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Sona Ram Vs. Ram Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 86D of 1962
Judge
Reported inILR1970Delhi681
ActsUttar Pradesh Agricultural Tenants (Acquisition of Privileges) Act, 1949 - Sections 3(1) and 6
AppellantSona Ram
RespondentRam Chand and ors.
Advocates: S.S. Dalal,; H.R. Dhawan,; Bhawani Lal and;
Cases ReferredAmba Prasad v. Mohaboob Ah
Excerpt:
(i) u. p. agricultural tenants (acquisition of privileges) act (1949) - section 3(1) --''occupier'; that the recording of a person as occupant in the revenue records i.e. (khasra or khatuni of the required fasli) was all that was needed to bring him within the meaning of the word 'occupier' and the statute did nto require anything more. ; (ii) u. p. agricultural tenants (acquisition of privileges) act (1949) - section 6-declaration under-effect of.; that declaration obtained under section 6 of act of 1949 gives a vested bhumidari right under the u, p. zamidari abolitions & land reforms act.; (iii) u. p. zamindari abolition and land reforms act (i of 1951) - schedule (v) -object of -bhumidari rights vis-a-vis evacuee property gto under u. p. agricultural tenants (acquisition of.....rangarajan, j.(1) this civil writ petition raises an interesting question about the effect of the u.p. zamindari abolition act concerning what was at one time admittedly evacuee property. a few salient facts which help follow the controversy in this case may have to be noticed. (2) the property in question originally belonged to mohd. ashraf who left for pakistan in 1947. the properties, whatever they were (whether it was grove land, as stated by the petitioner, or merely vacant land on which a few trees only were planted by respondents 1 & 2) were sold, as government acquired property, in an auction held by the managing officer on 25th march, 1957, to the petitioner shri sona ram (now deceased) for a sum of rs.4,600.00. shri sona ram having died an application was made (c.m.-p. no. 1923.....
Judgment:

Rangarajan, J.

(1) This civil writ petition raises an interesting question about the effect of the U.P. Zamindari Abolition Act concerning what was at one time admittedly evacuee property. A few salient facts which help follow the controversy in this case may have to be noticed.

(2) The property in question originally belonged to Mohd. Ashraf who left for Pakistan in 1947. The properties, whatever they were (whether it was grove land, as stated by the petitioner, or merely vacant land on which a few trees only were planted by respondents 1 & 2) were sold, as Government acquired property, in an auction held by the Managing Officer on 25th March, 1957, to the petitioner Shri Sona Ram (now deceased) for a sum of Rs.4,600.00. Shri Sona Ram having died an application was made (C.M.-P. No. 1923 of 1968) to bring on record the legal repre- sentatives of Sona Ram. Shri Dalal and Shri Dhawan, represented the legal representatives also; the petition (CMP No. 1923 of 1968) was nto opposed. The final order to be passed on the said application, however, is that the Cmp is allowed and the petitioners 2 to 6 are brought on record as the legal representatives of the deceased, the first petitioner.

(3) The properties being situate in U.P. on the abolition of the U.P. Zamindari consequent on the land reforms introduced in that State, respondents 1 and 2 were declared by the Assistant Collector, under section 7 of the United Provinces Agricultural Tenants (Acquisition of Privileges) Act 1949, as nto being liable to be evicted by any order or decree of Court, that they would be liable to pay the revenue at half the rate and that on the coming into force of that Act they would be entitled to the grant of Bhumidari rights. This order was issued on the 11th February, 1951. The case of the respondents 1, 2 is that they became the occupiers of the land in question after the evacuee, Mohd. Ashraf, left for Pakistan in 1947 and that by the said order (made Annexure A.I to the return) they were declared to be entitled to the Bhumidari rights in respect of the said land and, thereforee, the Managing Officer could nto sell these lands to the petitioner in the year 1957. It may also be noticed in this connection that the petitioner, on the one side, and respondent 2, on the other, have been asserting that each of them is in possession of the land in question up to the present moment.

(4) It may also be noticed that respondents 1 & 2 are residents of the village Garhi Abdulla Khan (also called Kachi Garhi). Acccording to the petitioners they took, possession of the property, which was according to the petitioner a grove, surreptitiously and began to change the nature of the plto but, despite their efforts, trees were still existing on the plots in question when the Assistant Valuation Officer valued the same in 1953-54. It is further alleged that such cultivation, as took place in the said property, in the inter spaces, was one usually made to nourish the plants in the grove. According to the petitioners the Department for the Administration of Evacuee Property took over the plots, managed them and sold their Bagh Bahar.

(5) The properties were listed and published by the Government of India and allotted to Kishan Dass against his land claim on 29th August, 1956; on the ground that the property was a grove his allotment was cancelled by a notification No. R (37) (5)- III(1) dated the 30th November, 1956, issued by the Government of India. It is from the Department that the petitioner acquired the said property in auction and the possession was delivered to the petitioner on 6th May, 1961. Copies of the sale account as well as record of delivery of possession to the petitioner have been made Annexures 1 & 2 to this petition.

(6) A parallel proceeding took place before the Assistant Custodian of Evacuee Property, Muzaffar Nagar when respondents 1 & 2 applied for depositing ten times the annual yield in order to become the Bhumidars in respect of the said property. On the ground that respondents 1 & 2 were unauthorised persons they were required to deposit twenty times the hereditary, nto merely ten times rent, under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950. This order of the Assistant Custodian (Judicial) Evacuee Property was passed on 17th September, 1957 (vide Annexure B to the reply of the respondents 1 & 2). As against the order the respondents 1 & 2 preferred an appeal which had been decided by the Deputy Custodian General by his order dated the 30th April, 1958 (Annexure C) that respondents 1 & 2 were unauthorised occupants and hence liable to pay twenty times and nto merely ten times. Respondents 1 & 2 deposited the money at the rate of twenty times and were granted a bhumidari certificate on 14th January, 1960 (Annexure D). These two orders by the Assistant Custodian General and the Deputy Custodian General were passed behind the back of the petitioner.

(7) The petitioner complains that a certain amount of confusion was thus purposely created by respondents 1 & 2 who knew about the auction sale in favor of the petitioner but still did nto file any appeal against it.

(8) Respondents 1 & 2 both preferred to the Assistant Settlement Commissioner (U. P.) Lucknow (Shri V. P. Singhal), what they called an appeal but was ultimately treated an objection petition, against the Managing Officer's order dated the 13th January, 1961 informing respondents 1 & 2 that the plots in question, which were neither grove and nor agricultural plots, could nto be the subject matter of the acquisition of Bhumidari rights and since no interest could accrue to respondents 1 & 2 (petitioner) the amount of twenty times collected from them should be refunded. The objections were rejected on the following grounds:

(1)The plots were a grove consisting of 156 (55 mangoes, 41 Guava, 49 Sangtra, 9 Anar, 1 Aru and 1 miscellaneous) fruit bearing trees in an area of 5-19-0, which were existing on the property at the time when the evacuee left India; a Revenue Decision 1948 RD 388 holding that if there were 200 trees on an area of 7 acres it would be a grove, was relied upon. The Assistant Settlement Commissioner held that the Property could nto be treated as agricultural land. (2) The order of the Assistant Custodian dated the 17th September, 1957 was one made without jurisdiction and it was a nullity since the grove could nto be treated by the Central Government as acquired property and notified under section 12 of the Displaced Persons (Compensation and Rehabilitation) Act. (A copy of the said order has been made Annexure 3 to the petition).

(9) In the revision preferred by respondents 1 & 2, against the said decision, Shri Parshotam Sarup, Deputy Chief Settlement Commissioner with delegated powers of the Chief Settlement Commissioner, by order dated the 12th December, 1961, set aside the order of Shri V. P. Singhal on the following grounds:

'(I)A bhumidari sanad had been issued in favor of respondents 1&2 in 1951. (ii) The Assistant Settlement Commissioner erred in treating the plto as a grove since they were nto shown as grove plots but had been merely registered in fasli 1934 as the khud kasht land of the petitioner. (iii) The Assistant Custodian, a Court of fact, after looking to the revenue record had rightly granted bhumidari rights in 1951 to respondents 1 & 2. (iv) The order of acquisition of property (which was nto evacuee property, (having been notified as evacuee property, on 30th November, 1956) was wrong and could nto be looked into. (v) The order of the Assistant Custodian (Judicial) granting respondents 1 & 2 the right to acquire bhumidari rights on payment of twenty times compensation (hereditary rent) having been confirmed by the Deputy Custodian General would in law prevent this land from being acquired or sold until those orders were set aside. (vi) Respondents 1 & 2 had themselves planted fruit trees since the Bagh Bahar had nto been sold by the department for the years 1949 to 1954 and the value of 156 fruit trees, 'which were assessed at less than Rs. 1,000.00, would show that plants were small and must have been planted by respondents 1 & 2 themselves. (vii) No disputed property could be acquired under section 12 of the Displaced Persons (Compensation and Rehabilitation) Act. (viii) After the grant of Bhumidari rights in the year 1951 the property went out of the evacuee pool and it could nto be acquired by the Central Government in 1956. (ix) Respondents 1 & 2 were even till the date of that order in possession of the lands as Bhumidars.

(10) It is contended by the petitioners that the Deputy Custodian General committed several errors which were patent; still a revision petition filed to the Central Government was rejected on 19th January, 1962 (copy is Annexure 6 to the petition) on the ground that the Government saw no reason to interfere with the order of Shri Parshotam Sarup.

(11) The crucial question for. decision in the Civil Revision1 Petition is whether the respondents 1& 2 had obtained bhumidari rights in the years 1951. If this question is to be answered in the affirmative, no further question will arise for consideration. Naturally, thereforee, both sides concentrated heavily on this aspect of the matter; it is, thereforee, proper that I should address myself to this question to start with.

(12) It is necessary to notice at the outset the relevant provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act (I of 1951). By section 26-B (added by section 16 of U.P. Act Xvi of 1953, with retrospective effect from 1st July, 1952) the provisions of this Act, in their application to evacuee property, shall have effect subject to the modification in Schedule V. Schedule V was itself added by section 69 of U. P. Act Xx of 1954.

(13) Paragraph 4-B of Schedule V (added by Section 5 of the U.P. Ordinance Ii of 1957 and U.P. Act Xx of 1957 commencing on 1st July, 1957) reads as follows :

'(1)Any person recorded as occupier of any evacuee land in the Khasra for the year 1363 Fasli and where no such record has been prepared in that year, in the khasra or khatauni which was last prepared may pay to the Custodian before 31st day of December, 1957, or such further date as the State Government may, from time to time by notification in the Official Gazette, specify in this behalf, an amount equal to twenty times the rent computed at hereditary rates applicable to such land. (2) The amount paid under sub-paragraph (1) shall be credited by the Custodian to the account of the evacuee concerned. (3) Where the person liable to pay the amount under sub-paragraph (1)- (a) pays the same within the period allowed thereforee, he shall become a bhumidar of the land liable to pay the land revenue equal to one half of the rent computed at the hereditary rates applicable to the land; or (b) fails to pay the same within the period allowed thereforee, he shall forfeit all his rights, title and interest, if any, in the evacuee land and shall be liable to ejectment by the Custodian in the same manner as a lessee from the Custodian and all the provisions of the Administration of Evacuee Property Act, 1950, relating to ejectment shall apply to him accordingly provided no notice shall be issued after December 31, 1958. Explanationn-In 'this paragraph, 'evacuee land' means land which is evacuee property, etc.'

(14) The United Provinces Agricultural Tenants (Acquisition of Privileges) Act of 1949, which preceded the above Act 1 of 1951, entitled [by section 3 (e) of that Act] an 'occupier' also, among others named therein, to acquire the privileges contemplated under that Act. Sub-section (2) of section 18 of Act I of 1951 reads as follows:

'EVERYperson belonging to the class mentioned in section 3 or sub-section 2 of section 3A of the United Provinces Agricultural Tenants (Acquisition of Privileges) Act of 1949, who has been granted the declaration referred to in section 6 of the said Act in respect of any holding or share thereof shall, unless the declaration is subsequently set aside, be deemed to be the Bhumidar of the holding or the share in respect of which the declaration has been made and continues in force.'

(15) Under section 6 of the Agricultural Tenants (Acquisition of Privileges) Act of 1949, the Assistant Collector can grant the declaration which is prayed for under section 3 of the Act, the mode of application being provided for by section 5. Under sub-section (2) of section 6, if the Assistant Collector is, after examination, if any, under sub-section (1), satisfied that the applicant is prima fade entitled to the declaration and the amount deposited by him is nto less than ten times the rent payable by him in respect of his share in the holding, he shall grant the same, and in any case where the amount deposited is more than ten times the rent aforesaid, direct the excess to be refunded.

(16) Section 7 of the Act provided that upon the grant of a declaration under section 6, the applicant shall, with effect from the date of payment under section 3, or deposit under sub-section 4 of section 6, as the case may be, be entitled to the following privileges:-

'(A)The applicant shall, nto withstanding anything in the United Provinces Tenancy Act, 1939, nto be liable to ejectment in execution of any decree or order for ejectment of any decree for payment of any arrears of rent.'

(17) Section 129 of Act 1I of 1951 provides for three classes of tenants : (1) Bhumidar, (2) Sirdar, and (3) Asami.

(18) Under section 130 of Act I of 1951 every person belonging to any of the following classes shall be called a Bhumidar and shall have all the rights and be subject to all the liabilities conferred or imposed upon Bhumidars by or under this Act, viz. (a) every person who as a consequence of the acquisition of estate becomes a Bhumidar under section 18; (b) every person who acquires the rights of Bhumidar under or in accordance with the provisions of this Act.

(19) Under section 142 of the Act a Bhumidar shall, subject to the provisions of this Act, have the right to exclusive possession of all- land in respect of which he is a Bhumidar and to use it for any purpose whatever.

(20) Section 154 to 159 provide for restrictions on transfers, mortgages and leases by Bhumidars, though an exchange could be had with the permission of the Assistant Collector. We are nto concerned with these provisions in the instant case.

(21) On the 30th of November, 1956, the Central Government issued the following notification in the Gazette of India, dated the 8th December, 1956, at page 2101:

'SRO.2957:-Whereas the Central Government is of opinion that it is necessary to acquire certain evacuee properties in the State of Uttar Pradesh for a public purpose being a purpose connected with the relief and rehabilitation of displaced persons, including payment of compensation to such persons. Now, thereforee, in exercise of the powers conferred by subsection (1) of section 12 of the Displaced persons (Compensation and Rehabilitation Act, 1954 (44 of 1954), it is notified that the Central Government has decided to acquire, and hereby acquires the evacuee properties described in the schedule hereto annexed: The Schedule 1. Sir and Khudkasht rights of evacuees which have now become Bhumidari under the Uttar Pradesh Zamindari Abolition Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) and which have been retrieved and allotted on quasi-permanent basis and of which the allottees have obtained actual possession. (emphasis is added) 2. All exclusive groves and grove lands of evacuee intermediaries which are free from occupants or which have been retrieved and allotted to displaced persons on quasi-permanent basis and of which allottees have obtained actual possession except those groves which have already been acquired under notification Nos. S. III-3(4)/55, dated 23rd June, 1955, S. III-3(4)/55, dated 27th October, 1955, S. III-3(4)/55, dated 14th February, 1956, S. III-3(4)/55 dated 16th March, 1956, S. III-l(3)/55 (2)/56, dated 12th April, 1956, S. III-l(3)(2)/56, dated 27th June, 1956, S. III-1(3) (2)/56 dated 27th July, 1956.

(22) EXCEPTIONS-THE properties falling under any one or more of the following categories shall nto be covered by this notification. (1) Any property-

'(I)in respect of which proceedings are pending before any authority at the date of this notification under the Administration of Evacuee Property Act, 1950 (31 of 1950) in which the question at issue is whether the property is or is nto an evacuee property, or (ii) in respect of which the period of limitation fixed for filling an appeal or revision under the said Act for disputing the vesting of the property in the Custodian as Evacuee Property has nto expired. (2) Any such property in respect of which an application for the grant of a certificate under sub-section (1) of section 16 of the Administration of Evacuee Property Act, 1950 (31 of 1950) is pending at the date of this notification has nto expired; (3) Any such property which has been restored under section 16 of the Administration of Evacuee Property Act, 1950 (31 of 1950) or in respect of which an application under sub-section (2) of the section for its restoration is pending at the date of this Notification, or in respect of which a certificate under sub-section (1) of that section has been granted but no application under sub-section (2) of that section for its restoration has been made; (4) Any such property which before the date of this Notification has been transferred and the transfer is effective under section 40 of the Administration of Evacuee under that section; (5) Any such property which is a composite property within the meaning of the Evacuee Interest (Separation) Act, 1951, (64 of 1951); (6) Any such property in respect of which any proceedings are pending in a Civil Court wherein the question at issue is whether the property is evacuee property or not; (7) Any such property which at the date of this Notification is being treated or is being managed as a trust property for public purpose of a religious or charitable nature under sub-section (1) of section 11 of the Administration of Evacuee Property Act, 1950 (31 of 1950).'

(23) 'RETRIEVED' (vide para 1 of schedule) has been said to be 'to bring back'; 'make return'; 'recall' (vide Page 1940 of Websters Third New International Dictionary 1961 Edition).

(24) Shri Bhawani Lal, Learned counsel for respondents 1 & 2, contends, relying upon Annexure A. 1, that the Assistant Collector had declared the fields in question as those from which respondents 1 & 2 could nto be evicted by any order or decree of Court and that they will be entitled to the grant of Bhumidari rights on the coming into force of the Zamindari Abolition Act. The following further details were also given in Annexure A. 1 : Type of tenant: Maurosi. 1356 Fasli Khata Khatuni No. 126. 1356 Fasli Khata Khewat No. 1.

(25) The land revenue was said to be due from the date of Sanad. Annexure A.1 is dated 11th February, 1951.

(26) Annexure D is the Bhumidari certificate issued by the Assistant Custodian (A. C. J.) and Managing Officer Muzaffarnagar on 14th January, 1960 to respondents 1 & 2 after they deposited 20 times the hereditary rent, which they were ordered to deposit.

(27) It is contended that in these circumstances the Managing Officer illegally sold the plots in question on 25th March, 1957 to the petitioner. The plots in question had gone out of the hands of the Custodian; they vested in respondents 1 & 2 by reason of the said declaration (Annexure A. 1) which had nto been cancelled before the coming into force of the Displaced Persons (Compensation and Rehabilitation) Act of 1954.

(28) Shri Dalal, for the petitioner, on the other hand relied upon a decision of the Revenue Board, reported in Parmeshwar Tewari v. Ram Charitra (1954 Revenue Decisions) which held that under section 18 of Act 1 of 1951, Bhumidari rights could only be claimed by a person who was either in possession on the date immediately proceeding the date of vesting as a Sir or khud kasht holder and that a mere trespasser cannto claim the benefit of this section. This decision was prior nto only to 4B of Schedule V, which was added only later (by means of U. P. Ordinance Ii of 1957 and U. P. Act Xx of 1957 commencing on 1st July, 1957), but also the decision of the Supreme Court in Amba Prasad v. Mohaboob Ah : [1964]7SCR800 .

(29) Even though the word 'occupier' has nto been defined in Act 1of 1951, his Lordship Mr. Justice Hidayatullah (as his Lordship was then) held the expression must mean a person holding the land in possession; between a proprietor and a tenant, a tenant; between a tenant and his sub-tenant, the sub-tenant. No proof is required about who is in possession: what is required is merely the entry of a person's name in the Khasra or Khatauni of the required Fasli. His Lordship's observations, on page 58 column 1of the above decision are very helpful in the instant case:-

'The word 'occupant' thus signifies occupancy and enjoyment Mediate possession (except where the immediate possessor holds on behalf of the mediate possessor) is of no consequence. In this way even persons who get into occupation when lands were abandoned get recognition. The section eliminates enquiries into disputed possession by accepting the record in the Khasra or khatauni or 1356 F, or its correction before 1952. It was perhaps thought that all such disputes would have solved themselves in the four years between June 30, 1948 and June 30, 1952.'

(30) Thus, the recording of a person as an occupant was all that was needed, the statute did nto require anything more. To this extent the previous decision of the Allahabad Law Journal that in order to come within the expression 'occupier' under section 3 (1) of the U. P. Agriculture Tenants (Acquisition of Privileges) Act, 1949, he must be a person in possession as well as must be recorded as such in the record of rights for 1356 Fasli and that unless both these conditions are fulfillled he could nto claim to be an 'occupier' is no longer good law.

(31) The view of Shri Parshotam Sarup, Deputy Chief Settlement Commissioner that the order of acquisition under the notification of 1956 made after the grant of Bhumidari rights in the year 1951, was nullity cannot, thereforee, be held to be incorrect. The mere fact that Annexure A. 1 stated that respondents 1 & 2 would be entitled to Bhumidari rights on the coming into force of Act 1 of 1951, an Act which had been passed on that date, cannto whittle down the effect of the declaration which the Assistant Collector had made, as he was entitled to do under section 6 of the Agricultural Tenants (Acquisition of Privileges) Act 1949. Nor would the fact that the sanad was granted in 1960 (after respondents 1 & 2 paid the twenty times the hereditary rent, as ordered) mean that the rights which were declared in 1951 were postponed or that they came into existence only for the first time in 1960; that would completely nullify the effect of the declaration granted under section 6 of the Agricultural Tenants (Acquisition of Privileges) Act 1949 by the Assistant Collector.

(32) In the order (Annexure B) of Shri O. P. Gupta, Assistant Custodian (Judicial) dated the 17th September, 1957, by which respondents 1 & 2 were treated as unauthorised occupants (the Sanad obtained by them was observed to be 'illegal') they were held entitled to acquire Bhumidari rights on payment of twenty times of hereditary rate on the basis of their names appearing in the papers for Fash 1363. The contention of respondents 1 and 2 that they were in possession from an earlier period (relying on the report of the Ziledar dated 1st February, 1954), that the plots were being used for cultivation purposes since 1353 was nto accepted because there was no support for this from the revenue papers. The above said observations of His Lordship Mr. Justice Hidayatullah are apposite in this context: no enquiry as to who is in possession is contemplated; the revenue record bearing the entry is alone sufficient. In dismissing the revision preferred by respondents 1 and 2 against the said order of the Assistant Custodian (Judicial) dated the 17th September, 1957, the Deputy Custodian General also observed (Annexure C) that respondents 1 & 2 had to pay twenty times hereditary rent on the basis of the entry in the records of 1363-F. These two officers who proceeded on the footing that they (respondents 1 & 2) were unauthorised occupants conceded that their occupation was recorded in the revenue records. The only question these two officers had to determine was whether the respondents 1 & 2 were authorised or unauthorised occupants, on the basis of which they pay ten or twenty times, as the case may be. Any further observation concerning the validity of the Sanad, was nto even one within their competence. The petitioner cannot, thereforee, seek to derive any support from the observation of the Assistant Custodian (Judicial) in his order that the Sanad was invalid. On the other hand, what is material for our present purpose would be the following observations made by him concerning the state of the revenue records showing the possession of respondents 1 & 2:-

'SHRIAnta, respondent 2, is recorded in all the village papers. The name of L. Ram Chander Dass, respondent 1, was entered by the order of the Tehsildar Kirana. It is nto understood as to how the name of Ram Chander Dass appeared in the village papers. A perusal of 1359-F Khata shows that the period of possession against plto No. 2214 is 5 years while in respect of other plots it is three years under Zaman 10 bila lagan. The extract of village papers filed by the Enquiry Inspector reveals that the evacuees had khud kasht rights. His name is entered in 1355 papers, with six years and four years possession. In 1357-F the name of Shri Anta and Ramchander Dass appeared in Part 1 of the Khatauni.'

(33) I have quoted from the above order to show that concerning the possession of respondents 1 & 2, whether considered authorised or unauthorised, there could be no doubt at all of their having been recorded as occupants at the relevant time. This gave them a right to apply under section 6 of Agricultural Tenants (Acquisition of Privileges) Act of 1949 and the declaration obtained by them gave them a vested Bhurnidari right under the Act of 1951.

(34) The Bhumidari rights which they thus gto were fully protected by the adding of Schedule V to the Act of 1951 vis-a-vis evacuee property. Paragraph 4B of the Schedule refers to such amounts for fasli 1363. That was held amply made out in the instant case. The sale by the Managing Officer to the petitioner was, thereforee, a nullity.

(35) Once this position is reached there is nothing else to consider and the writ application must fail for this reason alone.

(36) But for the sake of completeness I shall also deal with the further contention of the petitioner that the properties in question were grove lands. Shri Dalal referred me to the order of Shri Parshotam Sarup (Deputy Chief Settlement Commissioner) as containing a few errors on this aspect of the matter. Shri Dalal stated that Shri Parshotam Sarup wrongly thought that the respondent 1 & 2 had planted the trees, overlooking the fact that the trees had been valued at Rs. 3,000.00 (not, less than Rs. 1,000.00 as mistakenly considered by Shri Parshotam Sarup on which an argument was built that the trees must have been young ones and hence were planted by respondents 1 & 2) Shri Dalal also referred to the mistaken notion of Shri Parshotam Sarup that Bagh Bahar was nto collected from the property (as it should have been if the trees were old and yielding) during the years 1948 to 1954 by the Department. Shri Singhal (Assistant Settlement Commissioner) whose order was set aside by Shri Parshotam Sarup, held that the plots in question were a grove, that the Department had sold Bagh Bahar and that respondents 1 & 2 had nto planted the trees. thereforee, on this question, which is one of fact, both the officers had differed. It is nto permissible to go into this disputed question of fact in this writ application. But even assuming there was an error, it was of no consequence since the question related to whether the plots in question were treated as agricultural property or not. On this important question, Shri Parshotam Sarup also referred to the fact that the Assistant Custodian (J) had rightly held them to be agricultural plots and this position could nto be altered merely by reason of the further finding (regarding the nature of the plots) of the Assistant Custodian(J) that respondents 1 & 2 were unauthorised occupants.

(37) One of the reasons given by Shri Singhal (Assistant Settlement Commissioner (for holding that the sale by the Managing Officer to the petitioner was invalid was that no declaration had taken place in favor of respondents 1 & 2 [Shri Singhal did nto even refer to he relevant provisions of Ordinance 1 of 1949 and referred (wrongly) to section 7 of the Evacuee Property Act.] It was seen that the declaration was granted by the Assistant Collector under section 6 of the Agricultural Tenants Acquisition of Privileges Act of 1949. Shri Singhal suffered from a total misconception of the true position; what is more curious is that Shri Parshotam Sarup, in allowing the revision against Shri Singhal's order, also did nto refer to this aspect of the matter. This is, as already pointed out by me, the crux of the matter: what is the effect of the declaration granted by the Assistant Collector in favor of respondents 1 & 2 The above discussion shows they became entitled to Bhumidari rights by virtue of that declaration (Annexure A. 1) though the Assistant Collector had observed that they would, on the coming into force of the Zamindari Abolition Act, be entitled to the grant of the Bhumidari rights.

(38) The question can be looked at in another way also. After the addition of Schedule V to Act 1 of 1951 (Section 130 of that Act) respondents 1 & 2 are seen to have become entitled to Bhumidari rights, even in 1951, by reading the relevant provisions of Act 1 of 1951 and Agricultural Tenants (Acquisition of Privileges) Act 1949. It is nto as if Bhumidari rights accrued to respondents 1 & 2 only for the first time, after the certificate granted in 1960 (Annexure D). It follows, for this very reason, that the Managing Officer's sale to the petitioner was nto legal and could nto convey the plots in question in which respondents had Bhumidari rights, even earlier as aforesaid.

(39) In the above view the petitioner cannto rely on the conclusive nature of the Custodian General notifying the property as evacuee property. It is nto disputed in this case that the property in question was, to start with, the evacuee property of Mohd. Ashraf, who left for Pakistan. The question is whether the respondents 1 & 2 acquired Bhumidari rights in such (evacuee) property by reason of the relevant statutory provisions discussed above. Some of the orders passed in this case have suffered from a certain amount of confusion by reason of this distinction nto being kept in view; the same confusion also crept into the arguments before me. There can be no difficulty whatever in answering the question raised in this writ petition against the petitioner once the true nature and scope of Act 1 of 1951 and the Agricultural Tenants (Acquisition of Privileges) Act 1949 (which preceded Act 1 of 1951) are understood.

(40) In the result, this writ application is dismissed, but in the circumstances without costs.


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