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2012 DIGILAW 442 (ALL)

RAM NARESH v. STATE OF U. P.

2012-02-17

PANKAJ MITHAL

body2012
JUDGMENT Hon’ble Pankaj Mithal, J.—Petitioner has filed this writ petition under Article 226 of the Constitution of India for issuance of a writ of certiorari quashing the impugned order dated 31.8.2010 passed by the Sub-Divisional Officer, Shohartgarh, district Siddharth Nagar and the revisional order thereto dated 11.8.2011 passed by the Commissioner, Basti Division, Basti. 2. The impugned orders direct for expunging the name of the petitioner from the revenue records in respect of plot No. 198, area 3 Biswa 12 Dhoor situate in village Patthardeiya, Tappa Deorua, Pargana and Tehsil Shohartgarh, district Siddharth Nagar in exercise of power under Section 33/39 of the United Provinces Land Revenue Act, 1901 (hereinafter referred to as the “Revenue Act”) 3. The case of the petitioner is that the aforesaid plot was leased out to him by the Land Management Committee on 17.8.1992. The petitioner was granted Assami lease. It was not for a specified period. 4. I have heard Sri Tripathi B.G.Bhai, learned counsel for the petitioner, learned Standing Counsel and Sri Anuj Kumar for respondents. 5. The first submission of learned counsel for the petitioner is that as no period has been specified in the lease granted to the petitioner, it has to be treated as a perpetual lease and the respondents cannot expunge the name of the petitioner without cancelling the lease under Section 198(4) of the U.P.Z.A. & L.R. Act (hereinafter referred to as the ‘Act’). Secondly, no order could have been passed against the petitioner without following the procedure prescribed under Sections 201 and 202 of the Act and without notice to him. 6. On behalf of respondents, it has been submitted that the Assami lease is always for a limited period and with the expiry of the lease period it automatically stands determined and, there is no need of passing any order cancelling the same. On the expiry of the lease period the land reverts to the Gaon Sabha and, as such, the impugned orders directing for deleting the name of the petitioner and recording that of the Gaon Sabha are perfectly legal. The service of notice would have been an empty formality and non-issuance of notice does not, in any way, vitiates the order. 7. The service of notice would have been an empty formality and non-issuance of notice does not, in any way, vitiates the order. 7. In paragraph 3 of the writ petition, the petitioner has admitted that his name pursuant to the lease granted by the Land Management Committee was recorded in Khatauni in Class - 3 which means that he was granted an Assami lease. The petitioner has annexed a certificate issued on the application of the petitioner himself, by the Tehsildar, Shohartgarh, dated 18.8.1992 as Annexure - 1 to the writ petition. It certifies states that the petitioner was granted Assami lease by the Land Management Committee vide resolution dated 16.1.1991 and the same was approved by the Sub-Divisional Officer on 30.3.1991. Thus, from the above admission of the petitioner and the certificate of the Tehsildar it is certain that the petitioner was granted an Assami lease of the land in question. 8. The first question which falls for consideration is about the tenure of the Assami lease granted to the petitioner. 9. The copy of the lease deed, if any, executed pursuant the allotment is not on record. The certificate of the Tehsildar referred to above is also silent about the period of lease. 10. Section 197 of the Act authorises the Land Management Committee to admit any person as Assami on land falling in Section 132 of the Act with the previous approval of the Assistant Collector-in-charge of the sub-division. ‘Assami’ has been described under Section 133 of the Act and it includes every person admitted by the Land Management Committee as a lessee of the land described in Section 132 of the Act, on or after the date of vesting. 11. Admittedly, petitioner has been admitted as Assami after the date of vesting by the Land Management Committee. He has not acquired rights as Assami in any other manner. Therefore, his admission as Assami is over land of public utility as detailed in Section 132 of the Act. 12. This Court in the case of Hari Ram v. Collector, 2004 (97) RD 360, observed that where there is no material on record to establish the period of Assami lease it shall be assumed to be a lease from year to year only. This decision has been followed with approval by this Court in Ashok Kumar v. State of U.P. and others, 2011 (7) ADJ 748 . 13. This decision has been followed with approval by this Court in Ashok Kumar v. State of U.P. and others, 2011 (7) ADJ 748 . 13. Rule 176-A of the Rules framed under the Act, (hereinafter referred to the as the ‘Rules’) as it stands today w.e.f. 1.11.1975, provides that no Assami lease shall be made for a period exceeding five years. Therefore, in case of period of lease not being specified, it shall be treated as one on year to year basis with the maximum period of five years. Thus, the lease granted to the petitioner allegedly on 17.8.1992 cannot extend beyond 16.8.1997. 14. Now coming to the procedure to be followed for the eviction of the holder of Assami lease, reference may be had to the decision of this Court in the case of Ram Deo and others v. State of U.P. and others, 2008(4) ADJ 625 . In the said case his Lordship of this Court held that it is not necessary to follow the procedure prescribed under Section 202 of the Act and it is sufficient for the Sub-Divisional Officer to determine the Assami lease under Rule 176-A of the Rules but the said power can be exercised by issuing notice the party concern. 15. The aforesaid decision finds approval of this Court in Ashok Kumar (Supra) wherein on placing reliance on various authorities, the Court in dealing with Assami lease, held that where the Statute itself determines the period no fresh determination is required and the person unauthorizedly occupying the land can be evicted by taking recourse to summary proceedings or to any other mode after putting him to notice and the detailed procedure prescribed for determination of lease and eviction under Section 201 and 202 of the Act is not necessary to be followed. 16. Another submission which requires consideration is whether the lease of the petitioner requires cancellation under Section 198(4) of the Act. 17. Grant of Assami lease is altogether different from admission of any person as Bhumidhar with non-transferable rights on the land of the Gaon Sabha other than the land specified in Section 132 of the Act for which allotment is made under Section 195 of the Act in accordance with the preference provided in Section 198. 17. Grant of Assami lease is altogether different from admission of any person as Bhumidhar with non-transferable rights on the land of the Gaon Sabha other than the land specified in Section 132 of the Act for which allotment is made under Section 195 of the Act in accordance with the preference provided in Section 198. The procedure for cancellation of lease provided under Section 198(4) of the Act is in connection with and related to the grant of lease on Gaon Sabha land other than those specified under Section 132 of the Act as bhoomidhar with non-transferable rights. The said procedure as such is not applicable to Assami lease covered by Section 197 of the Act. 18. In view of the above, the submission that the Assami lease granted to the petitioner continues as it has not been cancelled under Section 198(4) of the Act has no substance. The Assami lease of the petitioner stands determined with efflux of time. 19. In Kehri Singh and others v. State of U.P. through Collector, Mathura, 2007(5) ADJ 262 , it has been provided that the holder of Assami lease is liable to eviction in a summary manner after expiry of period of lease by expunging the name from the revenue records, after providing opportunity of hearing. 20. In Nasir Hasan v. District Deputy Director of Consolidation/Collector, Bijnor and others, 2009(9) ADJ 756 , this Court relying upon various decisions of the Apex Court held that where someone complains of denial of opportunity of hearing, he must show if opportunity was given given him what plausible cause he would have taken to defend himself. Thus, it was held that as the petitioner was unable to justify continuance of possession after expiry of Assami lease, he was not entitle to any relief on account of denial of opportunity. In other words, notice or opportunity of hearing is not an empty formality and would not be necessary if the person complaining of denial of opportunity of hearing has no cause to show or even if shown it would not ultimately alter the result. 21. The aforesaid decision has been followed in the case of Mukut Singh v. State of U.P. and others, in Writ Petition No. 749 of 2010 decided on 13 January, 2010. 22. 21. The aforesaid decision has been followed in the case of Mukut Singh v. State of U.P. and others, in Writ Petition No. 749 of 2010 decided on 13 January, 2010. 22. A similar view was expressed in Chhotti v. State of U.P. and others, 2009(10) ADJ 761 , that Assami lease holder has no right to continue in possession on the expiry of lease and his name is liable to be expunged from revenue records. No opportunity of hearing is necessary when nothing plausible has been stated about the defence which may also change the outcome. 23. In the instant case also the Assami lease of the petitioner stands determined by the Statute itself i.e. by virtue of Rule 176-A of the Rules on the expiry of five years from 17.8.1992. Therefore, there was no necessity for any fresh determination and the petitioner was liable for eviction by expunging of his name in the revenue records for which even notice or opportunity of hearing would have been an empty formality as the petitioner is unable to justify his continuance in possession over the land in dispute after expiry of the lease period. 24. In the end, learned counsel for the petitioner submitted that the Assami lease of the petitioner may be renewed or at least he may be reconsidered for grant of fresh Assami lease. In support, he has relied upon a decision of this Court in the case of Ramesh Chandra v. State of U.P. and others, in Writ Petition No. 19865 of 2008 decided on 2.5.2008. In the aforesaid decision, while dealing with Assami lease, the Court observed that before evicting Assami lease holder he should be reconsidered for re-allotment of Assami lease provided he has not violated any term and condition of the lease earlier granted and continues to be eligible. 25. Law is settled that if something is to be done, it has to be done in the manner provided in the Act and in no other way. The Act does not provide for the renewal of the Assami lease after five years or for the consideration of grant of fresh Assami lease to the same person before evicting him on the expiry of his earlier lease. Any such direction to consider for grant of fresh Assami lease would certainly be contrary to the mandate of the law. The Act does not provide for the renewal of the Assami lease after five years or for the consideration of grant of fresh Assami lease to the same person before evicting him on the expiry of his earlier lease. Any such direction to consider for grant of fresh Assami lease would certainly be contrary to the mandate of the law. It would frustrate the very object with which Assami lease under Section 197 of the Act read with Rule 176-A are granted. The purpose of the aforesaid provision is to make available the benefit of land to the maximum number of the eligible villagers and to rotate it amongst them periodically. 26. In Hari Ram (supra) while considering the object behind the proviso added to Rule 176-A observed that the intention of the provision is clear that the lease should be granted to an Assami for a maximum period of five years only. This has been enacted to give effect to the constitutional mandate contained in Article 39(b) of the Constitution of India to distribute material resources of the community to best subserve the common good. The restriction of five years of an Assami lease is only for the purpose that lease may again be granted after five years so that the land be rotated amongst the eligible villagers. 27. A learned Single Judge dealing with similar aspect in the case of Satyavir alias Satvir v. Gaon Sabha village Inampura through Pradhan and others, 2010 (109) RD 468, repelled a similar argument and refused to issue any such direction for fresh allotment of Assami lease holding that it would amount to infraction of law. 28. The petitioner is admittedly an Assami inducted by the Land Management Committee. He has no right to remain in possession of the land in question on the expiry of the lease which stands determined by efflux of time in view of Rule 176-A of the Rules. He ought to have moved out from the land on his own accord immediately on expiry of the lease period. His occupation of the land thereafter is that of an unauthorised occupant. An unauthorised occupant cannot be protected in exercise of extra-ordinary writ jurisdiction under Article 226 of the Constitution of India. 29. He ought to have moved out from the land on his own accord immediately on expiry of the lease period. His occupation of the land thereafter is that of an unauthorised occupant. An unauthorised occupant cannot be protected in exercise of extra-ordinary writ jurisdiction under Article 226 of the Constitution of India. 29. In view of above, all submissions of learned counsel for the petitioner fail and no case for any interference in exercise of extra ordinary writ jurisdiction is made out. The writ petition lacs merit and is dismissed with no orders as to costs. ——————