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2008 DIGILAW 2266 (ALL)

Aneesa Khatoon v. State of U. P.

2008-11-14

RAJES KUMAR

body2008
JUDGMENT : Rajes Kumar, J. By means of the present writ petition, petitioner is challenging the order of the Additional Commissioner (J), Moradabad dated 25.08.2008 passed in revision No. 76/2007-08, u/s 333 of U.P.Z.A. & L.R. Act, Aneesa Khatoon v. State of U.P. and Ors., by which the revision filed by the petitioner has been dismissed. 2. Brief facts of the case giving rise to the present writ petition is that the dispute relates to the land of khasra No. 246 (0.506 hect.) of khata No. 206 situated in village Mohiuddinpur Pargana Kiratpur Tehsil Nazibabad, district Bijnor. It is claimed that the said land was allotted to the father of the petitioner, Nazir Ahmad and uncle Chhidda, both sons of Chhajju @ Majhar in the year 1953 (1360 Fasli) for agriculture purpose as Asami patta. They have been cultivating the same on payment of Rs. 6/- to the Revenue Officer. They have been recorded in Clause 3 category in khatauni. Chhidda died issuless. It is the case of the petitioner that on the death of Nazir Ahmad, Nazar Hasan, the son of Nazir Ahmad inherited the right over the property and came in possession over it. It is claimed that on the death of Nazir Ahmad, the name of Nazar Hasan was recorded in khatauni in Clause 3 category over the allotted land. 3. It appears that Tehsildar has given a report dated 08.04.2002 to the respondent No. 3 alleging that the name of Nazar Hasan recorded in Clause 3 as Asami lease is to be cancelled as the period of lease had come to an end after expiry of five years. On the receipt of the aforesaid report of the Tehsildar, Sub Divisional Magistrate has registered the case No. 81 of 2002, State v. Nazar Hasan under Rule 176-A(2) of U.P.Z.A. & L.R. Rules (hereinafter referred to as "Rules"). Respondent No. 3 vide order dated 30.04.2002 accepted the report of Tehsildar and cancelled the lease and directed to enter the name of Gaon Sabha. 4. It is claimed that during the pendency of the proceedings before Sub Divisional Magistrate, Nazar Hasan died on 10.04.2002 leaving behind the petitioner as legal heirs. Nazar Ahmad was unmarried and was residing with the petitioner. Petitioner is the sister of Nazar Hasan. 5. 4. It is claimed that during the pendency of the proceedings before Sub Divisional Magistrate, Nazar Hasan died on 10.04.2002 leaving behind the petitioner as legal heirs. Nazar Ahmad was unmarried and was residing with the petitioner. Petitioner is the sister of Nazar Hasan. 5. Feeling aggrieved by the order dated 30.04.2002 passed by Sub Divisional Magistrate, petitioner filed revision No. 782 of 2001-02 u/s 333 of U.P.Z.A. & L.R. Act (hereinafter referred to as "Act"). Additional Commissioner vide order dated 16.09.2004 allowed the revision and set aside the order of Sub Divisional Magistrate dated 30.04.2002 and remanded back the matter to Sub Divisional Magistrate to decide the matter afresh after giving opportunity of hearing to the petitioner. Thereafter, the petitioner appeared before the Sub Divisional Magistrate and filed her objection dated 03.03.2005 and claimed her right over the land in dispute being legal heirs. Sub Divisional Magistrate vide order dated 22.11.2007 rejected the objection of the petitioner on the ground that Nazar Hasan died, therefore, the allotment automatically come to an end. Aggrieved by the order, petitioner filed revision No. 76 of 2007-08 u/s 333 of the Act, which has been dismissed by the impugned order. 6. Additional Commissioner held, that before the land was given for Asami lease it was cattle field and can be used only for growing singhara and sometimes can be used for agriculture purpose. It is the land for public use u/s 132 of the Act on which no bhumidhar right can be given. He upheld the order of the court below that on the death of Nazar Hasan, lease stand cancelled. He further held that no evidence has been adduced that the revisionist is in possession over the land prior to 1952. 7. Learned Counsel for the petitioner submitted that the petitioner has heridatory right over the land in view of the provisions of 171(1) of the Act. The period of five years will not apply inasmuch as the lease was prior to 1975 when the period of five years has been introduced for Asami lease. He submitted that in the land in dispute the name of Nazar Ahmad was recorded as Asami in 1360 Fasli and on the death of Nazar Ahmad, the name of his son Nazar Hasan was recorded as Asami, which is clear from the Khatauni of the year 1415-1420 Fasli, annexure-12 to the writ petition. 8. He submitted that in the land in dispute the name of Nazar Ahmad was recorded as Asami in 1360 Fasli and on the death of Nazar Ahmad, the name of his son Nazar Hasan was recorded as Asami, which is clear from the Khatauni of the year 1415-1420 Fasli, annexure-12 to the writ petition. 8. He submitted that the lease is not for any specific period, therefore, the provision of Rule 176-A of the Rules does not apply and as per the provision of Section 171(2)(i) being the married sister of Hazar Hasan, the petitioner is entitled to inherit the right of Nazar Hasan over the land in dispute and be treated as asami. He further submitted that Parganadhikari has passed the order without giving the opportunity of hearing to the petitioner. 9. Learned Standing Counsel submitted that the impugned order has been passed after giving opportunity of hearing. Therefore, it is wrong to say that die order has been passed without giving opportunity of hearing. He submitted that there is no evidence on record and as per own admission of learned Counsel for the petitioner the lease was not for any specified period, it means that asami lease was on year to year basis. He further submitted that in view of the proviso to Rule 176-A of the Rules, the asami lease should not be for more than five years, after its amendment in the year 1975. Therefore, the asami lease could not continue for more than five years. Since the five years had expired, the lease could not be extended and even u/s 176(2) of the Act, it could not be determined in favour of the petitioner. Therefore, the question of inheritance of the lease hold right by the petitioner does not arise. 10. I have heard rival submissions of learned Counsel for the parties and have gone through the impugned orders and the relevant documents annexed alongwith the writ petition. 11. Therefore, the question of inheritance of the lease hold right by the petitioner does not arise. 10. I have heard rival submissions of learned Counsel for the parties and have gone through the impugned orders and the relevant documents annexed alongwith the writ petition. 11. Rules 176-A of the Rules, as substituted on 1st November, 1975, is extracted below: 176-A. (1) On receipt of the list in Z.A. Form 57-B with the order of the Assistant Collector in-charge of the Sub-Division, the Chairman of the Land Management Committee shall call the person whose selection for allotment of land has been approved by the Assistant Collector in-charge of the Sub-Division and shall furnish to him a certificate in Z.A. Form 58 and shall get a counterpart in Z.A. Form 58-A executed by him. If the land sought to be allotted is a land referred to in Section 132, the person concerned shall be furnished with a certificate in Z.A. Form 59 and shall be asked to execute a counterpart in Z.A. Form 59-D: Provided that no lease shall be made to an asami for a period exceeding five years. (2) It shall be lawful for the Assistant Collector-in-charge of the Sub-Division to determine at any time the lease is favour of an asami and upon such determination, the asami shall not be entitled to any compensation. (3) Every order of determination of lease under Sub-rule (2) shall be effective from the commencement of the agricultural year following the date of the order. (4) Where the decision of the Land Management Committee regarding admission to any land is not approved by the Assistant Collector-in-charge of the Sub-Division, steps will be taken afresh for settlement of such land in accordance with the procedure laid down in Sub-rule (1) read with Rules 173 to 176-A. All contracts relating to a lease, licence or allotment of land shall be executed in duplicate. One copy of the contract shall be given to the lessee, licensee or allottee and the other copy shall be retained by the Land Management Committee for record. 12. Rule 176-A of the Rules came up for consideration before this Court in the case of Hari Ram v. Collector, District Saharanpur/Addl. Collector and Ors. reported in 2004 97 RD 360. One copy of the contract shall be given to the lessee, licensee or allottee and the other copy shall be retained by the Land Management Committee for record. 12. Rule 176-A of the Rules came up for consideration before this Court in the case of Hari Ram v. Collector, District Saharanpur/Addl. Collector and Ors. reported in 2004 97 RD 360. This Court held as follows: Para 19: Rule 176-A of the Rules is a Rule, which has been substituted in the Rules by notification dated 1st November, 1975. Proviso to Sub-rule (1) provides that no lease shall be made to an asami for a period exceeding five years. The intention of the provisions is clear that lease should be granted to asami for a period of five years. The object of provisions contained in Chapter VII pertaining to grant of lease by Land Management Committee is a provision which has been enacted to give effect the constitutional mandate as contained in Article 39(b) of the Constitution. The object contained in Article 39(b) is distribution of material resources of the community to best sub-serve the common hood. The restriction of five years of an asami lease is only for the purpose that lease be again granted after give years to best sub-serve the common hood. Section 198 of U.P. Zamindari Abolition and Land Reforms Act Sub-clause (1) provides for order of preference in admitting persons to land under Sections 195 and 197 of the Act. The object can be illustrated by taking an example, asami lease is granted to a bhumidhar or asami residing in the circle holding land less than 1.26 hectares for a period of five years. After expiry of period of five years the person who was granted asami lease has added in his holding and possesses land more than 1.26 hectares, hence he will go out of the preferred categories and when the next step will be taken for granting lease some more deserving persons may be there who can be granted the lease. The object of limiting the lease for five years is to subserve the common hood and the exercise of settling the land is to be repeated after expiry of the lease considering the field of abilities at the time of exercise. The object of limiting the lease for five years is to subserve the common hood and the exercise of settling the land is to be repeated after expiry of the lease considering the field of abilities at the time of exercise. Sub-rule (2) of Rule 176-A is a provision which empowers the Assistant Collector to determine at any time the lease in favour of an asami. From the materials brought on the record, it is not clear as to whether leases granted to the petitioners were for a fixed period or whether from year to year. There being no material on the record to establish that leases granted to the petitioners were for the fixed period, the asami leases granted to the petitioners are assumed to be leases from year to year. Sub-rule (2) of Rule 176-A empowers the Assistant Collector to determine at any time the lease. The determination can be done by the Assistant Collector even before expiry of the period of lease. From the provisions of the Act and the Rules, it is clear that prior to Rule 176-A there was no provision in the Rules for determining the lease. The leases are granted to an asami with the previous approval of the Assistant Collector in-charge. In the present case we are concerned only with the grant of lease u/s 197 which refers to Section 132 of the Act. The power thus to be exercised by the Assistant Collector under Sub-rule (2) of Rule 176-A is with regard to only above categories of leases. Para 21: As observed above, there is no material on the record to suggest that leases were for a fixed period. Asami leases of the petitioners have been taken to be year to year and in the present case leases being year to year, for determination of the lease orders are required to be passed. However, the words "at any time" used in Sub-rule (2) of Rule 176-A are wide enough to exercise the power when the lessee continues with the lease. There is no provision in the Act or the Rules that after expiry of the period of lease, leases shall automatically stand determined and right extinguished. There being no provision in the Act and Rules for automatic determination or extinction of the right for determining the rights a decision has to be taken. There is no provision in the Act or the Rules that after expiry of the period of lease, leases shall automatically stand determined and right extinguished. There being no provision in the Act and Rules for automatic determination or extinction of the right for determining the rights a decision has to be taken. In about view of the matter, the arguments of the petitioner's Counsel cannot be accepted that in the facts of the present case power under Rule 176-A could not have been exercised by the Assistant Collector. Rule 176-A(2) uses the word "determine". After determination of the lease the right which flows from the lease will naturally be extinguished. As noted above, Section 194(c) uses two phrases, namely, asami has been ejected or his interest therein have otherwise extinguished. This provision also makes it clear that Land Management Committee can take over land from asami either when he has been ejected or his interest therein have otherwise extinguished. The word "otherwise extinguished" used in Sub-clause (c), as noted above, can also take in its purview the extinction of the lessee's right by determination of the lease under Rule 176-A(2). The exercise of power under Rule 176-A is for carrying out the purpose of the Act which Rule has been framed u/s 230 for carrying out the provisions of Chapter-VIII. 13. There is no material on record to suggest that the lease was for a fixed period. Therefore, the asami lease has to be taken on year to year basis. After the amendment of Rule 176-A of the Rules and in view of proviso, the asami lease can not be for more than five years. Therefore, the asami lease even if granted prior to 1975 could not continue for more than five years in view of proviso of Rule 176-A of the Rules. 14. Even the determination of the lease under Rule 176-A(2) of the Rules can not take place for more than five years. Thus, the asami lease granted to Nazar Ahmad and claimed to be subsequent) recorded in the name of Nazar Hasan son of Nazar Ahmad in the revenue records in 1415-1420 Fasli year expired much before the death of Nazar Hasan, who died on 10.04.2002. Therefore, the question of inheritance of lease hold right by the petitioner being married sister u/s 171(2)(i) of the Act does not arise. Therefore, the question of inheritance of lease hold right by the petitioner being married sister u/s 171(2)(i) of the Act does not arise. Even the lease hold right can not be settled in favour of the petitioner under Rule 176-A(2) of the Rules. 15. It may be mentioned here that after the remand of the case, the orders have been passed after giving opportunity of hearing, therefore, it can to be said that the orders have been passed without giving opportunity of hearing. 16. In view of the above, the writ petition is devoid of any merit and is accordingly, dismissed.