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2003 DIGILAW 2104 (ALL)

AHMAD JAMEEL v. ADDITIONAL COMMISSIONER

2003-09-12

ASHOK BHUSHAN

body2003
ASHOK BHUSHAN, J. ( 1 ) HEARD counsel for the parties. ( 2 ) BY the consent of the parties counsels this writ petition is being finally decided at this stage without inviting counter-affidavit. ( 3 ) BY this writ petition the petitioners have prayed for quashing the order dated 12. 6. 2001, passed by the Sub-Divisional Officer, Moradabad in Case No. 336 of 2001 and the order dated 18. 7. 2003, passed by the Additional Commissioner (Administration), Moradabad Division, moradabad, dismissing the Revision No. 62 of 2002-2003 filed by the petitioners under Section 333 of the U. P. Zamindari Abolition and Land Reforms Act. ( 4 ) PETITIONERS case as mentioned in the writ petition is that they were granted lease by the Gaon sabha in the year 1381f, and since then the petitioners are in possession of the land in dispute. Petitioners further alleged that they are regularly paying the rent and their names are also recorded in the records of rights, Petitioners have further claimed that they have become bhumidhars with non-transferable right. A report was submitted by the Tahsildar, Moradabad to the Sub-Divisional Officer, Moradabad, saying that the names of the petitioners are recorded in clause 3 and the period of lease of the petitioners has come to an end and further the petitioners have not followed the terms of the lease, hence their names be expunged. The Sub-Divisional officer after receipt of the report of Tahsildar registered a Case No. 336 of 2001 under Section 202 of the U. P. Zamindari Abolition and Land Reforms Act read with Rule 176a of the zamindari Abolition and Land Reforms Rules. Notices were issued to the petitioners. The sub-Divisional Officer passed an order on 12. 6. 2001, accepting the report of the Tahsildar and directing expunction of the names of the petitioners from plot No. 580 area 0. 547 hectares and the land was directed to be recorded in the name of the Gaon Sabha. Petitioners filed a revision before the Commissioner under Section 333 of the U. P. Zamindari Abolition and Land Reforms act. Petitioners case in the revision was that no notice was received by the petitioners in the aforesaid case. Petitioners have claimed that they have become bhumidhars with non-transferable right. Report of the Tahsildar was not proved by any evidence and was not admissible. Revisional court vide its order dated 18. 7. Petitioners case in the revision was that no notice was received by the petitioners in the aforesaid case. Petitioners have claimed that they have become bhumidhars with non-transferable right. Report of the Tahsildar was not proved by any evidence and was not admissible. Revisional court vide its order dated 18. 7. 2003, rejected the revision. The writ petition has been filed challenging the aforesaid two orders. ( 5 ) LEARNED counsel for the petitioners challenging the orders passed by the Sub-Divisional officer and the Additional Commissioner raised following submissions : (1) Rule 176a Sub-clause (2) having been substituted in the Rules subsequent to grant of lease in favour of the petitioners, the said Rule is not applicable and no action can be taken against the petitioners under the aforesaid Rule 176a Sub-clause (2) of the Zamindari Abolition and Land reforms Rules. (2) Petitioners did not receive any notice in Suit No. 336 of 2001 and the suit was decreed without giving any opportunity to the petitioners. (3) The report of the Tahsildar dated 12. 10. 2000, could not have been relied since Tahsildar was not examined nor the said report was proved. ( 6 ) LEARNED standing counsel appearing for the respondents contended that Rule 176a (2) of the zamindari Abolition and Land Reforms Rules was fully applicable. He contended that the rule gives power to the Sub-Divisional Officer to determine a asami lease. Contention is that the power to determine the lease has validly been exercised under the said Rule which Rule is fully applicable when the power has been exercised. It has been submitted that the summons were issued to the petitioners hence the order cannot be said to be ex-parte. He further contended that the report of Tahsildar was submitted for exercising Jurisdiction under Rule 176a (2) of the zamindari Abolition and Land Reforms Rules ; hence the same could have been very well relied upon by the Sub-Divisional Officer. It is submitted that no objection was raised to the aforesaid report. ( 7 ) I have considered the submissions raised by the counsel for both the parties. ( 8 ) THE first question which has been raised by the counsel for the petitioners is regarding non-applicability of Rule 176a (2) of the Zamindari Abolition and Land Reforms Rules. It is submitted that no objection was raised to the aforesaid report. ( 7 ) I have considered the submissions raised by the counsel for both the parties. ( 8 ) THE first question which has been raised by the counsel for the petitioners is regarding non-applicability of Rule 176a (2) of the Zamindari Abolition and Land Reforms Rules. The contention of the counsel for the petitioners is that asami lease was granted to the petitioners prior to substitution of the aforesaid Rules, hence the power under the said Rules cannot be exercised. The counsel contended that Rule 176a (2) of the Zamindari Abolition and Land reforms Rules was only prospective and will not apply on the existing lease. It has been contended that the said Rule was substituted vide notification dated 1. 11. 1975 and the lease of the petitioner being prior to 1. 11. 1975, rule is not applicable. Rule 176a (2) of the Zamindari abolition and Land Reforms Rules substituted by notification dated 1. 11. 1975 is quoted below : "176a (2 ). It shall be lawful for the Assistant Collector-in-charge of the Sub-Division to determine at any time the lease in favour of an asami and upon such determination, the asami shall not be entitled to any compensation. " ( 9 ) FOR purposes of this case, Sub-rule (2) is relevant which provides that it shall be lawful for the assistant Collector-in-charge of the Sub-Division to determine at any time the lease in favour of asami and upon such determination, the asami shall not be entitled to any compensation. Rule 176a (2) is a rule which empowers the Sub-Divisional Officer to determine asami lease. This provision gives enabling jurisdiction to the Sub-Divisional Officer. Power under Rule 176a (2)has to be exercised prospectively meaning thereby that the determination of the lease has to be done at any time. The word at any time means a date which has to be subsequent to substitution of the rules. Thus, the power under Rule 176a (2) cannot be exercised retrospectively. The question raised in this case is as to whether this power can be exercised even for leases which were existing on the date when the rule was substituted. The word at any time means a date which has to be subsequent to substitution of the rules. Thus, the power under Rule 176a (2) cannot be exercised retrospectively. The question raised in this case is as to whether this power can be exercised even for leases which were existing on the date when the rule was substituted. The rule do not create any exception with regard to existing leases nor the language of the rule can be read that it shall be lawful for the Assistant Collector to determine at any time the leases granted after the aforesaid Rule. The enabling power given to the Assistant Collector under the said Rule can very well be exercised with regard to an existing lease. The submission of the counsel for the petitioners that the said rule is not attracted in the present case, cannot be accepted. There was no vested right in favour of the petitioners that asami lease shall not be determined. ( 10 ) COMING to the second submission of the counsel for the petitioners that no notice was served on the petitioners before passing of the order by the Sub-Divisional Officer, it is clear from the order of the Sub-Divisional Officer that although the summonses were issued but no one appeared in response to the said summonses. Although the order dated 12. 6. 2001 noticed the fact that summonses were issued to the petitioners but there is no further finding that summonses were duly served. The Sub-Divisional Officer has not recorded any finding that the summonses were duly served and the petitioners inspite of service did not appear. In case the petitioners did not appear after due service of summonses, it was for the Sub-Divisional Officer to proceed further in the case but without recording finding that the summonses were duly served, the order could not be passed. The petitioners in the grounds of revision has taken specific ground that the summonses were not served upon them. The revisional court has not recorded any finding with regard to service of summonses. The report of the Tahsildar referred to in the order mentions two grounds that the period of lease has come to an end and further the petitioners have not fully complied with the terms of the lease. The said report was accepted without petitioners getting any opportunity to rebut the report. The report of the Tahsildar referred to in the order mentions two grounds that the period of lease has come to an end and further the petitioners have not fully complied with the terms of the lease. The said report was accepted without petitioners getting any opportunity to rebut the report. In view of the fact that neither the trial court nor the revisional court recorded finding that the summonses were duly served upon the petitioners, both the orders dated 12. 6. 2001 and 18. 7. 2003 cannot be sustained. The petitioners are entitled for an opportunity before the Sub-Divisional Officer in Suit No. 336 of 2001. ( 11 ) THE third submission of the counsel for the petitioners is to the effect that the report of the tahsildar cannot be accepted. In the present case, the Jurisdiction of the Sub-Divisional Officer under Rule 176a (2) of the Zamindari Abolition and Land Reforms Rules was also invoked. For invoking the jurisdiction of the Sub-Divisional Officer under Rule 176a (2) reports submitted by the Tahsildar cannot be said to be irrelevant. The power under Rule 176a can be exercised by the Sub-Divisional Officer only after receiving information and reports from the revenue authority. The report of the Tahsildar cannot be said to be irrelevant for exercise of powers under rule 176a. The learned counsel for the petitioners placed reliance on the Division Bench decision of this Court in State of U. P. v. Smt. Ram Shri and Anr. , AIR 1976, This Court laid down in paragraph 28 : "28. Learned counsel for the defendant invited our attention to Exhibits A-34 and A-35. Ext. A-34 is a copy of the report of the Tahsildar, without bearing any date, to the Sub-Divisional officer, in which it was mentioned that the defendant was holding her cattle fair over the land in dispute. A map was also prepared by him for showing the area of mela covered by the report which was submitted by him. As mentioned above, although the exact date has not been given in that paper yet it does appear that it was submitted some time in 1959. A map was also prepared by him for showing the area of mela covered by the report which was submitted by him. As mentioned above, although the exact date has not been given in that paper yet it does appear that it was submitted some time in 1959. This report does not advance the case of the defendant inasmuch as there is nothing in it which could show that the entire area of the land involved in the present case was covered by constructions such as that which had been pleaded in the present suit by the defendant. The only thing which is established is that the defendant was holding her cattle market over these plots. This by itself would not entitle the defendant to get any right. Further, we are of the opinion that the report of the tahsildar is an expression of his impression gathered by him at the spot. The report is evidence only of the fact that he had been deputed to make an enquiry and that he came to the conclusion mentioned by him in his report and shown in the map. It will, however, be incorrect to say that the report is admissible under Section 35 of the Evidence Act, as submitted by the learned counsel for the respondent. Had the defendant examined the Tahsildar as a witness, the report might have become admissible under some other provision of the Evidence Act. " ( 12 ) IN the above case suit was filed in the civil court by the State of Uttar Pradesh and the writ petition arise out of the proceedings of original suit filed by the State of Uttar Pradesh, in the aforesaid original suit report of the Tahsildar was sought to be relied which was not accepted by the Court, The aforesaid observations were made in paragraph 28 of the judgment in that context. There can be no dispute that in original suit before the civil court, the report of the Tahsildar was not admissible. The present case is on different facts. The Division Bench of this Court was not considering Rule 176a of the Zamindari Abolition and Land Reforms Rules and the question as to whether the report of the Tahsildar in context of exercise of power under Rule 176a is relevant or not. The present case is on different facts. The Division Bench of this Court was not considering Rule 176a of the Zamindari Abolition and Land Reforms Rules and the question as to whether the report of the Tahsildar in context of exercise of power under Rule 176a is relevant or not. However, since the petitioners did not appear before the Sub-Divisional Officer nor could raise any objection, it is not necessary to express any opinion on this issue. It will be open to the petitioners to appear before the Sub-Divisional Officer and raise all objections which are permissible in law. ( 13 ) IN view of foregoing discussions, the impugned order dated 12. 6. 2001 and the order dated 18. 7. 2003 of the revisional court are set aside. The matter is remanded to the trial court for deciding the case afresh after giving opportunity to the petitioners. Petitioners are directed to file a copy of this order before the trial court within a period of one month from today. Petitioners may also file their written statement within a further period of one month. The Sub-Divisional officer will proceed to pass fresh order expeditiously preferably within a period of three months thereafter. ( 14 ) THE writ petition is allowed to the extent as indicated above. .