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2016 DIGILAW 3371 (ALL)

Chandan Prasad v. State of U. P.

2016-10-03

ANJANI KUMAR MISHRA

body2016
JUDGMENT Anjani Kumar Mishra,J. Heard learned counsel for the petitioners and Sri Anuj Kumar, who has accepted notice on behalf of the Gaon Sabha, respondent no.6, as also the learned Standing Counsel for the State-respondents. 2. Although, separate orders of the same date are impugned in the two writ petitions but since the facts and the submissions are identical, as are the issues involved therein, both the petitions are being decided by a common order. 3. In both writ petitions, an order dated 31.08.2004, passed by the Sub Divisional Magistrate, expunging the name of the petitioners, from the land in question, has been passed on the ground that the fathers of the petitioners, were allotted an asami lease in the year 1975, period whereof has expired long back, and therefore, the names should not be permitted to continue in the revenue records. 4. Against this order, revisions filed by the petitioners, were dismissed on 21.01.2016. The petitioners, thereafter filed review applications, which have been dismissed, on 06.05.2016. All of three orders, namely, the order dated 31.08.2004 passed by the respondent no.5 and the orders dated 21.01.2016 and 06.05.2016 passed by the respondent no.2, are impugned in both these writ petitions. 5. The petitioners have also challenged the order dated 23.01.2015 passed by the respondent no.4, the Additional Collector, Hamirpur, rejecting the applications filed by them, under Section 198(4) of the U.P. Zamindari Abolition and land Reforms Act for cancelling the allotment made in favour of the respondent nos.5 to 7 in writ petition no.47768 of 2016 and the respondent nos.7 to 13 in writ petition no.47766 of 2016. 6. The facts relevant in these writ petitions shorn of unnecessary details are that the father of the petitioners, in both the writ petitions were granted an asami patta, in the year 1975. The term of an asami lease being five years, the Sub Divisional Magistrate, on a report furnished by the Tehsildar, ordered their names to be expunged, vide order dated 31.08.2004, on the ground that the period of allotment had long since expired. These orders have been affirmed, upon dismissal of the revision filed by the petitioners, vide order dated 21.01.2016. The review applications have also been dismissed on 06.05.2016. 7. It appears that upon the names of the petitioners having been expunged, the land in question was allotted to the contesting respondents in these writ petitions. 8. These orders have been affirmed, upon dismissal of the revision filed by the petitioners, vide order dated 21.01.2016. The review applications have also been dismissed on 06.05.2016. 7. It appears that upon the names of the petitioners having been expunged, the land in question was allotted to the contesting respondents in these writ petitions. 8. The petitioners initiated proceedings for cancellation of the allotments, made in favour of the contesting respondents, which application has been dismissed by the Additional Collector, vide order dated 23.01.2015. 9. It would be relevant to note that in writ petition No.47766 of 2016, the dispute pertains to plot no.135-kha, area 2 acres, while in writ petition no.47768 of 2016 it pertains to plot no.135-Ang, area 2 acres, situated in village Jalala, Tehsil & District Hamirpur. 10. The contention of the learned counsel for the petitioner is that the order passed by the Sub Divisional Magistrate, on 31.08.2004 was without jurisdiction. It is also alleged that this order was exparte, and therefore, liable to be set aside on this ground alone. 11. It has also been submitted that the provisions of Section 198(5) (6) of the U.P. Zamindari Abolition and land Reforms Act have not been followed. It is also alleged that the petitioners became bhumidhars with transferable rights, in view of Section 131-B of the Act. 12. It is lastly, contended that the proceedings were barred by limitation, in view of the provisions contained in sub-sections 5 and 6 of Section 198, as the proceedings for expunging the name of the petitioners had been drawn, after the expiry of the period of five years from the date of the allotment. 13. The counsel appearing on behalf of the respondents have supported the impugned orders. 14. I have considered the submissions made by the parties and have perused the record. 15. At the very outset, a pointed query was made by the learned counsel for the petitioners, as to the nature of the allotment made in favour of their fathers, and whether, their fathers were asamis. 16. Learned counsel for the petitioners denied that the lease was an asami lease. He also submitted that, even if, there is no foundation of this statement in the writ petition, the claim of the petitioners is still required to be considered, on its merits. 17. 16. Learned counsel for the petitioners denied that the lease was an asami lease. He also submitted that, even if, there is no foundation of this statement in the writ petition, the claim of the petitioners is still required to be considered, on its merits. 17. Although, counsel for the petitioners has denied that the lease granted in favour of their fathers was an asami lease, the same is an incorrect submission. In paragraph 5 of the writ petition, it has been categorically stated that the lease in favour of the petitioners' fathers, was an asami patta granted, under Rule 176 of the U.P. Zamindari Abolition and Land Reforms Rule. 18. Besides, from a perusal of the order passed by the Sub Divisional Magistrate, it is clear that it has been passed in exercise of powers conferred by Rule 176-A of the U.P. Zamindari Abolition and Land Reforms Rules which provides that an asami lease shall not be for a period exceeding five years and that it is lawful, for the Assistant Collector (Incharge) of the sub division, namely, the Sub Divisional Officer to determine, at any time, a lease in favour of an asami. 19. It is this power, which has been exercised and there is no illegality in such exercise of power conferred upon the Sub Divisional Magistrate. The only point in this regard, which may be of consequence is that the order is alleged to have been passed exparte. 20. However, in the absence of any material to show that the asami lease granted in the year 1975 which could be only for a period of five years had been extended, the contention that the order was exparte, looses its significant, also especially, in view of the fact that a consequential revision and review applications filed by the petitioners have been decided after hearing them. The initial defect, if any, in the order of the Sub Divisional Magistrate,therefore, stands cured. 21. The questions of limitation etc. and the reliance upon the various sub-sections of Section 198 of the Act is without any basis. For the same reason, the petitioner cannot derive any benefit from the judgment relying upon by him, which is, dated 16.12.2011 in writ petition No.1364 of 2007, Jiya Ram & 16 others Vs. State of U.P. and others, which deals with the privations of Section 198 of the Act. 22. For the same reason, the petitioner cannot derive any benefit from the judgment relying upon by him, which is, dated 16.12.2011 in writ petition No.1364 of 2007, Jiya Ram & 16 others Vs. State of U.P. and others, which deals with the privations of Section 198 of the Act. 22. The procedure prescribed by Section 198 of the Act pertains to a lease granted either, under Section 195 of the Act, whereby a lessee becomes a bhumidhari with non transferable rights or with regard to a lease granted. Section 197 of the Act, whereby the land governed by the provisions of Section 132 of the Act is leased out and the lessee is an asami thereof. 23. There is no material on record to indicate that the fathers of the petitioners were granted asami rights over land governed by the provisions of Section 132 of the Act.? Moreover, it has also been found, herein above, that the lease granted was in fact an asami lease. 24. Under the circumstances, therefore, Section 198 of the U.P. Zamindari Abolition and Land Reforms Act is not applicable in so far as the lease granted in favour of the petitioners predecessor-in-interest are concerned and therefore, all the submissions, made in this regard, have no legs, to stand. 25. The only other contention that survives for consideration is the contention that the lessees become bhuimidhar with transferable rights, upon the expiry of 10 years from the date of allotment, in accordance with Section 131-B of the Act. Even this submission is completely misconceived. It is only a bhumidhar with non transferable rights which can become a bhumidhar with transferable rights upon the expiry of 10 years from the date of the allotment. This section does not apply to an asami, as was the status of the petitioners' predecessor-in-interest. 26. In view of the foregoing discussion, the orders expunging the name of the petitioners from the land in question in exercise of powers, conferred by Rule 176 of the U.P. Zamindari Abolition and Land Reforms Rules, as also the revisional order, affirming the same and the order dismissing the review application, filed by the petitioners, call for no interference and must necessarily be affirmed. 27. 27. In so far as, challenge to the orders passed by the Additional Collector rejecting the application of the petitioners, under Section 198(4) of the Act, for cancelling the allotment in favour of the respondents, is concerned, the same also suffers from no illegality. The order categorically states that the land, which is in unauthorized occupation of the petitioners will be deemed to be vacant land for the purposes of the allotment, under Section 198 of the Act. This view is in consonance with the decisions of this Court and therefore, the same calls for no interference. 28. For the reasons given above, these writ petitions are found to be totally devoid of any substance. They are hereby dismissed.