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2024 DIGILAW 1343 (ALL)

Murtja v. State Of Uttar Pradesh

2024-05-17

ASHUTOSH SRIVASTAVA

body2024
JUDGMENT : (Ashutosh Srivastava, J.) : 1. Heard Sri Pradeep Kumar Rai, learned counsel for the petitioner, Sri Abhishek Shukla, learned Additional Chief Standing Counsel for the State Respondents and Sri Kaushal Kishore Mani, learned counsel, who has appeared on behalf of the Respondent No. 4, Land Management Committee. 2. The writ petition has been filed questioning the legality, propriety and correctness of the order dated 06.12.2023 passed by the Additional Commissioner (Administration-II) Saharanpur Division, Saharanpur in Case No. 629 of 2023, under Section 333 of the U.P.Z.A. & L.R. Act, 1950 as also the order dated 12.12.2023 passed by the Additional Collector (Finance & Revenue) Saharanpur in Case No. 13 of 2012-13 under Section 115-P of the U.P.Z.A. & L.R. Act, 1950. 3. By the order dated 12.12.2023, the Additional Collector (F & R) Saharanpur after registering a case against the petitioner under Section 115-P of the U.P.Z.A. & L.R. Act has expunged the name of the petitioner and directed the land in dispute to be recorded as 'Johad' at the same time has cancelled the proposal of the Land Management Committee dated 24.02.1976 and approval dated 06.03.1976. The Revision preferred by the petitioner against the said order has also been dismissed by the order dated 06.12.2023. 4. Learned counsel for the petitioner submits that the dispute in the present writ petition relates to Plot No. 110M area 0.1740 which was recorded in the name of one Mohd. Ali son of Faimuddin, as Bhumidhar with Transferable Rights in Khatauni 1419F to 1424F since 1403F. After the death of the said Mohd. Ali, his sons Zulifikar and Mustafa and widow Shakila were recorded under PA-11 by the order of the Revenue Inspector dated 29.04.2008 and their names were also reflected in the Khatauni 1419F to 1424F. Mst. Shakila widow of Mohd. Ali, Zulfikar and Mustafa executed a sale deed dated 18.01.2008 in favour of Mustafa and Murtaza sons of Abdul Latif of the Plot No. 110/1M area 0.174 hectare and the names of Mustafa and Murtaza came to be recorded in the Khatauni 1419F to 1424F by order of the Tehsildar Nakur, Saharanpur dated 29.02.2009. 5. Learned counsel for the petitioner contends that the Deputy Collector, Saharanur submitted a report dated 30.06.2012 to the effect that the Plot No. 110 area 14 Biswa was recorded as 'Zohad' (Pond). 5. Learned counsel for the petitioner contends that the Deputy Collector, Saharanur submitted a report dated 30.06.2012 to the effect that the Plot No. 110 area 14 Biswa was recorded as 'Zohad' (Pond). The Land Management Committee under its resolution dated 24.02.1976 approved on 06.03.1976 allotted Plot No. 110 area 1 bigha in favour of Mohd. Ali under an agricultural lease. After the death of Mohd. Ali, the land stood recorded in the names of his heirs. The heirs transferred the land in favour of Mustafa and Murtaza, sons of Abdul Latif. In the allotted plot, an area of 0.031 hectare stands recorded as road and remaining area 0.174 hectare is recorded as 'Johad' (Pond) and the allotment in favour of Mohd. Ali was irregular as the land is covered by Section 132 of the U.P.Z.A. & L.R. Act. On the strength of the report dated 30.06.2012, proceeding under Section 115-P of the U.P.Z.A. & L.R. Act was initiated which culminated in order dated 12.12.2013. The Appeal preferred by Mustafa against the order dated 12.12.2013 was dismissed and the Revision under Section 333 was also dismissed. The writ petition filed by Mustafa was also dismissed. Thereafter the petitioner preferred a Revision against the order dated 12.12.2013, which has been dismissed by the order dated 06.12.2023. 6. Learned counsel for the petitioner has assailed the orders impugned primarily on the ground that the Plot No. 110M area 1 Bigha was allotted to Mohd. Ali son of Faimuddin under the proposal of the Land Management Committee dated 12.12.1976 which allotment was also approved on 06.03.1976. The name of the Vendor of the petitioner was recorded over the land as Class-2 since 1395F. Out of total area 1 Bigha, 14 Biswa of Plot No. 110 was recorded as 'Johad' (Pond). Mohd. Ali became Bhumidhar of the plot of area 1 Bigha under Section 131-B of the U.P.Z.A. & L.R. Act, 1950. The petitioner purchased the plot after inspection of the records on 18.01.2008. The petitioner was also recorded over the plot as Bhumidhar. The proceedings under Section 115-P of the U.P.Z.A. & L.R. Act, 1950 are ex-facie illegal and the impugned orders are liable to be set aside and the writ petition deserves to be allowed. The petitioner purchased the plot after inspection of the records on 18.01.2008. The petitioner was also recorded over the plot as Bhumidhar. The proceedings under Section 115-P of the U.P.Z.A. & L.R. Act, 1950 are ex-facie illegal and the impugned orders are liable to be set aside and the writ petition deserves to be allowed. The sale deed in favour of the petitioner is still valid and the entry in the revenue records could be corrected only after the sale deed as set aside. Reliance is placed upon the decision of Coordinate Bench of this court in the case of Jitendra Kumar Vs. State of Uttar Pradesh and others, reported in 2018(8) ADJ 503 and in the case of Vakila Vs. State of Uttar Pradesh & others, reported in 2008(3) ADJ 444 . 7. Sri Abhishek Shukla, learned Additional Chief Standing Counsel appearing for the State Respondents submits that the Additional Collector (F & R) Saharanpur after considering all aspects has recorded finding of fact that the land allotted to the Vendor of the petitioner was 'Zohad' (Pond) Category 6(1) and covered by Section 132 of the U.P.Z.A. & L.R. Act, 1950 and over which no Bhumidhari Rights could accrue. The said finding of fact has also been upheld in Revision and in such view of the matter no interference is warranted by this Court in exercise of its extra ordinary powers under Article 226 of the Constitution of India and the writ petition is liable to be dismissed at the threshold. 8. I have heard the learned counsel for the petitioner, learned Additional Chief Standing Counsel appearing for the State Respondents and have perused the record as also the case laws cited by learned counsel for the petitioner at the Bar. 9. Admittedly, the Plot No. 110 is Category 6(1) land recorded as 'Zohad' (Pond) in the Revenue Records. Such category of land is covered under Section 132 of the U.P.Z.A. & L.R. Act, 1950 and no Bhumidhari right can be said to accrue in respect of such land. 10. The Khatauni extracts pertaining to the Fasli year 1389 to 1394, 1395 to 1400 filed as Annexure No. 5 to the writ petition depicts that the original allottee Mohd. Ali son of Faimuddin was recorded as Class/Category-2 Bhumidhar with non-transferable rights over the land of Plot No. 110/1 as lease holder. 10. The Khatauni extracts pertaining to the Fasli year 1389 to 1394, 1395 to 1400 filed as Annexure No. 5 to the writ petition depicts that the original allottee Mohd. Ali son of Faimuddin was recorded as Class/Category-2 Bhumidhar with non-transferable rights over the land of Plot No. 110/1 as lease holder. Land, which is covered under Section 132 of the Act, no Bhumidhari Right can be said to accrue as provided in the Section itself. However, certain land which are covered under Section 132 of the Act can be allotted as Aasami by the Land Management Committee but by virtue of Section 197 sub-Section (2) of the Act, the right to admit any person as Aasami of any tank, pond or other land covered by water shall be regulated by the Rules made under the Act. The allotment of tank, pond or other land are governed by Government Orders issued under Section 126 of the Act. The case at hand is not a case where the allotment has been done under Section 197(2) of the U.P.Z.A. & L.R. Act, as allotment is as Asankramani Bhumidhar and not as Aasami. In the present case, the Land Management Committee has exercised power under Section 195 of the Act in allotting the land to the Vendor of the petitioner. The Additional Collector under the impugned order dated 12.12.2013 has rightly came to the conclusion that the lease could not have been granted of land which is covered by Section 132 of the Act. 11. In the opinion of the Court, no rights could have accrued to the petitioner by virtue of his sale deed dated 18.01.2008 as his vendor had limited rights ad could not have transferred the leased plots. There is no dispute as to the fact that Johad Land (Pond) is land covered by Section 132 of the U.P.Z.A. & L.R. Act, 1950. The status of the vendor of the petitioner can be of an Aasami year to year. I am fortified in my view by the provisions of Section 198(9) of the U.P.Z.A. & L.R. Act, 1950 which contains a deeming clause with regard to any land specified in Section 132 leased out to a tenure holder as Sirdar or Bhumidhar with non-transferable rights prior to a specified date. I am fortified in my view by the provisions of Section 198(9) of the U.P.Z.A. & L.R. Act, 1950 which contains a deeming clause with regard to any land specified in Section 132 leased out to a tenure holder as Sirdar or Bhumidhar with non-transferable rights prior to a specified date. The Section 198(9) of the U.P.Z.A. & L.R. Act, 1950 is reproduced below: “Section 198(9) of the U.P.Z.A. & L.R. Act, 1950 :-Where any person has been admitted to any land specified in Section 132 as a sirdar or bhumidhar with non-transferable rights at any time before the said date and such admission was made with the previous approval of the Assistant Collector-in-charge of the sub-division in respect of the permissible area mentioned in sub-section (3), then notwithstanding anything contained in other provisions of this Act or in the terms and conditions of the allotment or lease under which such person was admitted to that land, the following consequences shall, with effect from the said date ensure, namely- (a) the allottee or lessee shall be deemed to be an asami of such land and shall be deemed to be holding the same from year to year and the allotment or lease of the land to the extent mentioned above shall not be deemed to be irregular for the purposes of sub-section (4); (b) the proceedings, if any, pending on the said date before the Collector or any other Court or authority for the cancellation of the allotment or lease of such land, shall abate.]” 12. The above provisions indicates that allotments made prior to November 10, 1980 of land specified under Section 132 as Sirdar or Bhumidhar shall be treated to be a Aasami year to year. Thus the allotment in favour of Mohd. Ali Vendor of the petitioner was in the nature of an Aasami lease year to year. There is no provision under the U.P.Z.A. & L.R. Act, 1950 whereunder an Aasami can be granted Bhumidhari rights in respect of the land leased to him and thus permitting him to transfer the land by way of sale deed. The petitioner being a transferee from the original Aasami cannot acquire any rights over the land. The sale deed dated 18.10.2008 executed in favour of the petitioner is in fact void ab-initio and no rights can be said to accrue to the petitioner therefrom. The petitioner being a transferee from the original Aasami cannot acquire any rights over the land. The sale deed dated 18.10.2008 executed in favour of the petitioner is in fact void ab-initio and no rights can be said to accrue to the petitioner therefrom. The Court is not impressed by the argument of learned counsel for the petitioner that he is a bonafide purchaser of the plot for consideration and the impugned orders could not have been passed till the sale deed stood cancelled. The Court is also not impressed with the submission of learned counsel for the petitioner that possession of the plot in question could not be taken except by filing a suit for eviction. 13. Section 194 of the U.P.Z.A. & L.R. Act provides that the Land Management Committee shall be entitled to take possession of land comprised in a holding or part thereof in certain situations including a situation where the land covered by Section 132 of the Act was held by an Aasami and the Aasami has been ejected or his interest therein has otherwise extinguished. Section 194 of the U.P.Z.A. & L.R. Act, 1950 is reproduced here under:- “194. Land Management Committee to take over land after extinction of interest therein. - The [Land Management Committee] [Substituted by Uttar Pradesh Act No. 37 of 1958.] shall be entitled to take possession of land comprised in a holding or part thereof if- (a) [ the land was held by a bhumidhar, and his interest in such land is extinguished under Clause (a) or Clause (aa) of Section 189 or Clause (a), Clause (b), Clause (c), Clause (cc) or Clause (e) of Section 190;] [Substituted by Uttar Pradesh Act No. 8 of 1977 (w.e.f. 28.01.1977).] (b) [* * *] [Omitted by Uttar Pradesh Act No. 8 of 1977 (w.e.f. 28.01.1977).] (c) the land being land falling in any of the classes mentioned in Section 132, was held by an asami and the asami has been ejected or his interest therein have otherwise extinguished under the provisions of this Act.” 14. Thus the Land Management Committee/Gaon Sabha concerned is within its powers to take possession of the land after interest of Aasami in any land gets extinguished. 15. In view of the above, this Court is not inclined to interfere in the orders impugned. Consequently, the writ petition is dismissed. Thus the Land Management Committee/Gaon Sabha concerned is within its powers to take possession of the land after interest of Aasami in any land gets extinguished. 15. In view of the above, this Court is not inclined to interfere in the orders impugned. Consequently, the writ petition is dismissed. However, there will be no order as to costs.