Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 1192 (ALL)

Shakeel Ahmad v. State Of UP

2024-05-02

ASHUTOSH SRIVASTAVA

body2024
JUDGMENT : (Ashutosh Srivastava, J.) 1. Heard Sri Pankaj Kumar Gupta, learned counsel for the petitioner, Sri Abhishek Shukla, learned Additional Chief Standing Counsel for the State Respondents and Sri Arun Kumar Pandey, learned counsel for the Respondent No. 3. 2. The instant writ petition has been filed questioning the orders dated 16.01.2009 passed by the Respondent No. 2, Sub Divisional Magistrate, Dhampur, Bijnor under Section 176 (A) of the U.P.Z.A. & L.R. Act, 1950 whereby and whereunder the name of the petitioner and his brothers Khalid Ahmad, Naeem Ahmad and mother Akhtari wife of Tasleem Ahmad as Aasami Patta holder (Category-3) over Plot No. 315 area 1.061 hectares lagan 109 contained in Khata No. 244 (1412 to 1417 Fasli) has been struck off and land has been restored as Gram Sabha land category 6 as also the order dated 31.05.2022 whereby and whereunder the land contained in the above mentioned Plot No. 15 has been allotted in favour of the Respondent Nos. 4, 5 & 6 and the allotment has also been approved. 3. It is the case of the petitioner that the Plot No. 576 area 3.13 hectare and Plot No. 624 area 1.52 hectare were leased out in favour of Tasleem Ahmad the father of the petitioner under the resolution of the Gram Sabha dated 25.12.1977 and the allotment was duly approved by the Sub Divisional Magistrate, Dhampur and the father of the petitioner was put in possession over the land allotted as is evident from ZA Form No. 58 dated 25.12.1977 filed as Annexure No. 3 to the writ petition. The dispute in the present writ petition is confined to Plot No. 576 area 3.13 hectares. During the subsistence of the lease the consolidation operations intervened in the village and the plot number allotted changed from 576 to 315. After close of the consolidation operations the name of the father of the petitioner namely Tasleem Ahmad was reflected in CH Form-45 as Bhumidhar of Plot No. 315. A Kishan Bahi bearing No. 420855 was issued by the Tehsildar Nagina, Bijnor on the basis of the entry in CH Form-45. The father of the petitioner Tasleem Ahmad, the original allottee expired and consequent to his death the names of the petitioner, his brothers and mother were recorded over the Plot No. 315 under PA-11. A Kishan Bahi bearing No. 420855 was issued by the Tehsildar Nagina, Bijnor on the basis of the entry in CH Form-45. The father of the petitioner Tasleem Ahmad, the original allottee expired and consequent to his death the names of the petitioner, his brothers and mother were recorded over the Plot No. 315 under PA-11. The petitioner is stated to be in possession over the plot and performing agricultural operations thereon since then. 4. This Court vide order dated 22.04.2024 after recording the submissions made by learned counsel for the petitioner as also the learned Additional Chief Standing Counsel appearing for the State Respondents and also noting that the core question to test the validity of the impugned order would be to ascertain the nature of the land in dispute, whether it was covered by Section 132 of the U.P.Z.A. & L.R. Act, as stated in the impugned order, at the time of allotment of lease in question or otherwise, as the records filed along with the writ petition did not clarify the said position, had required the learned Additional Chief Standing Counsel to obtain specific instructions in this regard and appraise the Court as to the exact nature of the land allotted to the father of the petitioner way back in the year 1977. 5. Pursuant to the order aforesaid, instructions have been received which are taken on record. 6. Sri Abhishek Shukla, learned Additional Chief Standing Counsel on the basis of the instructions submits that the plot in question i.e. Plot No. 315 area 1.061 hectare was recorded as 'Banjar' Category-5' in 1359 F and was Gram Sabha Property. An Asami Patta (Category-3) was executed in favour of Sri Tasleem Ahmad late father of the petitioner Sakeel Ahmad. At the relevant time the land was recorded as 'Banjar' Category-5' and since period of lease had not expired the name of Tasleem Ahmad was recorded over the land. Tasleem Ahmad expired on 04.10.2006 and the name of the petitioner and other heirs of Tasleem Ahmad came to be recorded over the land on the basis of PA-11 entry. 7. Learned counsel for the petitioner submits that the Respondent No. 2, the Sub Divisional Magistrate, Dhampur District Bijnor passed the impugned order dated 16.01.2009 under Section 176(A) of the U.P.Z.A. & L.R. Act behind the back of the petitioner relying upon an ex-parte report of the Tehsildar concerned. 7. Learned counsel for the petitioner submits that the Respondent No. 2, the Sub Divisional Magistrate, Dhampur District Bijnor passed the impugned order dated 16.01.2009 under Section 176(A) of the U.P.Z.A. & L.R. Act behind the back of the petitioner relying upon an ex-parte report of the Tehsildar concerned. Thereafter, the Sub Divisional Magistrate has proceeded to allot the land to the Respondent Nos. 4 to 6. 8. Learned counsel for the petitioner has argued that the impugned order proceeds on the erroneous assumption that the land belonged to reserved category land covered by Section 132 of the U.P.Z.A. & L.R. Act and was Gaon Sabha property whereas admittedly the land is 'navin-parti' which had been leased out to the father of the petitioner Tasleem Ahmad, who was subsequently declared Bhumidhar. The land as such was Bhumidhari land and could not be allotted to the Respondent Nos. 4 to 6. It is also argued that the impugned order is entirely ex-parte and has been passed on total non application of mind, barred by Section 49 of the U.P.C.H. Act. It is also argued that the petitioner is entitled to the benefit of Section 76(1) (dd) of the U.P. Revenue Code, 2006 which has not been considered by the authorities. Reliance has been placed upto the decision of a Coordinate Bench of this Court in the case of Gangadeen Vs. State of U.P. and others reported in 2018(138) RD 68 and Writ-B No. 24167 of 2017 (Karamjeet Singh and 2 others Vs. Board of Revenue, U.P., Lucknow and 2 others) (Neutral Citation No. 2024 AHC 48683) to emphasize the point that as per Clause (dd) of sub Section (1) of the Section 76, every person who was an Asami in possession of land not covered by Section 77 of the Code, immediately before the commencement of the Code and has been recorded as such in Class-3 of the Annual Register (Khatauni) of 1407 Fasli shall become Bhumidhar with non-transferable rights and shall have all the rights and be subject to all the liabilities conferred or imposed upon such Bhumidhar by or under the Code. It is argued that the land in question is not covered by Section 77 of the Code. It is argued that the land in question is not covered by Section 77 of the Code. The name of the father of the petitioner was recorded in the Khatauni till 1412-1417 Fasli and after his death the name of the petitioner stood recorded under PA-11 as heir of Tasleem Ahmad and as such the petitioner is entitled to the benefit of Clause (dd) of Sub Section (1) of Section 76 of the Code. 9. Reliance is also placed upon a decision of this court in the case of Ram Swaroop Vs. State of U.P. and others, decided on 15.04.2019, Neutral Citation No. 2019:AHC 63918 to buttress the proposition that cancellation of the lease could be done only after serving notice which admittedly was not done and as such the impugned order is unsustainable. Based upon the above submissions it is prayed that the impugned orders be set aside and the writ petition allowed. 10. Sri Abhishek Shukla, learned Additional Chief Standing Counsel for the State Respondents in opposition to the writ petition at the very outset submits that the impugned order is revisable and the petitioner has an effective alternative remedy and the writ petition is not liable to be entertained. 11. Sri Shukla further submits that the Commissioner and Secretary Board of Revenue, U.P., Anubhag-5, Lucknow issued an order dated 01.08.2006 to all District Magistrates, U.P. to identify all Aasami Category-3 and Category-4 as also illegal occupants over Government Land and take measures against such persons whose leases have expired and are in illegal occupation of the land. Since the tenure of the lease in favour of the father of the petitioner had already expired, the petitioner cannot continue in possession over the land. The original allottee i.e. Tasleem Ahmad has already expired. The land is Gaon Sabha Land and the petitioner is not entitled to the benefit of 76(1) (dd) of the Code. The Aasami leases granted under Section 195 are not heritable and no right can be said to flow to the petitioner after the death of his father the original allottee after the expiry of the period of 5 years of the Aasami lease as per Rule 176-A(2). After expiry of the lease, the land shall stand automatically vested in the Gaon Sabha. After expiry of the lease, the land shall stand automatically vested in the Gaon Sabha. It is also submitted that the plea of the benefit of Section 76(1) (dd) has been taken for the very first time before this Court during the course of arguments and there is no ground/pleadings made in this regard in the writ petition. No such ground was ever raised before the Authority below. It is, accordingly, prayed that the writ petition deserved to be dismissed on merits as also on the ground of alternative remedy. 12. I have heard learned counsel for the petitioner as also the learned Additional Chief Standing Counsel for the State Respondents. I have also perused the case laws cited by the learned counsel for the petitioner. The legislative intent of Section 76(1)(dd) of the U.P. Revenue Code, 2006 is that even Aasami in possession of the land is entitled to be recorded as Bhumidhar, if the land is not covered under Section 77 of the U.P. Revenue Code, 2006. Admittedly, the Plot No. 315 area 1.061 hectare in 1359 Fasli is recorded as 'Banjar Category-5'. Banjar Land may belong to the Gaon Sabha but is not covered under 132 of the U.P.Z.A. & L.R. Act or 77 of the Code. In the opinion of the Court, the name of the petitioner could not have been recorded over the land on the basis of inheritance after expiry of lease period. The petitioner is thus not entitled to the benefit of Section 76(1)(dd) more so on the ground that no such plea had been taken before the Revenue Authorities and has been argued by learned counsel for the petitioner for the first time without there being and pleading or foundation in that regard in the writ petition. 13. Admittedly, Tasleem Ahmad the original allottee had been granted Aasami lease of the land in question under Resolution of the Land Management Committee dated 25.12.1977. The period of such Aasami lease is only 5 years. The lease in favour of the Allottee Tasleem Ahmad could not travel beyond 24.12.1982. There is no material on record to establish the fact tht the period of lease was extended nor any such plea has been taken before the Authorities below or in the writ petition itself. 14. The period of such Aasami lease is only 5 years. The lease in favour of the Allottee Tasleem Ahmad could not travel beyond 24.12.1982. There is no material on record to establish the fact tht the period of lease was extended nor any such plea has been taken before the Authorities below or in the writ petition itself. 14. The proviso to sub Rule (1) of the Rule 176(A) of the U. P. Zamindari Abolition and Land Reforms Rule, 1952 provides that no lease shall be made to an Aasami for a period exceeding 5 years. The justification for grant of Aasami leases for a period of 5 years was considered in the case of Hari Ram Vs. Collector reported in 2004(97) RD 360, wherein it was laid down that the object of provisions contained in Chapter VII pertaining to the grant of lease by the Land Management Committee is a provision enacted to give effect to the Constitutional mandate as contained in Article 39(b) of the Constitution of India. The object contained in Article 39(b) is distribution of material resources of the community to best sub-serve the common hood. The restriction of 5 years of an Aasami lease is only for the purpose that lease be again granted after 5 years to best sub-serve the common hood. The sub Rule (2) of the Rule 176-A empowers the Assistant Collector to determine the lease even before the expiry of the lease. 15. A Coordinate Bench of this Court in the case of Parabdin Vs. Board of Revenue, U.P at Lucknow and 4 others (Writ-B No.38209 of 2016) decided on 02.09.2016 while considering a similar situation as the present case observed as under in Para 8 of the judgment. “8. A perusal of the patta as well as revenue record shows that the petitioner was not granted sirdari patta rather he was granted asami patta from the very beginning. Under the provisions of Rule 176 A of UP Z.A. & L.R. Act, 1952 patta for asami right could be granted for maximum period of five years. Admittedly, the patta was granted to the petitioner on 7.2.1976. Thus the period of patta has already come to an end and due efflux of time on the date of impugned order dated 30.12.2009. Admittedly, the patta was granted to the petitioner on 7.2.1976. Thus the period of patta has already come to an end and due efflux of time on the date of impugned order dated 30.12.2009. The petitioner left with no substantive right over the land in dispute and his name was rightly deleted from the revenue record. In any case in the absence of any right over the land in dispute this Court in exercise of writ jurisdiction cannot direct for restoring the name of the petitioner over the land in dispute.” 16. Likewise, another Coordinate Bench of this Court in the case of Ali Jaan and 9 others Vs. Additional Collector (Judicial) and 3 others (Writ-B No.5596 of 2018) decided on 19.11.2018 observed as under:- “It is settled law that an assami patta can be granted for a maximum duration of five years. Therefore, the period of allotment automatically came to an end in the year 1970. Under the circumstances, there was absolutely no justification for the Consolidation Officer for granting bhumidhari rights to the petitioners on the basis of an allotment, which had come to an end, at least 20 years before the order was passed by him. Besides, on a pointed query by the Court, as to the provision of law whereunder an asami can become a bhumidhari with transferable rights, counsel for the petitioner has relied upon Section 131 of the U.P. Zamindari Abolition and Land Reforms Act. In my considered opinion, this submission is without merit because Section 131 of the U.P. Zamindari Abolition and Land Reforms Act specifies as to who is a bhumidhari with non transferable rights. Admittedly, the lease granted to the petitioners or their predecessor-in-interest in the year 1965 was of asami rights as defined in Section 133 of the Act. There exists no provision of law whereunder an asami can become either a bhumidhari with transferable or non transferable rights of the land allotted to him. Moreover, the proviso to Rule 176-A of the U.P. Zamindari Abolition and Land Reforms Rules states that no lease shall be made to an asami for a period exceeding five years.” 17. Yet again another Coordinate Bench of this Court in case of Vijay Kumari Vs. Moreover, the proviso to Rule 176-A of the U.P. Zamindari Abolition and Land Reforms Rules states that no lease shall be made to an asami for a period exceeding five years.” 17. Yet again another Coordinate Bench of this Court in case of Vijay Kumari Vs. Consolidation Officer, Sawayajpur, Hardoi and 2 others (Consolidation No. 6946 of 2019) decided on 13.03.2019 along with 34 others, writ petitions observed as under:- “The only Patta which is permissible to be granted by the Land Management Committee in a land referable to Section 132 is the Asami Patta in terms of the provision contained in Section 133(c). However, such Asami Patta which is permissible to be granted over a land referable to Section 132 cannot be granted in perpetuty; rather term of Asami Patta is restricted to a period of 5 years in terms of the provision contained in Rule 176-A of the U.P. Z.A. & L.R. Rules. Admittedly, the nature of pattas on which the petitioners place reliance in this case are not Asami Patta. Even if, it is presumed that pattas said to have been granted in favour of the petitioners on 31.10.1992 were Asami Pattas, their term itself has come to an end in terms of the provisions contained in Rule 176-A of the U.P. Z.A. & L.R. Rules.” 18. Learned counsel for the petitioner has laid much emphasis on the fact that during the consolidation operations that had intervened during the subsistence of the lease in favour of the father of the petitioner, the name of the father came to be recorded as Bhumidhar with transferable rights and the same was also reflected in CH Form-45. Once the Bhumidhari Rights had been acquired the proceedings under Section 176-A of the U.P.Z.A. & L.R. Act, 1950 was completely unwarranted. The learned counsel for the petitioner has failed to satisfy the query of the Court as to how the Bhumidhari rights stood accrued to the father of the petitioner who had been granted Aasami Patta. In the opinion of the Court no benefit can accrue to the petitioner on the fact that the name of the father of the petitioner was recorded as Bhumidhar in CH Form-45 in view of the Full Bench decision of this Court reported in AIR 1977 Alld. In the opinion of the Court no benefit can accrue to the petitioner on the fact that the name of the father of the petitioner was recorded as Bhumidhar in CH Form-45 in view of the Full Bench decision of this Court reported in AIR 1977 Alld. 360 wherein it has been held that Consolidation Authorities are not vested with any power, authority or jurisdiction to adjudicate upon the validity of the patta except in certain special circumstances which admittedly do not exist in the present case nor has been pleaded or any foundation laid in the writ petition. 19. In the instructions brought on record by the learned counsel representing the State Respondents it has been clearly mentioned that after passing of the impugned order dated 16.01.2009 and restoration of the land as Gram Samaj and the same has been allotted to the Respondent Nos. 4, 5 & 6 vide order dated 31.05.2022 and the allottees i.e. the Respondent Nos. 4, 5 & 6 have already been put in possession thereof and their names stand recorded over the Plot No. 315 as Bhumidhars with non transferable rights. Besides the petitioner is not landless and Plot No. 316 area 0.877 hectare stand recorded in the name of his mother and other co-sharers. 20. In view of the above, the Court is not inclined to grant any indulgence to the petitioner. The writ petition is devoid of merits and is, accordingly, dismissed. However, the dismissal of the writ petition shall not come in the way of the petitioner to establish his rights over the plot in dispute by taking recourse to filing suit for declaration of his rights over the land in appropriate proceedings. 21. No order as to costs.