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2005 DIGILAW 461 (UTT)

Shashi Birmani v. Board of Revenue U. P.

2005-10-27

RAJESH TANDON

body2005
JUDGMENT Hon'ble Rajesh Tandon, J.-Heard Sri Alok Singh learned Senior Advocate assisted by Sri Gopal Narain learned counsel for the petitioner and Sri Mohan Chandra Tiwari learned Standing counsel and Diwakar Chamoli learned counsel for the respondent No.5. 2. By the present writ petition the petitioner has prayed for a writ of certiorari quashing the order dated 9-10-1986 passed in 2nd appeal No. 32 of 85-86 by Board of Revenue at Allahabad and 15-5-1986 passed by the commissioner. 3. Briefly stated according to the case of the petitioner he is the Bhumidhar in possession over plot No.1309/2 measuring 2 acres situated in village Central Hope Town" Pargana Patwain Tehsil Dehradun, District Dehradun. 4. Prior to the petitioner, respondent No.6 Miss N.B. Lal was the Bhumidhar in possession over the land in dispute and she transferred the land in favour of the petitioner through sale deed dated 4th June 1982 along with the possession. A case No. 49 of 1972 under Section 122-B of the U.P.Z.A.L.R Act was instituted against the respondent No.6 in the court of Tehsildar. The objections were filed by the respondent No.6 challenging the notice issued under Section 122-B of the UPZALR Act on the ground that her father was in possession before the Abolition of Zamindari over the land in dispute and after his death she has been in possession on the land and as such she has, obtained the Sirdari Rights over the land in dispute. 5. A perusal of the order dated 28-6-1972 shows that the proceedings were initiated under Section 122-B of the U.P.Z.A.L.R Act. Following observations were made by the S.D.O dated 28-06-197 - while passing the order : 6. This dispute relates to plot No. 1309 of 2001 area 2.00 acres. The O.P. has contended that his land in dispute was in her possession since long i.e. from the lifetime of her father. In support of her contention of the O.P. has examined herself. The lekpal has supported the O.P.S. contention and has also stated that the O.P. was a landless person. In view of this the proceedings are dropped and the notice is withdrawn. It is further ordered that the file shall be submitted to the S.D.O. for favour of fixing Rs. 9.60 paise as land revenue over this land from 1370 fasli. 7. In view of this the proceedings are dropped and the notice is withdrawn. It is further ordered that the file shall be submitted to the S.D.O. for favour of fixing Rs. 9.60 paise as land revenue over this land from 1370 fasli. 7. As will appear from the order of S.D.O dated 28-6-1972, the respondent No. 3 considered the report to Tehsildar and fixed the land revenue and declared the respondent No.6 as Sirdar over the land in dispute and the rent was fixed to the extent of Rs. 9.60 paise from 1370 fasli. The name of the respondent No.6 was duly mutated on 1st July 1972 and was recorded as Sirdar of the land in dispute in the revenue papers. On 4-08-1972 the respondent No.6 deposited twenty times of the land revenue for getting the Bhumidari rights and after depositing the same she was recorded as Bhumidar of the land in dispute in the Khatauni relating to the year 1388 to 1393 fasli. On 4-6-1982, respondent No.6 transferred the said land in favour of the petitioner after having obtained the Bhumidari rights. 8. On 4-6-1982, it appears that the land vested with the state on account of the transfer having taken place in contravention of the Act as Sirdar has no right to transfer the said land. The petitioner has filed a case in which respondent No.6 filed his objections stating therein that Miss N.B. Lal was continuing his possession and the petitioner having paid Rs. 18,00/-, the sale deed was executed on 4-6-1982 after she has become the Bhumidhar , with transferable rights and therefore the present proceeding are without jurisdiction. The objections filed by the petitioner have been narrated in paragraphs No.3 and 8 of the affidavit, the same are quoted below: 9. Later on the proceedings under Section 198 of the U.P.Z.A.L.R. Act was also started against the petitioner and the same was ultimately dropped, on account of the fact that the status of the petitioner is Sirdar of the land in dispute by the order of the S.D.O. dated 30.6.1977. The same is quoted below: 10. Therefore, the proceeding under Section 166/167 of the U.P.A.Z.L.R. Act was registered being case No. 18/83-84. The authority concerned on 21.7.1984 has recorded the finding to the following effect: 11. The same is quoted below: 10. Therefore, the proceeding under Section 166/167 of the U.P.A.Z.L.R. Act was registered being case No. 18/83-84. The authority concerned on 21.7.1984 has recorded the finding to the following effect: 11. As will appear from the aforesaid findings that on 29.05.1972, the proceeding under Section 115-C were dropped and from 1370 fasli, the land revenue to the extent of Rs. 9.60 paise was fixed and mutation was recorded in favour of the petitioner and by order dated 4.8.1972, twenty times of the land revenue was deposited by the respondent No.6 and Sanad was obtained on 14.8.1972 and thereafter he has become Bhumidar in accordance with the provisions of Section 130 of the U.P.Z.A.L.R. Act. The Assistant Collector has passed the order quashing the proceedings under Section 166/167 of the UPZALR Act. The operative portion is quoted below: 12. The State of D.P. as well as Gaon Sabha went in appeal being appeal No. 18/83-84, the Appellate Court while recording the finding has observed as under: . 13. The Commissioner .has also recorded the finding that in the Khautani relating to the year 1988-1993 fasli, the name of Miss N.B. Lal was recorded on plot No. 1309/2 as Bhumidar having transferable rights and as such a valid title has passed on the 'petitioner and as such the transfer cannot be said to be illegal so as to invoke the provisions of Section 166/167 of the D.P.ZA.L.R Act. 14. Further finding has been recorded that Miss N.B. Lal is the Bhumidar having the transferable rights recorded as back as in the year 1972 and therefore no inference can be drawn that there was an illegal transfer so as to affect the rights of the petitioner at this stage. 15. Petitioner has submitted that the commissioner vide his order dated 15-5-1986 having dropped the proceedings under Section 166/167 of the U.P.Z.A.L.R Act. It was not open for him to record the finding for instituting the suit and the direction to that effect was wholly unwarranted in view of the finding that the transfer has been made in favour of the petitioner by a Bhumidar, who was recorded as the Bhumidar with transferable rights in the revenue records. The appeals were preferred from both the sides and the appellate court dismissed the appeal of the State. The said finding of the commissioner having become final. The appeals were preferred from both the sides and the appellate court dismissed the appeal of the State. The said finding of the commissioner having become final. The 2nd appeal was preferred by the petitioner and no appeal having been preferred by the State, the order passed by the commissioner dated 15-5-1986 was confirmed resulting in dropping the proceeding under Section 166/167 of the U.P.Z.A.L.R Act and quashing the notices dated 6-7-1983 and 29-10-1983. 16. Consequently, it was not open for the commissioner to allow the appeal partly as the relief which was sought by the petition was only to the effect of quashing this orders dated 6-6-1983 and 29-10-1983. The commissioner has also quashed the order dated 21-7-1984 and as such it was not open for the petitioner to have observed with regard to the filing of the suit so as to give the new lease and prolong the litigation which was also being concluded by dropping the proceeding. 17. The Board of revenue ought to have considered that the dropping of proceedings under Section 166/167 of the D.P.Z.A.L.R has never been challenged before the Board of revenue by the: state and as such the observations of the Board of revenue permitting to file the declaratory suit will be permitting a new cause of action which cannot be allowed. 18. In view of the observation made above the direction given to the government to file the suit being without jurisdiction and not the subject matter of the proceeding under Section 166/167 of the U.P.Z.A.L.R Act, the same is quashed and the order passed by the commissioner, dated 15-5-1986 is partly allowed. 19. Consequently, the appellate order is quashed to that extent and the 2nd appeal is allowed. 20. Writ petition is allowed. No order as to costs.