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2012 Supreme(All) 3395
ALLAHABAD HIGH COURT
Sibghat Ullah Khan, J.
Daya Ram - Appellant
Versus
Addl. Commissioenr (Judicial) Moradabad Division & Others - Respondent
C.M.W.P. No. 30827 of 2008
Decided On : 24-09-2012
For the Petitioner: Radha Mohan Pandey
For the Respondent: C.S.C., Anuj Kumar, Anuj Kumar, A.S.C., Bhanu Pratap Verma, M. A. Zaidi, M.A. Khan
The central legal point established in the judgment is the proper consideration of a petitioner's claim as an Asami under the U.P.Z.A. & L.R. Act, and the consequences of such status on eviction and land rights.
Headnote:
Zamindari Abolition - Property Dispute - U.P.Z.A. & L.R. Act, Section 21(1)(e), Section 129, Section 133, Section 146, Section 153, Section 170, Section 171, Rule 176-A - The court discussed the provisions of U.P.Z.A. & L.R. Act, particularly focusing on the definition and rights of Asami, the transferability of interest, and the devolution of land upon the death of an Asami. The court set aside the impugned orders and remanded the matter for fresh decision based on the observations made.
Fact of the Case:
The petitioner claimed rights to a plot of land as an Asami under the U.P.Z.A. & L.R. Act. The S.D.O. cancelled the patta and directed mutation in the revenue record in favor of Gaon Sabha. The petitioner challenged three orders, and the court set them aside, remanding the matter for fresh decision.
Finding of the Court:
The court found that the petitioner's claim as an Asami was not properly considered, and the impugned orders were set aside. The matter was remanded for fresh decision.
Issues: The issues revolved around the petitioner's status as an Asami, the cancellation of patta, and the mutation in the revenue record in favor of Gaon Sabha.
Ratio Decidendi: The court held that if the petitioner's claim as an Asami since zamindari abolition was correct, he was not liable to eviction. The impugned orders were set aside, and the matter was remanded for fresh decision.
Final Decision: The writ petition was disposed of accordingly, and the petitioner was directed to appear before the S.D.O. concerned with a certified copy of the judgment.
Sibghat Ullah Khan, J.
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.
2. 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.
3. 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.
4. 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 r
