Heard Sri G.c. Verma, learned counsel for petitioners, Sri M.E. Khan, learned State Counsel and perused the record.
By means of the present writ petitioner, the petitioner has challenged the order dated 12.03.2015 passed by Respondent No. 2/Sub-Divisional, Officer, Tehsil Mishrik, District- Sitapur, Facts of the present case are that the controversy involved in the present case relates to the land recorded as Khata No. 324 Gata No. 194/0.077 hectare, and Gata No. 326/0.142 hectare situated at Village Thakurnath, Pargana Aurangabad, Tehsil Mishrikh, District Sitapur (hereinafter referred to as the land in dispute).
In respect to the land in dispute, a notice to the petitioners have been issued by the competent authority inter alia stating therein that why the petitioners' patta in respect to the land in question should not be cancelled. Thereafter a report was submitted by Bhulekh Nirikshak, Mishrikh, District Sitapur to the effect that:
"ग्राम ठाकुरनगर पर० औरंगाबाद तह० मिश्रीत में खाता सँ० ३२४ पर राम दुलारे आदि पुत्रगण त्रिलोकी का नाम श्रेणी ३ में अंकित है इन्होंने ग्रामसभा को लगान अदा नहीं किया है | तथा अवधि पूर्ण हो चुकी है पट्टा निरस्त करके श्रेणी ६ तालाब में अंकित करने हेतु आख्या प्रेषित"
Tehsildar by letter dated 09.1.2009 forwarded the same to respondent No. 2 to take necessary action. Accordingly, the order dated 12.03.2015 (Annexure No. 1) has been passed by Sub-Divisional Officer/respondent No. 2, under challenge in the present writ petition.
Learned counsel for petitioner while challenging the impugned order submits that the land in dispute belongs to one Musadka Sahab Mohatmin/Zamindar, in this regard he has placed reliance on the khatauni of the fasli year 1337 fasli (Annexure No. 2), the said person/Zamindar has given the land to the petitioners by way of patta who belongs to Kahar Caste to grow Singhada when water is available over it. Since then petitioners are yielding the crop of Singhada are in possession.
It is further submitted by learned counsel for petitioners that after receipt of the notice, petitioners have deposited the rent as required to be deposited by them while holding the land in question in the capacity of Asami Patta Holder/Class-3.
On behalf of the petitioners, it is also submitted that the respondents should have adopted the procedure as provided under Section 198(4) of the U.P.Z.A. & L.R. Act for cancellation of the patta awarded to them.
Learned counsel for petitioner also submits that no adequate opportunity has been given to the petitioners prior to passing of the order as well as no notice has been given to the petitioners, so impugned order is violative of principles of natural justice, liable to be set aside.
Sri M.E. Khan, learned State counsel while supporting the impugned order submits that in the present case, petitioners were Asami Patta Holder of land for the maximum period of five years, so after expiry of five years, petitioners have got no right to hold the land in question, as such the impugned order is perfectly valid, needs no interference by this Court.
After hearing learned counsel for parties and going through the record as well as taking into consideration the case of the petitioners that land in question belong to erstwhile Zamindar/ Musadka Sahab Mohatmin and in the year 1337 fasli, the land has been given to the petitioners on Patta, so they are Class-3 tenant/Asami.
Further, from the perusal of the document annexed by the petitioners i.e. Khatauni of fasli year 1337 (Annexure No. 2), the position which emerged out that in column No. 11, Kafiyat no entry has been made in respect to the fact that land in question has been given to the petitioners by the erstwhile Zamindar even if it is assumed that the land in question has been given by the erstwhile Zamindar to the petitioners for growing Singhada etc. when it was merged with water, so they are Asami Patta Holder. In that circumstances, as per the settled position of law, the Assami Patta of five years from the date of its grant, so the petitioners have no right over the land.
Thus, after expiry of the period of five years, the land is correctly recorded as Talab in the revenue record as per the provisions of Section 4 of the U.P. Z.A & L.R. Act will vest with the State and the management will vested with the Gaon Sabha by virtue of the provisions as provided under Section 117of the U.P.Z.A. & L.R. Act.
So far as the argument advanced by learned counsel for petitioner that no notice has been given to the petitioners prior to passing of the impugned order, as such the impugned order is in violation of the principles of natural justices.
Rule 176-A of the Rules framed under the Act, (hereinafter referred to the as the 'Rules') as it stands today w.e.f. 1.11.1975, provides that no Assami lease shall be made for a period exceeding five years. Therefore, in case of period of lease not being specified, it shall be treated as one on year to year basis with the maximum period of five years. Thus, the lease granted to the petitioner by way of Assami Patta automatically after expiry of the period as mentioned therein or utmost after five years from the date of initial grant.
This Court in the case of Hari Ram Vs. Collector 2004 (97) RD 360 observed that where there is no material on record to establish the period of Assami lease it shall be assumed to be a lease from year to year only. This decision has been followed with approval by this Court in Ashok Kumar Vs. State of U.P. and others 2011(5) AWC 5026 equivalent to 2011 (7) ADJ 748, so after the date of vesting the land would be treated as public utiility land as detailed in Section 132 of the Act and managed by Land Management Committee.
In Kehri Singh and others Vs. State of U.P. through Collector, Mathura 2007 (102) RD 872 it has been provided that the holder of Assami lease is liable to eviction in a summary manner after expiry of period of lease by expunging the name from the revenue records.
In Nasir Hasan Vs. District Deputy Director of Consolidation/Collector, Bijnor and others, reported in 2009 (108) RD 17, this Court relying upon various decisions of the Apex Court held that where someone complains of denial of opportunity of hearing, he must show if opportunity was given given him what plausible cause he would have taken to defend himself. Thus, it was held that as the petitioner was unable to justify continuance of possession after expiry of Assami lease, he was not entitle to any relief on account of denial of opportunity. In other words, notice or opportunity of hearing is not an empty formality and would not be necessary if the person complaining of denial of opportunity of hearing has no cause to show or even if shown it would not ultimately alter the result.
A similar view was expressed in Chhotti Vs. State of U.P. and others 2010 (109) RD 240 that Assami lease holder has no right to continue in possession on the expiry of lease and his name is liable to be expunged from revenue records. No opportunity of hearing is necessary when nothing plausible has been stated about the defence which may also change the outcome.
In the instant case also the Assami lease of the petitioner stands determined by the Statute itself i.e. by virtue of Rule 176-A of the Rules on the expiry of five years from the date of initial grant. So, the same stands determined with efflux of time. Therefore, there was no necessity for any fresh determination and the petitioners are liable for eviction by expunging of their names in the revenue records for which even notice or opportunity of hearing would have been an empty formality as the petitioners are unable to justify their continuance in possession over the land in dispute after expiry of the lease period. As such, the argument advanced by learned counsel for petitioners that neither any notice nor any opportunity has been given, hence the impugned order is violative of principles of natural justice, has got no force because petitioners have got no right over the land in question after the expiry of five years from the date of grant of patta as they are assami patta holders.
Further, the argument raised by learned counsel for petitioners that the lease of the petitioners cannot be cancelled without invoking the provisions as provided under Section 198 (4) of the U.P.Z.A. & L.R. Act has got no force because provisions of Section 198(4) of the Act for cancellation of the lease comes into play only when the land is being given by way of patta to any person by the Gaon Sabha/Land Management Committee whereas the same has no applicability because as per the petitoienr case they have been granted Assami Patta by the erstwhile Zamindar prior to vesting, so afer the expiry of five years from its grant, the land is a public utility land as per Section 132 of the Act and managed by the Gaon Sabha.
At the time of vesting i.e. 01.07.1952 (1360 fasli) the land in question shall vest with the State which is previously held by the erstwhile Zamindar under the tenancy Law.
So far as the argument advanced by learned counsel for petitioner that the petitioner has deposited the rent after expiry of the term of the lease cannot confer any right to the petitioners as the principles of holding over as enshrined under Section 116 of the Transfer of Properties Act, 1882 do not apply to agricultural leases.
For the foregoing reasons, I do not find illegality or infirmity in the impugned order under challenge in the present writ petition.
Accordingly, the writ petition lacks merit and is dismissed.
Order Date :- 21/12/2016 Ravi/