Heard Sri Anurag Pandey holding brief of Sri D.V. Jaiswal learned counsel for the petitioner and the learned standing counsel.
This petition has been filed assailing the appellate order passed by the Respondent No.12 Collector, Rampur dismissing the appeal on the ground of limitation and it also assails the order dated 8.5.1992 passed by the respondent No.11 Sub Divisional Officer, Sahabad district Rampur whereby the contesting respondent nos. 1 to 10 have been permitted to run a market over their bhumidhari land under Section 142 of the U.P.Z.A. & L.R.Act, 1950.
The background of the case is that the order was passed in favour of contesting respondents dated 8.5.1992 and a copy of the said order has been filed along with a supplementary affidavit dated 21.12.2001. A perusal of the said order demonstrates that the contesting respondents have been allowed to hold a market over their bhumidhari land situated in Village Sahabad on every Tuesday and Saturday. This order according to the petitioner has been purportedly passed under Section 142 of the U.P.Z.A.L.R. Act which is being quoted here:
"142. Right of a Bhumidhar to the exclusive possession of all land in his holding -(1) A bhumidhar with transferable rights shall, subject to the provisions of this Act, have the right to exclusive possession of all land of which he is a bhumidhar and to use it for any purpose whatsoever.
(2) A bhumidhar with non-transferable rights shall, subject to the provisions of this Act, have the right to exclusive possession of all land of which he is such bhumidhar and to use such land for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture, poultry farming and social forestry."
The contention raised above that the said order is without jurisdiction inasmuch as the petitioner Nagar Panchayat is the authority to regulate the market and fairs within its area and therefore in view of the provisions of the Town Area Act and the provisions of Section 241 read with Section 298 of the U.P. Municipalities Act it is the petitioner who is entitled to grant or refuse any such permission and hence the order passed by the Sub Divisional Officer deserves to be set aside. It has further submitted that even though the appeal was filed as a Misc. Appeal yet it could not have been rejected on the ground of limitation as the delay has been fully explained. Nonetheless the order dated 8.5.92 being without jurisdiction the writ petition deserves to be allowed.
No notice had been issued in this petition and the matter remains pending for 11 years.
The provisions of Section 142 of the U.P.Z.A.L.R Act authorise a bhumidhar to utilise his land in terms of the said provisions. In the opinion of the Court the order dated 8.5.92 simply acknowledges the said rights and nothing beyond the same. The right of the bhumidhar to enjoy his holdings for the purpose of running a market or holding a Hat came up for consideration before a Division Bench of this Court in the case of Shivraj Singh Vs. State of U.P. and others reported in 1976 RD 109 and the law was explained in para 21 and 25 of the said decision that such right is a right to immoveable property and further the Hats, Bazars and Melas held on such bhumidhari plots are within the proprietary rights of the tenure holders. It was held categorically that the right to hold market on their own land is a right to immoveable property and reliance was placed on the earlier decision in the case of Ganesh Singh and another Vs.Shitla Bux Singh and others reported in AIR 1931 Oudh 110. The proprietary rights and the nature of the tenure of the bhumidhar was explained with the help of the Apex Court decision in the case of Rana Sheo Ambar Singh V.Allahabad Bank AIR 1961 SC SC= 1969 R.D.288.
Such rights were also acknowledged by a learned Single Judge of this Court in the case of Lakshmi Narain Upadhya V. Gram Sabha reported in 1998(3) AWC 1629 wherein paras 8 and 11 the Court observed as follows:
"8. Undoubtedly, every citizen or person has a right to choose his own employment or to take up any trade or calling, subject only to the limits as may be imposed by the State in the interests of the public welfare. This fundamental right has been guaranteed under Article 19(1)(g) of the Constitution of India. The defendant-appellants admittedly are holding cattle hats on their own plots in the village and similarly, Gaon Sabha of the village is holding hat over its own plots. Both the parties, therefore, have an innate right to hold the hats on their own plots without any let or hindrance from any quarter. The fate of present litigation would, however, turn one way or the other on the question as to whether the Gaon Sabha has a right to regulate the holding of the hat or to restrict the right of the defendant-appellants in holding hat on their own plots. The defendant-appellants, therefore, would swim or sink on the validity or otherwise of the resolution dated 14.8.1977 alleged to have been adopted under Section 15 (h) of the Act. Chapter IV of the Act deals with the powers, duties, function and administration of Gaon Panhayat, Section 15, which is entitled as 'Duties and Function' runs as follows:
"it shall be the duty of every Gaon Panchayat so far as its funds may allow to make reasonable provisions within its jurisdiction for:
(a).............................................to
(g).............................................
(h) regulation of melas, markets and hats within its area, except those managed by the State Government or the Zila Parishad and without prejudice to the provisions of the U.P.Melas Act, 1938.:
11.....In the instant case, what the Gaon Panchayat has done is that in order to promote its own hat on plot numbers, 832,835,836 and 837. It has restricted/prohibited the holding of hat by the defendant-appellants on their ownplot numbers 830A, 830B, 834, 842 and 843. As said above, the defendant-appellants have a fundamental right can be curtailed or restricted only by putting reasonable restriction by a valid law. Total prohibition is permissible in cases where trade is inherently dangerous, such as, trading in dangerous goods, explosives, tourism or trafficking in women or the like, but where there is a lawful business activity, it cannot in any manner be subjected to any fetters or restrictions in the absence of any law. A regulation, therefore, cannot disobey the constitutional provisions/prohibitions by employing an indirect method. In order to be reasonable, the restriction must have a reasonableness to the object. In short, a regulation cannot go to the extent of virtually eliminating the right guaranteed, by introducing regulations which are not related to the interest of the private persons holding a hat even though the regulation may be in the interest of general public."
The Sub Divisional Officer therefore has simply acknowledged the rights ,which are vested in the contesting respondents as explained in the decisions herein above. It is not the case of the petitioners that the respondents are indulging in any obnoxious trade or are violating some mandate of the constitution.
The petitioner's appeal filed against the said order was allowed and remanded and the Sub Divisional Officer again maintained his earlier order. While doing so the Sub Divisional Officer relied on the statements of Town Area Clerk Zaheerual Islam and Abdul Wahid and that in view of the map as produced by another clerk Funnan Khan, the market which was being held was found out side the limits of the Town Area/petitioner Nagar Panchayat. In view of this finding which could not be successfully assailed before this court, the applicability of the provisions of the Town Area Act or any regulations or even otherwise could not have been alleged by the Town Area.
Apart from this, the evidence adduced indicates that the contesting respondents, in accordance with the Zila Parishad Adhiniyam, had obtained licence from the Zila Parishad upon payment of the requisite fee. Thus on all scores the order dated 8.5.92 cannot be said to be suffering from any infirmity.
The writ petition lacks merit and is accordingly dismissed.
Dt.22.2.2011 Shiraj/mna