Heard learned counsel for the petitioner and learned standing counsel for the respondents No. 1 to 3.
Property in dispute is plot no.111 area is 4 bigha 15 biswa (1.2 hectare) situate in village Rampur, Pargana Seohara, Tehsilr Dhampur, District Bijnor. Petitioner claims that since Zamindari abolition his father was Asami of the plot in dispute and after his death he became Asami. Annexure 1 to the writ petition is copy of Khasra 1359 fasli showing the name of petitioner's father under the category of Asamiyan Arajiyat (properties) used for growing Singhra etc. After the death of petitioner's father name of the petitioner was mutated in the revenue record in the same capacity.
S.D.O. Dhampur on 20.2.2006 on the basis of Tehsildar's report dated 15.11.2006 held in three lines order that period of patta of 5 years was over hence patta was cancelled and mutation shall be affected in the revenue record by entering the name of Gaon Sabha. By virtue of proviso to Rule 176-A of the Rules framed under U.P.Z.A. & L.R. Act it is provided that no lease shall be made to an Assami for a period exeeding 5 years. This Rule was substituted in 1975. Under the aforesaid proviso order dated 20.2.2006 was passed. However, that order was passed without hearing petitioner. Against the said order petitioner filed Revision No.105 of 2005-06 Additional Commissioner (Judicial) Moradabad allowed the revision on 30.11.2006 set aside the said order and directed the S.D.O. to pass fresh order after hearing the petitioner. The S.D.O. passed fresh order on 29.9.2007 in case no.151 of 2007 under Rule 176 (A) U.P.A.L.R. Rules State Vs. Dayaram reaffirming his earlier order dated 20.02.2006. Against order dated 29.9.2007 petitioner filed revision being Revision No.109 of 2007-08, Additional Commissioner (Judicial) Moradabad, division Moradabad, dismissed the revision on 29.2.2008. Through this writ petition all the three orders dated 20.2.2006 and 29.9.2007 passed by the S.D.O. and dated 29.2.2008 passed by Additional Commissioner have been challenged.
Under Section 21(1)(e) of U.P.Z.A. & L.R. Act, it is provided that every person who on the date immediately preceding the date of vesting occupied or held a land as a non-occupancy tenant of pasture land or of land covered by water and used for the purpose of growing singhara or other produce or of land in the bed of a river and used for casual or occasional cultivation shall be deemed to be Asami thereof. Under Section 129 of the Act, Asami is one of the classes of tenure-holders. Under Section 133 of the Act, Asami (Asami rights) are defined. Under clause (a) of the said section it is mentioned that a person who as a consequence of the acquisition of estate becomes an asami under Section 21 shall have asami rights under the Act. Under Clause-C of Section 133 of the Act it is mentioned that 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 shall have asami rights under the Act. Under Section 146 it is provided that Asami shall have right to exclusive possession of all land comprised in his holding, however under Section 153 it is provided that interest of an asami shall not be transferable. Under Section 170, it is provided that an asami can bequeath by Will his holding. However under Section 171 of the Act after the death of an asami the land devolves upon his heirs as mentioned in the said section.
In para-15 of the writ petition it has been stated that Land Management Committee respondent No.3 since 1978 started to grant lease/ realise lagan from the petitioner. As Annexure-4A about 15 receipts of payment of lagan at the rate of Rs.100/- per year have been annexed. The receipts were issued by the Chairman, L.M.C. and the property mentioned in the said receipt is plot No.111 Samaj (Gram Samaj). The receipts have been issued from the year 1978. The last receipt is of Rs.400/- for the period from 1985 to 1988, dated 29.01.1989.
The courts below have decided the matter against the petitioner treating him (or his father) to be lessee of gaon sabha land covered by Section 132 of U.P.Z.A.&L.R. Act. Rule 176-A under which the impugned orders have been passed also refers to lease made to an asami by the gaon sabha. However, the case of the petitioner is that his father was asami under Section 21 (1) (e) of the Act. Neither the petitioner claimed to be lessee on behalf of gaon sabha nor any such thing is mentioned in the impugned orders. If the allegation of the petitioner that the name of his father was entered as asami since zamindari abolition and his name continued in the revenue records as such and after the death of his father petitioner's name was mutated in the revenue records in the same capacity is correct then petitioner is not liable to eviction.
Accordingly, the impugned orders are set aside and the matter is remanded to the Sub Divisional Officer to decide the same afresh in the light of the above observations.
One Chhotan had filed an impleadment application on 19.8.2008 in this writ petition however no one appeared on his behalf at the time of arguments. Chhotan pleaded that on 24.5.2008 property in dispute which was a pond had been allotted to him for fisheries purposes for a negligible amount of Rs.1250/- per year. As orders passed against the petitioner have been set aside hence the allotment in favour of Chhotan automatically vanishes.
Writ petition is disposed of accordingly.
Petitioner is directed to appear before the S.D.O. concerned alongwith certified copy of this judgment on 7.11.2012.
Order Date :- 24.9.2012 NLY