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2017 DIGILAW 2800 (ALL)

Mahendra v. State of Uttar Pradesh

2017-12-01

MANOJ MISRA

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JUDGMENT : Manoj Misra, J. The dispute in the present petition relates to Plot No. 1695 having an area of 4 Bigha, 4 Biswa and 5 Biswansi. In the basic year, the said land was recorded as river. 2. Predecessor-in-interest of the petitioners, namely, Ravi Dutt, filed objection by claiming that in 1359 fasli, his father-Khacheru was recorded as an occupant and, thereafter, the land got submerged in the river and, subsequently, it re-emerged and therefore his name be recorded as per the Government Order dated 11th November, 1976 which provided that where the holding gets submerged in river, the interest of the tenure-holder is not extinguished. Instead, it revives the moment the land emerges from submersion. 3. The Consolidation Officer, by his order dated 29.07.1994, by placing reliance on 1359 fasli entry as also the Government Order dated 11th November, 1976, expunged the entry of river from the record and directed recording of the name of petitioners' father. 4. Against the order of the Consolidation Officer, State filed appeal before the Settlement Officer of Consolidation which was allowed by order dated 28.06.2000 by observing that all rivers and river-bed vest in the State under the provisions of U.P. Zamindari Abolition and Land Reforms Act (in short the Act), therefore, the order passed by the Consolidation Officer is liable to be set aside. 5. Aggrieved by the order of the Settlement Officer of Consolidation, Revision No. 357 was filed by the petitioners before the Deputy Director of Consolidation, Meerut. 6. Before the Deputy Director of Consolidation, it was urged on behalf of the petitioners that since in 1359 fasli, father of the petitioners was recorded, the tenurial right which came to his father on abolition of Zamindari would not get extinguished by subsequent submersion of the land in water and the moment the land re-emerges from water, the tenurial right would revive. 7. The Deputy Director of Consolidation, however, did not accept the submissions made on behalf of the petitioners and dismissed the revision. 8. Learned counsel for the petitioners has submitted that the Consolidation Authorities have not discarded the 1359 fasli entry as fictitious or bogus and there is nothing on record to substantiate as to what was the nature of the land on the date of vesting. 8. Learned counsel for the petitioners has submitted that the Consolidation Authorities have not discarded the 1359 fasli entry as fictitious or bogus and there is nothing on record to substantiate as to what was the nature of the land on the date of vesting. It has been submitted that on the date of vesting the land was neither submerged in water nor was a river-bed therefore, on the basis of 1359 fasli entry, petitioners' father would have secured tenurial rights. It has been urged that those tenurial right could get extinguished only as per the provisions of Sections 189 and 190 of the Act and not by mere submersion of the land in water. It has been submitted that under the aforesaid provisions, tenurial rights do not get extinguish by submersion of land in water because upon such submersion no agricultural operations are possible and the moment the land comes out from water, the rights would revive and therefore the Government, by its notification dated 11th November, 1976, has preserved the rights of tenure-holders facing such a situation. It has been submitted that the Deputy Director of Consolidation as well as the Settlement Officer of Consolidation have not properly examined the matter and have not considered the provisions of sections of 189 and 190 of the Act before deciding the matter. 9. The learned Standing Counsel, who has appeared on behalf of State respondents, submitted that the issue which has been raised can be considered by the Deputy Director of Consolidation after first ascertaining whether in 1359 fasli, the land in dispute was submerged in water or not and whether it was part of the river-bed or not. He also submitted that whether the plot over which the petitioners' father was recorded in 1359F is the same land in respect of which objection has been filed or some other plot also needs to be examined. He submitted that the matter may therefore be remanded back to the Deputy Director of Consolidation for consideration of all the above aspects. 10. I have given thoughtful consideration to the submissions of the learned counsel for the parties. 11. This Court in the case of Muda and others v. State of U.P. and others : 2015 (127) RD 827 had the occasion to examine a similar issue. 10. I have given thoughtful consideration to the submissions of the learned counsel for the parties. 11. This Court in the case of Muda and others v. State of U.P. and others : 2015 (127) RD 827 had the occasion to examine a similar issue. After examining the provisions of the Act, in paragraph 7 of the aforesaid judgment, this Court had considered a Government Order 18.05.1975 wherein it was provided that if the tenure-holder was deprived of his possession due to land being submerged in water, then the tenure-holder will not be deprived of his right and when the land comes out of water, tenure-holder will be entitled to cultivate it, with same right. This Court observed that the purpose of section 4 of U.P. Act No. 1 of 1951 was to abolish Zamindari system and take away Zamindari rights and confer new tenurial rights and those tenurial right could get extinguished as per the provisions of sections 189 and 190 of the Act if the tenure-holder failed to take possession of his tenancy land within the period of limitation prescribed. It was observed that in a case where the land is submerged in water, taking possession as well as cultivation of it is not possible till the land comes out of water and therefore tenurial right cannot get extinguished merely by submersion. Similar appears to be the intent of Govt. Order dated 11th November, 1976, which has been brought on record as Annexure 3 to the petition. 12. Therefore, in a case of this nature, what is relevant to examine is whether on the date of vesting, the land in dispute was a land submerged under water or was part of river-bed. If the land was submerged under water or it was part of river-bed/river on the date of vesting, then the said land would not only vest in the State but would fall in the category of land mentioned in section 132(a) of the Act whereupon no bhumidhari right could accrue. But, if the land, on the date of vesting was not submerged in water or was not part of the river-bed or river and was not land of the categories mentioned in section 132 of the Act, then bhumidhari rights may accrue and those bhumidhari rights could get extinguished only as per the provisions of sections 189 and 190 of the Act and not otherwise. 13. 13. As the aforesaid vital aspect of the matter has not been considered either by the Deputy Director of Consolidation or the Settlement Officer of Consolidation, this Court is of the view that the matter requires to be remanded back to the Deputy Director of Consolidation for taking a fresh decision after according consideration to the following aspects:- (a) whether the land in question was a land submerged under water or part of river-bed or river on the date of vesting? If not, then when did the land got submerged in water?; (b) whether in 1359 fasli, the name of the petitioner's father was duly recorded over the plot in dispute or not? If recorded, then what was the nature of the land shown in the records?; and (c) whether the 1359 fasli entry is a genuine entry or a fictitious entry and whether such entry got reflected in previous years' record? 14. After ascertaining the above aspects, the Deputy Director of Consolidation shall examine whether the petitioners' father had acquired bhumidhari rights over the plot in dispute, consequent to abolition of zamindari; and whether such bhumidhari rights came to be extinguished or not under the provisions of the Act, keeping in mind the provisions of sections 189 and 190 of the Act. 15. After examining all the above aspects, appropriate order shall be passed in accordance with law after giving opportunity of hearing to the parties concerned. 16. Accordingly, the order dated 19.12.2005 passed by the Deputy Director of Consolidation is set aside. Revision No. 357 of 2000 preferred by the petitioners against the order dated 28.06.2000 passed by the Settlement Officer of Consolidation shall be restored to its original number and, thereafter, the Deputy Director of Consolidation shall decide the same, afresh, in the light of the observations made herein above, preferably, within a period of six months from the date of production of certified copy of this order. 17. The petition stands allowed to the extent indicated above.