Heard Sri Pradeep Kumar Rai, learned counsel for the petitioner, Sri Vishnu Kumar, learned Standing Counsel appearing on behalf of respondent Nos. 1 and 2 and Sri Rajesh Yadav, learned counsel appearing on behalf of respondent Nos. 3 and 4.
This writ petition has been filed challenging orders dated 18.07.2019 passed by the Board of Revenue at Allahabad in Revision No.726 of 2019, affirming an order dated 30.01.2019 passed by the Additional Collector (Finance & Revenue), Saharanpur in Case No.00345 of 2018 State Vs. Mahendra Singh and others under Section 128 of the U.P. Revenue Code. It appears that the petitioner was allotted land way back in the year 1983 through a resolution of the Land Management Committee dated 07.05.1983, that was approved by the Sub-Divisional Magistrate on 20.01.1984, on a asami patta over Khasra No.102M, admeasuring 0.615 hectares situate at village Saloni. The allotment of asami patta aforesaid was over land as above described, that is recorded as pasture land (Charagah). It is admittedly public utility land as defined under Section 132 of the U.P. Zamindari Abolition and Land Reforms Act (since repealed). The Collector, Saharanpur by his order dated 06.02.2018, appears to have taken suo moto proceedings under Section 128(1) of the U.P. Land Revenue Code, 2006 to expunge entries made on public utility land in favour of the petitioner as an asami. It is not in dispute that the land in question is described in CH-Form 41 and CH-Form 45 as land of category 6(4), that is a charagah, which under the law is public utility land within the meaning of Section 132, last mentioned. The Additional Collector, Saharanpur before whom the case commenced on suo moto proceedings taken by the Collector, came up for determination on 30.01.2019. The Additional Collector, after hearing all parties including the petitioner held that the petitioner was allottee on the basis of an asami patta on public utility land, which in accordance with the Rule 176-A(1) of the Rules framed under the U.P. Zamindari Abolition and Land Reforms Rules, is self determinative and limited in time to a period of five years. He, accordingly, held that the land in question being public utility land wherein no rights in the nature of a Sirdar/Bhumidhar with non-transferable rights or further enlargement of those rights could be done, cannot continue in the petitioner's name. Accordingly, the petitioner's name was expunged from the revenue records vide order dated 30.01.2019.
Aggrieved, the petitioner filed a Revision to the Board of Revenue, under Section 210 of the U.P. Revenue Code. The Revision aforesaid was heard and dismissed vide judgment and order dated 18.07.2019.
Aggrieved, the present writ petition has been filed.
The Board of Revenue, while affirming the order of the Additional Collector also recorded a finding that there were other patta holders similarly circumstanced as the petitioner, who held land on an asami patta, with a limit in time of five years. He, therefore, ordered their rights to be expunged from the revenue records. These similarly circumstanced patta holders questioned the expunction of their rights from the revenue records before this Court through Civil Misc. Writ Petition No.59049 of 2016, Dharmendra and 10 Others Vs. State, where this Court vide judgment and order dated 10.01.2017, dismissed the writ petition holding that public utility land covered by Section 132 U.P. Zamindari Abolition and Land Reforms Act, could not be the subject matter of creation of rights under Section 122-B(4-F) of the U.P. Zamindari Abolition and Land Reforms Act. The Board have remarked that though the revisionist urged that he was not a party to that petition and, therefore, the decision would not bind him, but the fact remains that the rights of the petitioner are identical to those, regarding whom this Court has already pronounced vide judgment and order dated 10.01.2019 passed in Civil Misc.Writ Petition No.59049 of 2016. The Board have also remarked that the finding of the Authority below is a finding of fact that the land in dispute is a recorded charagah and that the said factual position is not in dispute. It was opined to conclude that public utility land could not be the subject matter of a settlement as bhumidhar with non transferable rights or still larger rights, but could be held on a asami patta that was limited in point of time to a specified period of five years from the date it was granted. The order passed by the Additional Collector was, therefore, affirmed by the Board.
Before this Court, Sri Pradeep Kumar Rai, learned counsel for the petitioner has urged that the petitioner's rights are protected under Section 198(9) of the U.P. Zamindari Abolition and Land Reforms Act, and, therefore, the entries in his favour already made cannot be expunged.
The provisions of Section 198(9) of the U.P. Zamindari Abolition and Land Reforms Act, reads thus:
"198. Order of preference in admitting persons to land under Sections 195 and 197.-
(1)....................x...............x (9) 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 ensue, 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 of lease of such land, shall abate."
Sri Vishnu Kumar, learned Standing Counsel has refuted the aforesaid submission of the learned counsel for the petitioner and contended that the provisions of Section 198(9) of the U.P. Zamindari Abolition and Land Reforms Act, are not attracted to the facts of the present case.
A perusal of the provisions of sub-section (9) of Section 198 of the Act shows that for the said provision to be attracted, the first condition is that the person, who claims benefit must have been admitted to any land specified in Section 132 as a sirdar or bhumidhar with non-transferable rights at any time before 10.11.1980 (as mentioned in sub-section (6) of Section 198) 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). If all the said conditions are fulfilled, the consequence that would ensue are detailed in clauses (a) and (b) of sub-section (9) of Section 198. It is clearly mentioned in clause (a) of sub-section (9) (supra) that 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, but the allotment or lease of the land shall not be deemed to be irregular for the purposes of sub-section (4), that may entitle the Collector to enquire into its validity or cancel the allotment and the lease by virtue of sub-section (4).
In this matter, it is neither the petitioner's case nor evidence to that effect forthcoming that the petitioner was admitted as a sirdar or a bhumidhar with non transferable rights. He was admitted as an asami on a asami patta. It is another matter that on the basis of certain subsequent orders, he may have been recorded as bhumidhar with non-transferable rights in proceedings under Section 122-B(4-F), but that does not entitle him to the benefit of sub-section (9) of Section 198, where the essential condition is that the person who claims benefit should have been admitted as sirdar or bhumidhar with non-transferable rights. The provision is clearly not available to a person who has entered on a asami patta over land that is public utility land under Section 132 of the U.P. Zamindari Abolition and Land Reforms Act.
Sri Pradeep Kumar Rai, learned counsel for the petitioner has further placed reliance upon the provisions of Section 197 U.P. Zamindari Abolition and Land Reforms Act, that read to the following effect:
"197. Admission to land mentioned in Section 132.- (1) The Land Management Committee with the previous approval of the Assistant Collector in charge of the Sub-Division shall have the right to admit any person as asami to any land falling in any of the classes mentioned in Section 132 where-
(a) the land is vacant land,
(b) the land is vested in the Land Management Committee, or
(c) the land has come into the possession of the Land Management Committee under Section 194 or under any other provision of this Act.
(2) Notwithstanding anything contained in any other provisions of this Act, the right to admit any person as asami of any tank, pond or other land, covered by water shall be regulated by the rules made under this Act."
He submits that the Land Management Committee is empowered with the previous approval of the Additional Collector, in-charge of the Sub-Division, to admit any person as asami of any land falling in any of the classes mentioned in Section 132, subject to conditions specified in sub-clauses (a) and (b), and that these in this case, are all fulfilled. It is not disputed that the petitioner was admitted as an asami way back in the year 1983, after an approval of the Competent Authority. The question is whether those asami rights would entitle him to the protection of sub-section (9) of Section 198 of the U.P. Zamindari Abolition and Land Reforms Act. That clearly in the opinion of this Court, not available to the petitioner.
On the other hand, the reasoning, on which the Authorities below have proceeded to expunge the name of the petitioner from the revenue records, is founded on Rule 176-A(1) of the U.P. Zamindari Abolition and Land Reforms Rules.
Rule 176-A(1) of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, reads thus:
"176-A(1) On receipt of the list in Z.A. Form 57-B with the order of the Assistant Collector in-charge of the Sub-Division, the Chairman of the Land Management Committee shall call the person whose selection for allotment of land has been approved by the Assistant Collector in-charge of the sub-division and shall furnish to him a certificate in Z.A. Form 58 and shall get a counterpart in Z.A. Form 58-A executed by him. If the land sought to be allotted is a land referred to in Section 132, the person concerned shall be furnished with the certificate in Z.A. Form 59 and shall be asked to execute a counterpart in Z.A. Form 59-D.
Provided that no lease shall be made to an Asami for a period exceeding five years.
(2) It shall be lawful for the Assistant Collector in-charge of the sub-division to determine at the time the lease in favour of an Asami and upon such determination, the Asami shall not be entitled to any compensation."
(emphasis by Court) The proviso to sub-section (1) of Section 176-A shows that a person, who has been given a lease as an asami shall have rights that would not enure beyond a period of five years. Thus, an asami patta, of a particular land that is public utility land, would be self determinative by lapse of time.
In the opinion of this Court, there is no provision under the law by which a person admitted to a public utility land envisaged under Section 132 of the U.P. Zamindari Abolition and Land Reforms Act, like pasture land (charagah) as an asami can hold rights beyond a period of five years. The Authorities below have, therefore, rightly expunged the name of the petitioner from the revenue records. There is no manifest illegality or error apparent that may call for interference by this Court with the orders impugned.
In the result, the writ petition fails and is dismissed.
It is clarified that the orders impugned relate to entries in the revenue records and the respondents would have liberty to evict the petitioner on the basis that his rights have come to an end, in the manner prescribed by law.
Order Date :- 27.9.2019 NSC