 1981 for deciding the question referred by Sri P.C. Saxena, the then Member, by his order dated April 26, 1979 disagreeing with the view expressed by Sri H.N. Agarwal in ruling reported in 1977 R.D. 266 regarding Section 195 of Act I of 1951. Sri H.N. Agarwal quoted Section 195 of U.P.Z.A. and L.R. Act as follows: "195. Admission of land. The Land Management Committee with the previous approval of the Assistant Collector In-charge of the Sub-Division shall have the right to admit any person as Bhumidhar with not transferable rights to any land (other than land falling in any of the clauses mentioned in Section 132) where - (a) the land is vacant land; (b) the land is vested in the Gaon Sabha under Section 117; or (c) the land has come into the possession of Land Management Committee under Section 194 or under any other provision of this Act." He interpreted the section in the following terms: "5. Thus the first requirement before any land can be allotted by the Land Management Committee is that it should be vacant land and the second requirement is that it should either have vested in the Gaon Sabha under Section 117 or should have come into possession of the land Management Committee under any provision of the Act. Land which is in the cultivatory occupation of any person irrespective of the status of such person cannot be deemed to be either vacant land Committee. Thus, the allotment of land by the Land Management Committee to a person already occupying in any capacity whether as a trespasser or a tenure-holder is in contravention of the law. 2. Sri P.C. Saxena did not agree with the said interpretation of Sri H.N. Agarwal. He observed that Sri H.N. Agarwal interpreted the section so as to read (a) (b) together and in addition to each other, and (b) and (c) as alternative to each other, and felt that (a) and (b) should be read as if the word 'or' had intervened to tween them. He observed that Sri H.N. Agarwal interpreted the section so as to read (a) (b) together and in addition to each other, and (b) and (c) as alternative to each other, and felt that (a) and (b) should be read as if the word 'or' had intervened to tween them. So, the question referred to us can be framed as follows: "Whether clauses (a) and (b) of Section 195 of Act I of 1951 should be read together and in addition to each other and clauses (b) and (c) as alternative to each other of clauses (a) and (b) should be read as if the word 'or' had intervened between them ?" 3. We have heard the learned counsel for the parties and have perused the record. 4. It has been argued by the learned counsel for the appellant that the pre-condition for allotment of any land by the Land Management Committee is that it should be vacant land and second requirement is that it should either have vested in the Gaon Sabha under Section 117 or should have come into the possession of the Land Management Committee under any provision of the Act. The land which is in the cultivatory occupation of any person, irrespective of the status of such person, cannot be deemed to be either vacant land or land in the possession of the Land Management Committee. The allotment of such land by the Land Management Committee to any person being already in possession and occupation of any other person in any capacity, either as a trespasser or as a tenure-holder, is in contravention of the law. 5. It has been argued by Sri D.N. Srivastava, District Government Counsel (Revenue) that if the above interpretation is followed, then the land of the Gaon Sabha will never be a vacant land although it might have vested in it or might have come in its possession because even if a person is ejected today from the Gaon Sabha Land, he can again occupy it at once after his ejectment and then it will again cease to be vacant land. The possession of a trespasser cannot be deemed to do away with the legal right of the Gaon Sabha. He has been supported by Sri K.D. Tripathi, Advocate. 6. The possession of a trespasser cannot be deemed to do away with the legal right of the Gaon Sabha. He has been supported by Sri K.D. Tripathi, Advocate. 6. Before entering into discussion on merits of and de-merits of the argument advanced at the Bar, we would like to quote correct Section 195 of Act I of 1951 printed in Government publication of the Act, as the section quoted by Sri H.N. Agarwal or referred by Sri P.C. Saxena is not correct because in private publication of the Act, Semicolon (;) has been used at the end of clauses (a) and (b) and at the end of clause (b) before 'or'. The correct section reads as follows: "Section 195. Admission to land. The Land Management Committee with the previous approval of the Asstt. Col-lector-in-charge of the sub-division, shall have the right to admit any person as Sirdar to any land (other than land falling in any of the classes mentioned in Section 132) where - (a) the land is vacant land, (b) the land is vested in the Gaon Sabha under Section 117, or (c) the land has come into the possession of Land Management Committee under Section 194 of under any other provision of this Act." 7. We feel that the controversy has arisen because ordinary dictionary meaning to word 'vacant' seems to be applied in interpreting clause (a) of Section 195 of Act 1 of 1951 both by Bench and the Bar so far. The ordinary dictionary meaning of word 'vacant' is 'without occupant'. The terms 'vacant land' has not been defined in any tenancy law concerning land but it carries with it certain statutory implications, it means land hitherto held by a Bhumidhar, Sirdar or Asami in which the right, title or interest of the tenure-holder extinguishes under the provisions of Act I of 1951. Such a land vests in the Gaon Sabha which has powers to admit any person as Sirdar or Asami to the land, now as Bhumidhar with non-transferable rights or Asami. 8. Section 13(2)(b) and (ii) of the Act provides that in respect of an estate in possession of a Thekadar, on vesting the Thekadar shall cease to have any right to hold or possess as such any land in such estate. 8. Section 13(2)(b) and (ii) of the Act provides that in respect of an estate in possession of a Thekadar, on vesting the Thekadar shall cease to have any right to hold or possess as such any land in such estate. He shall become an Asami if the land was Sir or Khudkasht of the lessor on the date of the grant of the Theka and the land was in personal cultivation of the Thekadar who shall become its Asami from the date of vesting. If it was not Sir and Khudkasht of the lessor, he shall become hereditary tenant to the extent of 30 acres. If the area exceeded 30 acres the remaining area shall be deemed to be vacant land and he will be liable to ejectment on a suit by the Gaon Sabha. This section in a way is a supplement to Section 12. It will be thus clear that although the land in excess of 30 acres being in the cultivatory possession of the Thekadar, being not Sir or Khudkasht of the lessor, shall be deemed to be vacant land under Section 13(2) (b) (ii) which runs as follows: - "13(2) Where any such land was in the personal cultivation of the Thekadar on the date immediately preceding the date of vesting, the same shall - (a) ............ (b) If it was nor Sir or Khudkasht of the lessor on the date of the grant of the Theka and - (i)............ (ii) Its area exceeds thirty acres, be deemed to the extent of thirty acres for purposes of Section 19 to have been held as a hereditary tenant as aforesaid and the remainder shall be deemed to be vacant land and the Thekadar shall be liable to ejectment therefrom in accordance with the provisions of Section 209." 9. (ii) Its area exceeds thirty acres, be deemed to the extent of thirty acres for purposes of Section 19 to have been held as a hereditary tenant as aforesaid and the remainder shall be deemed to be vacant land and the Thekadar shall be liable to ejectment therefrom in accordance with the provisions of Section 209." 9. A land may become vacant in the following other circumstances: - (A) Under Section 14(2) provisions of the Act where the land was in personal cultivation of a mortgagee, which was not the Sir or Khudkasht of the mortgagor and the mortgagee failed to pay the requisite amount equal to five times of the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting within six months, he shall thereupon lose all rights in such land which shall be deemed to be vacant land and he shall be liable to ejectment on the suit of the Gaon Sabha or the Collector as if he were a person in possession thereof otherwise that in accordance with the provisions of the Act. The stress is 'on' - which shall be deemed to be 'vacant land' and he shall be liable to ejectment - ' (B) Where a Bhumidhar sells or gives in contravention of provisions of Section Id 4 of the Act, the land so transferred making total of the land possessed by the transferee together with the land transferred in excess of twelve and a half acres, shall become vacant land vide Section 163 of the Act. (C) Where a Bhumidhar has executed usufructuary mortgage in contravention of Section 155 of the Act the transaction would be deemed to be a sale, inviting application of Section 163 and declaring the transaction to be void and affected land to be vacant vide Section 164 of the Act. (D) Where lease has been executed in contravention of Sec. 157, the provisions of Sections 154 and 163 would apply and the land so affected after the transfer being declared void, will become I vacant land vide Section 165 of the Act. (E) Where a transfer has been made in contravention of Chapter VIII of the Act by Sirdar or Asami, the transferee and his successor would be liable to ejectment as the transfer would be void per Section 166 of the Act. (E) Where a transfer has been made in contravention of Chapter VIII of the Act by Sirdar or Asami, the transferee and his successor would be liable to ejectment as the transfer would be void per Section 166 of the Act. The intention of the Legislature is clear that in the case of transfer of any holding or a part thereof having been declared to be void under sub-section (1) of Section 163 or being void under Section 166, the subject matter of such transfer shall be deemed to have vested in the Stats Government and any person in unauthorised occupation thereof shall be evicted therefrom by the Collector under sub-section (3) of Section 163. Though it is not laid down in so many words that the land shall, after the ejectment of the unauthorised transferee, become vacant land, the intention of the Legislature appear to be the same. (F) Where a transfer has been mad: in contravention of Section 168-A(1) the transfer shall be void per its sub-section (2). (G) Where a holding of a Bhumidhar with non-transferable rights, or of an Asami is declared as abandoned, except as provided in Section 172 of the Act, the holding shall be deemed to be vacant land. (H) Where a land-holder is ejectment from a holding under Section 211 of the Act, such land shall become vacant land. 10. Thus, it is clear that the term 'vacant land' at though undefined under the Act, the ordinary dictionary meaning of word 'vacant' cannot be applied to words 'vacant land' used in Section 196 or Section 297 of the Act, as this phrase 'vacant land' carries with it certain statutory implications as mentioned above. 11. 10. Thus, it is clear that the term 'vacant land' at though undefined under the Act, the ordinary dictionary meaning of word 'vacant' cannot be applied to words 'vacant land' used in Section 196 or Section 297 of the Act, as this phrase 'vacant land' carries with it certain statutory implications as mentioned above. 11. A land will be deemed to be vacant land, although being in possession of a Thekadar, in excess of 30 acres not being Sir of Khudkasht of the lessor and will be deemed to be vacant land, although being in possession of mortgagee or transferee in contravention of the provisions of the Act, mentioned above in sub paras (a) to (h) of para 9, tor the purposes of Sections 195 and 197 of the Act, and allotment of such vacant land can be made by the Land Management Committee according to the rules and provisions of the Act of such vacant land, and thus it is clear that the phrase 'vacant land' does not connote 'not to be in possession of any person' and the ordinary dictionary meaning of the word 'vacant' cannot be applied to the phrase in Section 195 of the Act. 12. The possession of a trespasser not having perfected his rights by adverse possession over Gaon Sabha land cannot be equated with the possession of persons mentioned in above paras (8 and 9) and their possession in no case can be made superior to the said persons who were either. In occupation or possession in a legal way since prior to the abolition of zamindari or came in possession by transfers made in contravention of the Act. Even then the land was deemed to be vacant land and allotment of such vacant land was authorised by Section 195(a) of the Act. If a trespasser occupies Gaon Sabha land in contravention of the provisions of the Act and that land is vacant land according to the provisions of the Act its allotment can very well be made by the Land Management Committee under Section 195(a) of the Act and such person occupying or possessing such land can be evicted either by the Gaon Sabha or by the allottee having recourse to the provisions of the Act. 13. 13. The transfer by a title holder of any property, although not in his possession being in possession of a trespasser, is not prohibited by any law. If the trespasser has not perfected Ins right by prescription of law, such transfers are not illegal and the transferee is entitled to eject the trespasser. There can be no justification in deviating from this settled situation regarding property of private owners when Gaon Satiha is authorised to allot land under the provisions of Sections 195 and 197 of the Act such allotment also being of a type of transfer by the Land Management Committee. The ordinary meaning of word 'vacant' can be applied only when the possession over land is legal possession of any person. The words 'occupier' or 'cultivatory possession' have been used in the Act. In Sections 16, 20 and 21 of the Act the word 'occupant' has been used as recorded occupant and the words 'in cultivatory possession' have been used and interpreted to be 'in one' own 'rights', and the cultivatory possession should not be of a trespasser. Thus it is clear that if a trespasser is in possession over certain Gaon Sabha land, it does not cease to be vacant land and its allotment can be made by the land Management Committee under the precisions of the Act. If the phrase 'vacant land' used in the Act, particularly used is Sections 195 and 197 of the Act is interpreted otherwise, then the apprehension of the learned District Government Counsel (Revenue) will come true and no Gaon Sabha hand shall become vacant land and even allotment of land having vested in it, or having come in its possession under Section 194 of the Act or under any other provisions of the Act, can never be managed by the Land Management Committee, being in illegal possession of persons as trespassers in contravention of the provisions of the Act. Section 195 of the Act was wrongly quoted in 1977 R.D. 266, with semicolons at the end of clauses (a) and (b) instead of commas, and without ascertaining to meaning of clause 'vacant land' used in clause (a) of the section an entirely wrong interpretation was made by the learned Member deciding that case. Section 195 of the Act was wrongly quoted in 1977 R.D. 266, with semicolons at the end of clauses (a) and (b) instead of commas, and without ascertaining to meaning of clause 'vacant land' used in clause (a) of the section an entirely wrong interpretation was made by the learned Member deciding that case. The learned Member wrongly interpreted Section 195 so as to read clause (a) and clause (b) together and in addition to each other and clauses (b) and (c) as alternative to each other, perhaps because of the wrong printing of private books using semicolon at the end of clauses (a) and (b) of the section and without ascertaining the statutory implications of undefined legal phrase, the term 'vacant land' used in Act I of 1951. and in doing so an entirely wrong interpretation of the sections has been given. Thus, incorrect law has been laid down in 1977 R.D. 266 which is not approved as a good law. 14. The correct Section 195 of Act I of 1951 as quoted above, comma (,) having been used at the end of clause (a) of the section and before 'or' at the end of clause (b) of the section, the ordinary grammatical interpretation is that 'or' at the end of clause (b) and before clause (c) having been used after coma at the end of clause (a) and clause (b) of the section, will be deemed to have intervened between clauses (a) and (b) also, and being so, the Land Management Committee is entitled to allot the land, (a) if the land in vacant land, or (b) if the land is vested in the Gaon Sabha under Section 117 or (c) if the land has come into the possession of the Land Management Committee under Section 194 or under any provision of this Act and the land shall be deemed to be vacant land in the circumstances mentioned above even if it is in the possession of a trespasser who has not perfected his right under the provisions of law, and the allotment of such land by the Land Management Committee cannot be held to be in contravention of the law. 15. 15. So our answer to the question as framed above, is that in interpreting Section 195 of Act I of 1951, clauses (a) and (b) cannot be read together and in addition to each other and only clauses (b) and (c) as alternative to each ether. The correct interpretation of the section is that clauses (a) and (b) should be read as if the word 'or' had also intervened between them, i.e. If any of the three conditions mentioned in clauses (a), (b) and (c) exist, the Land Management Committee is entitled to allow such land.