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1992 DIGILAW 656 (ALL)

Arvind Kumar v. Madhusudan

1992-04-30

BRIJESH KUMAR

body1992
JUDGMENT Brijesh Kumar, Member - This reference arises out of an order dated 21.9.1984 passed by the Addl. Collector, Bareilly in a case u/Sec. 143 of the U.P. Zamindari Abolition and Land Reforms Act. 2. The facts of the case are that Madhusudan filed an application before the S.D.O., Faridpur u/Sec. 143 of the Act for the declaration in respect of the change of the nature of the land in question. The learned S.D.O. allowed the application. Aggrieved by this order, an appeal was preferred before the Addl. Collector who dismissed the appeal on 21.9.1984. Arvind Kumar Agarwal preferred a revision before the Addl. Commissioner against this order. The learned Addl. Commissioner found the order of the court below against law as Madhusudan was not a recorded bhumidhar. Relying on a ruling reported in 1983 AWC 32 (Rev.) the learned Addl. Commissioner came to the conclusion that only a bhumidhar can make a application u/Sec. 143 of the Act he, therefore, made a reference recommending to set aside the order of the learned trial court. 3. I have heard the learned counsel for the parties. Sri R.K. Yadav, learned counsel for the revisionist has contended that the Opp. party was not the recorded bhumidhar on the date of application and so no case u/Sec. 143 of the Act is made out. Sri G.N. Verma, learned counsel for the Opp. party has contended that it has been decided by the civil court that the revisionist has no right in the land in dispute and so he has no right to prefer a revision. He has further contended that the sons of Indrajit (Vendor) were recorded bhumidhars. Indrajit sold the land to Raghubar Dayal on 3.3.1946. The land was put to auction and Krishna Murari purchased the land in auction and became bhumidhar. He has, therefore, urged not to accept the reference. 4. I have carefully considered the arguments advanced before me and have also perused the record. The simple question to be decided in this case is whether the Asstt. Collector incharge of the sub-division can declare the nature of the land under Section 143 of the Act on an application of a non-recorded person. 4. I have carefully considered the arguments advanced before me and have also perused the record. The simple question to be decided in this case is whether the Asstt. Collector incharge of the sub-division can declare the nature of the land under Section 143 of the Act on an application of a non-recorded person. Section 141 of the Act provides that - "(1) Where a bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandary which includes pisciculture and polutry farming, the Asstt. Collector incharge of the sub-division may suo-moto or on an application, after making such enquiry as may be prescribed, make a declaration to that effect. (1-A) Where a declaration under sub-Section (1) has to be made in respect of a part of the holding the Asstt Collector in-charge of the sub-division may in the manner prescribed demarcate such part for the purposes of such declaration. (2) Upon the grant of the declaration mentioned in sub-Section (1) of the provisions of this Chapter other than this section shall cease to apply to the bhumidhar with transferable rights with respect to such land and he shall thereupon he governed in the matter of devolution of the land by personal law to which he is subject. (3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment)Act 1978, any loan by the Uttar Prades Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provisions of this Chapter other than this section shall cease to apply to such bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject." 5. It is evident from the above provisions that the Asstt. Collector in-charge of the sub-division will act on an application of bhumidhar. This section also contemplates that the Asstt. Collector in-charge of the sub-division may initiate proceedings suo-moto on an application. Such application can be given by any person. It is nothing but a sort of information. Rules have also been framed by the State Government. Collector in-charge of the sub-division will act on an application of bhumidhar. This section also contemplates that the Asstt. Collector in-charge of the sub-division may initiate proceedings suo-moto on an application. Such application can be given by any person. It is nothing but a sort of information. Rules have also been framed by the State Government. Rule 135 (1) provides that - "On an application made by a bhumidhar under Section 143 or on facts coming to his notice otherwise, the Asstt. Collector incharge of the sub-division may cause enquiry being made through the Tehsildar or any other officer not below the" rank of Supervisor, Kanungo, for the purpose of satisfying himself that the bhumidhar's holding or a part thereof is really being used for a purpose not connected with agriculture horticulture or animal husbandary which includes pisciculture and poultry farming. The enquiry shall be made by the spot and the enquiry officer shall, along with his report also furnish information in the proforma given below -- Name of village Name of bhumidhar with parentage and residence Khata Khatauni number Area of the holding Land Revenue Area of the holding used for non-agricultural purposes The Specific non-agricultural use to which the holding or part thereof is put to Re-marks (A) Plot No. (B) Area 1 2 3 4 5 6 7 8 Rule 135 (2) of the U.P.Z.A. and L.R. Rules provides that - "Where the proceedings have been started by the Asstt. Collector incharge of the sub-division on his own motion he shall issue notice to the bhumidhar concerned. Otherwise also he shall give him an opportunity of being heard before coming to a decision in the matter." 6. In the instant case, Madhusudan Bhagwan s/o Radhey Lal moved a miscellaneous application before the S.D.O. Faridpur district Bareilly, on 2.3.1983 with the contentions that the disputed plot No. 694/1-2-0 was turned into abadi and recorded as abadi in the municipal records. The applicant paid necessary rent and abadi tax. A prayer was, therefore, made to change the nature of the land and declare it is abadi. The S.D.O. got an enquiry made through the Tehsildar Faridpur. The enquiry was made by the naib-Tehsildar who submitted his report on 22.3.1983. It appears from the report that the land in dispute is abadi surrounded by a boundary wall. A prayer was, therefore, made to change the nature of the land and declare it is abadi. The S.D.O. got an enquiry made through the Tehsildar Faridpur. The enquiry was made by the naib-Tehsildar who submitted his report on 22.3.1983. It appears from the report that the land in dispute is abadi surrounded by a boundary wall. The report also refers to a certificate of auction dated 13.8.1964 in which the land in dispute was recorded as abadi. The enquiry-officer recommended to change the nature of the land and record it as abadi. On the basis of this report, the learned Asstt. Collector incharge of the sub-division made a declaration u/Sec. 143 of the Act to the effect that the land in dispute would be recorded as abadi. An appeal against this order was preferred before the Collector, Bareilly who found no flaw in the order of the learned trial court and dismissed the appeal. A revision against this order was preferred before the Divisional Commissioner. The learned Addl. Commissioner held that only a bhumidhar can make an application. The findings of the learned Addl. Commissioner suffers from infirmity inasmuch as he has totally lost sight of the provisions that suo-moto action can also be taken by the Asstt. Collector incharge of the Sub-division. Had it not been provided that the Asstt. Collector in-charge of the sub-division can take suo-moto action, the argument advanced by the learned counsel for the revisionist would have, sufficient force. But where the Asstt. Collector incharge of the subdivision has been given discretion to initiate proceedings suo-moto on the facts coming to his notice, even persons not recorded bhumidhar can make an application for changing the nature of the land. This view has also been taken in Hirdaya Narain v. Ram Kishore 1976 R.D. 265. The only compulsion for the Asstt. Collector incharge of the sub-division is that he shall issue a notice to the bhumidhar concerned under sub-rule (2) of Rule 135 of the U.P.Z.A. and L.R. Rules. No notice appears to have been given by the learned trial court to the recorded tenure holder. 7. The contention of the learned counsel for the Opp. party is that the land having been purchased by the Opp. Party in an auction by the Court, the revisionist Arvind Kumar has no locus standi and a right of revision. The Opp. No notice appears to have been given by the learned trial court to the recorded tenure holder. 7. The contention of the learned counsel for the Opp. party is that the land having been purchased by the Opp. Party in an auction by the Court, the revisionist Arvind Kumar has no locus standi and a right of revision. The Opp. party's case is that the land in dispute is recorded in the name of the sons of Indrajit Singh Indrajit Singh had transferred the land in dispute in favour of Raghubar Dayal on 3.3.1946 by a registered sale-deed. Raghubar Dayal's interest was sold in an auction by the court and was purchased by Krishna Murari who was predecessor-in-interest of the Opp. party. The aforesaid auction was held on 10.4.1964. When Arvind Kumar tried to interfere with the possession of the Opp. party, a suit No. 243/4 was instituted in the court of the Civil Judge, Bareilly and by means of his judgment dated 11.9.1987, the learned Civil Judge decreed the suit and restrained the revisionist Arvind Kumar not to interfere with the possession and title of the Opp. party. This judgment has been brought on the record. I have gone through this judgment whereby the learned Civil Judge has restrained Arvind Kumar not to interfere with the possession and title of Badri Vishal. Though Arvind Kumar has been restrained from interferring with the possession and title of the Opp. party, this judgment is of no heir to them as the judgment was pronounced on 11.9.1987 whereas the application for changing the nature of the land was made as early as on 2.3.83. Sub-rule (2) of the Rule 135 is mandatory and it was imperative upon the Asstt. Collector in-charge of the sub-division to issue a notice to the recorded bhumidhar and must have given them an opportunity of being heard before coming to a decision in the matter. The learned trial court has failed to observe this mandatory provision. It is, therefore, a fit case for remand. 8. In the result, this revision is allowed and the orders of the learned Collector and the S.D.O. are set aside. The case is remanded back to the learned trial court i.e. Asstt. The learned trial court has failed to observe this mandatory provision. It is, therefore, a fit case for remand. 8. In the result, this revision is allowed and the orders of the learned Collector and the S.D.O. are set aside. The case is remanded back to the learned trial court i.e. Asstt. Collector incharge of the sub-division, Faridpur with the direction to issue a not ice under sub-rule (2) of Rule 135 of the U.P. Z.A. and L.R. Rules to the recorded bhumidhar and to decide the case afresh after giving them an opportunity of being heard. 9. The parties are directed to appear before the trial court on 24.7.1992.