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2008 Supreme(All) 3024
IN THE HIGH COURT OF ALLAHABAD
Rajes Kumar, J.
Aneesa Khatoon – Appellant
Versus
State of U.P. and Others – Respondent
Decided On : 14-11-2008
The main legal point established in the judgment is the interpretation and application of Rule 176-A of the U.P.Z.A. & L.R. Act, which governs the validity and duration of leases and the rights of inheritance over the disputed land.
Headnote:
U.P.Z.A. & L.R. Act - Land Dispute - 333 - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Section 171(1) and Rule 176-A of the U.P.Z.A. & L.R. Act. It interpreted the provisions to determine the validity and duration of the lease, and the rights of inheritance over the disputed land. The court's decision was influenced by the interpretation of Rule 176-A, which limited the lease period to five years and allowed for determination of the lease in favor of the asami.
Fact of the Case:
The dispute involved a land allotment to the petitioner's father and uncle for agricultural purposes. After their deaths, the petitioner claimed her right over the land as a legal heir. The Sub Divisional Magistrate canceled the lease, leading to a series of revisions and appeals.
Finding of the Court:
The court found that the lease on the disputed land had expired before the death of the petitioner's brother, and therefore, the question of inheritance of the leasehold right did not arise. The court also noted that the orders had been passed after giving the opportunity of hearing.
Issues: The main issues were the validity and duration of the lease, the rights of inheritance, and the opportunity of hearing in the proceedings.
Ratio Decidendi: The court's decision was based on the interpretation of Rule 176-A, which limited the lease period to five years and allowed for determination of the lease in favor of the asami. It also emphasized that the lease on the disputed land had expired before the death of the petitioner's brother.
Final Decision: The writ petition was dismissed as it was devoid of any merit.
Rajes Kumar, J.
By means of the present writ petition, petitioner is challenging the order of the Additional Commissioner (J), Moradabad dated 25.08.2008 passed in revision No. 76/2007-08, u/s 333 of U.P.Z.A. & L.R. Act, Aneesa Khatoon v. State of U.P. and Ors., by which the revision filed by the petitioner has been dismissed.
2. Brief facts of the case giving rise to the present writ petition is that the dispute relates to the land of khasra No. 246 (0.506 hect.) of khata No. 206 situated in village Mohiuddinpur Pargana Kiratpur Tehsil Nazibabad, district Bijnor. It is claimed that the said land was allotted to the father of the petitioner, Nazir Ahmad and uncle Chhidda, both sons of Chhajju @ Majhar in the year 1953 (1360 Fasli) for agriculture purpose as Asami patta. They have been cultivating the same on payment of Rs. 6/- to the Revenue Officer. They have been recorded in Clause 3 category in khatauni. Chhidda died issuless. It is the case of the petitioner that on the death of Nazir Ahmad, Nazar Hasan, the son of Nazir Ahmad inherited the right over the property and came in possession over it. It is claimed that on the death of Nazir Ahmad, the name of Nazar Hasan was recorded in khatauni in Clause 3 category over the allotted land.
3. It appears that Tehsildar has given a report dated 08.04.2002 to the respondent No. 3 alleging that the name of Nazar Hasan recorded in Clause 3 as Asami lease is to be cancelled as the period of lease had come to an end after expiry of five years. On the receipt of the aforesaid report of the Tehsildar, Sub Divisional Magistrate has registered the case No. 81 of 2002, State v. Nazar Hasan under Rule 176-A(2) of U.P.Z.A. & L.R. Rules (hereinafter referred to as "Rules"). Respondent No. 3 vide order dated 30.04.2002 accepted the report of Tehsildar and cancelled the lease and directed to enter the name of Gaon Sabha.
4. It is claimed that during the pendency of the proceedings before Sub Divisional Magistrate, Nazar Hasan died on 10.04.2002 leaving behind the petitioner as legal heirs. Nazar Ahmad was unmarried and was residing with the petitioner. Petitioner is the sister of Nazar Hasan.
5. Feeling aggrieved by the order dated 30.04.2002 passed by Sub Divisional Magistrate, petitioner filed revision No. 782 of 2001-02 u/s 333 of U.P.Z.A. & L.R. Act (hereinafter referred to as "Act"). Additional Commissioner vide order dated 16.09.2004 allowed the revision and set aside the order of Sub Divisional Magistrate dated 30.04.2002 and remanded back the matter to Sub Divisional Magistrate to decide the matter afresh after giving opportunity of hearing to the petitioner. Thereafter, the petitioner appeared before the Sub Divisional Magistrate and filed her objection dated 03.03.2005 and claimed her right over the land in dispute being legal heirs. Sub Divisional Magistrate vide order dated 22.11.2007 rejected the objection of the petitioner on the ground that Nazar Hasan died, therefore, the allotment automatically come to an end. Aggrieved by the order, petitioner filed revision No. 76 of 2007-08 u/s 333 of the Act, which has been dismissed by the impugned order.
6. Additional Commissioner held, that before the land was given for Asami lease it was cattle field and can be used only for growing singhara and sometimes can be used for agriculture purpose. It is the land for public use u/s 132 of the Act on which no bhumidhar right can be given. He upheld the order of the court below that on the death of Nazar Hasan, lease stand cancelled. He further held that no evidence has been adduced that the revisionist is in possession over the land prior to 1952.
7. Learned Counsel for the petitioner submitted that the petitioner has heridatory right over the land in view of the provisions of 171(1) of the Act. The period of five years will not apply inasmuch as the lease was prior to 1975 when the period of five years has been introduced for Asami lease. He submitted that in the land in dispute the name of
