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2016 DIGILAW 3777 (ALL)

GYAN MATI v. STATE OF U. P.

2016-11-23

A.P.SAHI, DEVENDRA KUMAR UPADHYAYA

body2016
JUDGMENT By the Court.—Heard learned counsel for the petitioners, Shri Atma Ram Verma and Shri D.K. Pathak, learned Additional Chief Standing Counsel appearing for the State-respondents. 2. By means of this writ petition, the petitioners have prayed that respondents be directed to allow them to exercise their fishing rights over a pond at khasra plot No. 181, having an area of 1.202 hectare, situate in village-Jwala Purva, Pargana and Tehsil-Utraula, district-Balrampur. 3. The husband of petitioner No. 1 and father of petitioner Nos. 2 and 3, late Chhedi Ram was admitted to the aforesaid pond by the Gaon Sabha as a lessee on 27.10.2009 conferring on him fishing rights. The lease executed by the Gaon Sabha in favour of the predecessor in interest of the petitioners was with effect from 27.10.2009 till 26.10.2019. However, before expiry of the term of the said lease, late Chhedi Ram, predecessor in interest of the petitioners, died on 30.6.2016. Admittedly, the petitioners are legal heirs of lessee, late Chhedi Ram. 4. The question which calls for consideration in this case is as to whether the petitioners will have inheritable rights over the lease executed by the Gaon Sabha in favour of late Chhedi Ram and as to whether the fishing rights are to be devolved in respect of the pond in question on the petitioners. 5. U.P. Revenue Code, 2006 (hereinafter referred to as ‘Code, 2006') has come into force with effect from 11.2.2016. Section 108 of the Code, 2006 provides for general order of succession to male bhumidhar, asami or Government lessee, which is extracted herein below: “108. 5. U.P. Revenue Code, 2006 (hereinafter referred to as ‘Code, 2006') has come into force with effect from 11.2.2016. Section 108 of the Code, 2006 provides for general order of succession to male bhumidhar, asami or Government lessee, which is extracted herein below: “108. General order of succession to male bhumidhar, asami or Government lessee.—(1) Subject to the provisions of Section 107, where a bhumidhar, asami or Government lessee, being a male dies, his interest in his holding shall devolve upon his heirs being the relatives specified in sub-section (2) in accordance with the following principles, namely : (i) the heirs specified in any one clause of sub-section (2) shall take simultaneously in equal shares; (ii) the heirs specified in any preceding clause of sub-section (2) shall take to the exclusion of all heirs specified in succeeding clauses, that is to say, those in clause (a) shall be preferred to those in clause (b), those in clause (b) shall be preferred to those in clause (c) and so on, in succession; (iii) if there are more widows than one, of the bhumidhar, asami or Government lessee, or of any predeceased male lineal descendant, who would have been an heir, if alive, all such widows together shall take one share; (iv) the widow or widowed mother or the father’s widowed mother or the widow of any predeceased male lineal descendant who would have been an heir, if alive, shall inherit only if she has not remarried. (2) The following relatives of the male bhumidhar, asami or Government lessee are heirs, subject to the provisions of sub-section (1), namely : (a) widow, unmarried daughter and the male lineal descendants in the male line of descent per stirpes: Provided that the widow and the son of a predeceased son how low-soever shall inherit per stirps the share which would have devolved upon the predeceased son had he been alive; (b) mother and father; (c) (married daughter); (d) brother and unmarried sister being respectively the son and the daughter of the same father as the deceased, and son of a predeceased brother, the predeceased brother having been the son of the same father as the deceased; (e) son’s daughter; (f) father’s mother and father’s father; (g) daughter’s son; (h) married sister; (i) half sister, being the daughter of the same father as the deceased; (j) sister’s son; (k) half sister’s son, the sister having been the daughter of the same father as the deceased; (l) brother’s son’s son; (m) father’s father’s son. (n) father’s father’s son’s son (o) mother’s mother’s son.” 6. According to the aforesaid provisions, the successors as enumerated in Section 108 itself, are to inherit the rights vested in a male bhumidhar, asami or Government lessee in respect of the land holding of the deceased male tenure holder. Section 108, thus, encompasses in its folds in three categories of persons, whose rights in the land holdings are to devolve upon their heirs in terms of the provisions contained therein and these categories are; (i) bhumidhar, (ii) asami and (iii) Government lessee. Asami has been defined in Section 78 of the Code, 2006, according to which, every person belonging to classes given therein shall be called an asami and shall have all the rights and be subject to all the liabilities conferred or imposed upon such asami by or under the Code, 2006. 7. One of the classes of persons, who is described as asami in Section 78 of the Code, 2006, is a person, who was asami immediately before the date of commencement of Code, 2006. Section 78 (a) of Code, 2006 is extracted herein below : “78. (a) subject to the provisions of clause (dd) of sub-section (1) of Section 76 of this Code, every person who was an asami immediately before the date of commencement of this Code.” 8. Section 78 (a) of Code, 2006 is extracted herein below : “78. (a) subject to the provisions of clause (dd) of sub-section (1) of Section 76 of this Code, every person who was an asami immediately before the date of commencement of this Code.” 8. The question in this case, thus, is as to whether late Chhedi Ram can be termed to be asami and if it is held that he is an asami, his rights will devolve upon the petitioners in terms of the provisions contained in Section 108 of the Code, 2006. 9. The lease in respect of fishing right was settled by the Gaon Sabha concerned in favour of late Chhedi Ram on 27.10.2009 i.e. at the time when the Code, 2006 was not in force and the matter relating to fishing rights and categories of tenure holders etc. were governed by the provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ‘U.P.Z.A.& L.R. Act). Under the U.P.Z.A.& L.R. Act, asami has been described as a person belonging to classes mentioned therein and such asami was vested with all the rights and was subject to all the liabilities conferred or imposed upon asami by or under the said enactment. The class of person defined as asami under Section 133 of the U.P.Z.A.& L.R. Act included every person, who on or after the date of vesting, was admitted by the land management committee or the person entitled as a lessee of land described in Section 132 of the U.P.Z.A.& L.R. Act. Section 133(c) of the U.P.Z.A.& L.R. Act is quoted hereinbelow : “133 (c) every person who, on or after the date of vesting, is admitted by the [Land Management Committee] or the person entitled as a lessee of land described in Section 132”. 10. Thus, any person admitted by the Land Management Committee as a lessee over the land described in Section 132 of U.P.Z.A & L.R. Act was an asami. Section 132 describes the land in which bhumidhari rights could not accrue and includes pasture lands or lands covered by water and used for the purposes of growing singhara or other produce or land in the bed of a river and used for casual or occasional cultivation. Thus, a pond having potential of fishing activities is covered by Section 132 of U.P.Z.A.& L.R. Act under the Management of Bhumi Prabandhak Samiti. Thus, a pond having potential of fishing activities is covered by Section 132 of U.P.Z.A.& L.R. Act under the Management of Bhumi Prabandhak Samiti. 11. In the instant case, the fishing rights were conferred on late Chhedi Ram on 27.10.2009 and he was admitted as lessee and hence, he would be an asami within the meaning of Section 133 of U.P.Z.A.& L.R. Act. A conjoint reading of Section 133 of U.P.Z.A. & L.R. Act with Sections 78 and 108 of the Code, 2006, makes it clear and leaves no doubt that such asamis rights in respect of lease granted in favour of the persons before enforcement of Code, 2006 will be inheritable, in view of provision contained in Section 108 of the Code, 2006. 12. In view of the aforesaid discussions, the writ petition is allowed with the direction to the Sub Divisional Officer concerned to consider the claim of the petitioners for granting them inheritable rights in respect of the lease executed in favour of late Chhedi Ram pertaining to khasra plot No. 181, having an area of 1.202 hectare, situate at Jwala Purwa, Pargana and Tehsil-Utraula, district-Balrampur and pass an appropriate order expeditiously, say within a period of six weeks from the date of production of certified copy of this order. The Sub Divisional Officer shall also conclude all necessary formalities for conferring the fishing rights on the petitioners after he takes a decision in terms of this judgment for remainder period of lease till 26.10.2019. 13. There will be no order as to costs.