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2014 DIGILAW 1647 (ALL)

Renu v. Union of India

2014-05-20

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J.: - 1. Heard Sri U.N. Sharma, Senior Advocate assisted by Sri S.P. Giri, for the petitioner, Standing Counsel, for State of U.P. and Sri Ishan Shishu, Standing Counsel, for Union of India, Sri Prakash Padia, Standing Counsel for Indian Oil Corporation. As there is no factual controversy as such the counsels appearing for the respondents do not propose to file Counter Affidavit. With the consent of the parties, the writ petition is decided finally. 2. This writ petition has been filed for quashing the orders of Additional Collector dated 17.10.2013, declaring the lease deed dated 28.01.2011 as void and vesting the land in dispute in State of U.P. and Board of Revenue U.P. dated 13.02.2014, dismissing revision of the petitioner from the aforesaid order, arising out of proceeding under Section 156, 166, 167 and 189 (aa) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act). The petitioner has also prayed for mandamus, directing the Collector to issue "No Objection Certificate" in favour of the petitioner for establishing 'Retail Out Let' of Indian Oil Corporation Ltd. at village Nagla Arrua, tahsil Kirawali, district Agra. But this relief is based on a separate cause of action, for which this Court has no jurisdiction as such the petitioner is given liberty to file separate writ petition for this prayer before appropriate Court. 3. Indian Oil Corporation Ltd. made advertisement dated 01.07.2010 for awarding dealership of 'Retail Out Let' of the category of "Kisan Sewa Kendra', for the rural areas. For village Nagla Arrua, tahsil Kirawali, district Agra, one such Retail Out Let was advertized and reserved for 'Physically Handicap (Woman)'. The petitioner also applied for grant of license of dealership. According to the norms, as prescribed in the brochure, the petitioner was required to own a land of the size of 40 meter X 40 meter, either in her ownership or on lease. Veer Narain Singh son of Ratan Singh, who was a co-sharer of 1/2 share in plot 720 of village Nagla Arrua, tahsil Kirawali, district Agra, agreed to give required land on lease. He constructed to boundary wall of the required land on the roadside and also raised constructions in it. He executed a registered lease deed dated 28.01.2011 of the land in dispute in favour of the petitioner. He constructed to boundary wall of the required land on the roadside and also raised constructions in it. He executed a registered lease deed dated 28.01.2011 of the land in dispute in favour of the petitioner. Thereafter, they filed an application (registered as Case No. 16 of 2011-12) under Section 143 of the Act, for declaring the land in dispute as 'non-agricultural land'. Sub-Divisional Officer, after holding necessary inquiry, by order dated 27.03.2012 declared the land in dispute as 'non-agricultural land' and also sent necessary information to Sub-Registrar for registration as required under Section 145 of the Act. 4. State of U.P. and Gaon Sabha filed an application dated 30.03.2013 before the Collector that Veer Narain Singh had let out an area of 1600 squire meter of plot 720 (total area 1.370 hectare) of village Nagla Arrua, tahsil Kirawali, district Agra, through lease deed dated 28.01.2011 to the petitioner, in violation of Section 156 of the Act as such the land in dispute was vested in State of U.P. from the date of lease deed and possession over it be taken. The Collector, by order dated 30.03.2013 directed for registering the case and issuing notices to the petitioner and Veer Narain Singh. Additional Collector issued a show cause notice dated 04.04.2013 to the petitioner and Veer Narain Singh, under Section 156, 166, 167 and 189 (aa) of the Act, alleging therein that Land Management Officer, through his report dated 30.03.2013, informed that you had let out an area of 1600 squire meter of plot 720 (total area 1.370 hectare) of village Nagla Arrua, tahsil Kirawali, district Agra, through lease deed dated 28.01.2011 to the petitioner, in violation of Section 156 of the Act as such the land in dispute was vested in State of U.P. from the date of lease deed. The petitioner and Veer Narain Singh contested the show cause notice and filed their reply, stating therein that the land in dispute was converted as 'non-agricultural land' and thereafter the lease deed dated 28.01.2011 was executed. On their application, Sub-Divisional Officer, by order dated 27.03.2012 has declared the land as 'non-agricultural land' under the provisions of Section 143 of the Act. Sub-Divisional Officer also granted 'No Objection Certificate" on 10.01.2012. The declaration under Section 143 of the Act, was already made as such this proceeding is not maintainable. On their application, Sub-Divisional Officer, by order dated 27.03.2012 has declared the land as 'non-agricultural land' under the provisions of Section 143 of the Act. Sub-Divisional Officer also granted 'No Objection Certificate" on 10.01.2012. The declaration under Section 143 of the Act, was already made as such this proceeding is not maintainable. In any case, provisions of Section 166, 167 and 189 (aa) of the Act of the Act are not applicable as even if the land in dispute is treated as an agricultural land, the leasee will become 'bhumidhar with non-transferable right' under Section 165 of the Act. District Government Counsel (Revenue) also filed a reply to the objection of the petitioner. 5. Additional Collector, after hearing the parties by order dated 17.10.2013 held that as Veer Narain Singh executed a lease deed dated 28.01.2011, of an area of 1600 squire meter of plot 720 (total area 1.370 hectare) of village Nagla Arrua, tahsil Kirawali, district Agra, in favour of the petitioner, as such the provisions of Section 156 of the Act has been violated and the lease deed is void under Section 166 of the Act. The land in dispute was vested in State of U.P. The petitioner filed a revision (registered as Revision No. 41 of 2013-14) from the aforesaid order. The revision was heard by the Member, Board of Revenue U.P., who by order dated 13.02.2014 dismissed the revision. Hence this writ petition has been filed. 6. The counsel for the petitioner submitted that admittedly Veer Narain Singh was bhumidhar of the land in dispute. Under Section 142 of the Act, a bhumidhar has right to use his holding for any purpose. Veer Narain Singh raised constructions over the disputed land and converted it as 'non-agricultural land'. Thereafter, he executed the lease deed dated 28.01.2011 in favor of the petitioner. The fact that the constructions have been raised over the land in dispute, has been mentioned in the lease deed. On the application filed by Veer Narain Singh and the petitioner, Sub-Divisional Officer, by order dated 27.03.2012 declared the land as 'non-agricultural land' under the provisions of Section 143 of the Act. The fact that the constructions have been raised over the land in dispute, has been mentioned in the lease deed. On the application filed by Veer Narain Singh and the petitioner, Sub-Divisional Officer, by order dated 27.03.2012 declared the land as 'non-agricultural land' under the provisions of Section 143 of the Act. The order of Sub-Divisional Officer dated 27.03.2012 is conclusive of the fact that the land in dispute was not 'land' with the meaning of Section 3 (14) of the Act as such the provisions of Section 156, 166, 167 and 189 (aa) of the Act are not applicable. Sub-Divisional Officer also granted "No Objection Certificate" on 10.01.2012. In any case, the consequence of violation of Section 156 of the Act has been provided under Section 165 of the Act, which has an overriding effect and provisions of Section 166, 167 and 189 (aa) of the Act are not applicable as the leasee will become 'bhumidhar with non-transferable right' under Section 165 of the Act. The orders passed by the courts below are illegal and liable to be set aside. 7. In reply to the aforesaid arguments, Standing Counsel submitted that although the petitioner has become 'bhumidhar with non-transferable right' of the land let out to her through lease deed dated 28.01.2011 but in view of Section 142 (2) of the Act, she has right to use the land in dispute for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture, poultry farming and social forestry. The petitioner has no right to use the land in dispute for commercial purpose. 'No Objection Certificate' for the purposes of establishing Retail Out Let of Indian Oil Corporation Ltd. cannot be granted. 8. I have considered the arguments of counsel for the parties and examined the record. The 'land' has been defined under Section 3 (14) of the Act as "Land, except in Sections 109, 143 and 144 and Chapter VII means land held or occupied for the purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming". This Court in Panna Lal Vs. Chhabinath, 1991 AllCJ 296 (DB), Mahendra Pratap Singh Vs. State of U.P., 2012 AllCJ 1005 and Ajaz Carpets (M/S) Vs. M/S Birla International Pvt. Ltd., 2013 AllCJ 2041 held that Revenue Court has no jurisdiction over 'non-agricultural land'. This Court in Panna Lal Vs. Chhabinath, 1991 AllCJ 296 (DB), Mahendra Pratap Singh Vs. State of U.P., 2012 AllCJ 1005 and Ajaz Carpets (M/S) Vs. M/S Birla International Pvt. Ltd., 2013 AllCJ 2041 held that Revenue Court has no jurisdiction over 'non-agricultural land'. If the issue as to whether the land is 'agricultural land' or 'non-agricultural land' arises, then Assistant Collector has exclusive jurisdiction to decide this issue either under Section 143 or under Section 331-A of the Act. In this case, Assistant Collector, by order dated 27.03.2012, has already declared the land as 'non-agricultural land' under the provisions of Section 143 of the Act. However, as stated above, this writ petition has been confined to the proceedings initiated on the 'show cause notice' dated 04.04.2013 and orders passed in it and the issue relating to 'No Objection Certificate' for the purposes of establishing Retail Out Let of Indian Oil Corporation Ltd. has been left open to be raised before appropriate Court as such this Court left open this issue to be decided in the appropriate forum. 9. So far as 'show cause notice' dated 04.04.2013 and orders passed in it, are concerned, Additional Collector, in the impugned order, proceeded on the basis that the lease deed dated 28.01.2011 was executed by a bhumidhar of a bhumidhari land although there was restriction under Section 156 of the Act, for letting out bhumidhari land as such lease deed was void under Section 166 and the land in dispute was vested in State of U.P. under Section 167 of the Act. Additional Collector has failed to take notice of Section 165 of the Act, which due to use of non-obstante clause has an overriding effect. As a consequences of violation of Section 156, the leassee has been conferred with 'bhumidhar with non-transferable right' under Section 165 of the Act as such provisions of Section 166 and 167 of the Act are not attracted. In similar case, this Court in Shital Prasad Vs. Mohd. Sabbir, 1989 RD 127 held that as a consequences of violation of Section 156, the leassee would become 'bhumidhar with non-transferable right' under Section 165 of the Act. Supreme Court in Smt. Jokhni Vs. In similar case, this Court in Shital Prasad Vs. Mohd. Sabbir, 1989 RD 127 held that as a consequences of violation of Section 156, the leassee would become 'bhumidhar with non-transferable right' under Section 165 of the Act. Supreme Court in Smt. Jokhni Vs. Smt. Sahshi Bala, 2008 (104) RD 538 (SC) held that in case, right accrued to transferee due to violation of provisions of the Act, in any other Section, then the provisions of Section 166 and 167 of the Act would not apply. In this case, right accrued to transferee under Section 165 of the Act as such the proceedings initiated under Section 166 and 167 of the Act and the orders passed in it are illegal and without jurisdiction. There is no finding that the land of the petitioner, together with the land held by her family along with disputed land exceeded 12.5 acre. 10. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The order of Board of Revenue U.P. dated 13.02.2014 and Additional Collector dated 17.10.2013 as well as show cause notice dated 04.04.2013 are set aside.