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AMITY LAW SCHOOL NOIDA TOPIC
Class Of Tenure Holder Under UPZA & LR Act, 1950 along !t" T"e!r Res#ect!$e R!g"ts
Submitted To :Submitted By :Ms. RANJANA DUBE DUBEY Y NABI Faculty-L aculty-LAND AND LAW Bcom.LLB(h)!th s"m
SITWAT SITWA T
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ACKNOWLEDGMENT I take this opportunity to express my profound gratitude and deep regards to my faculty Ms Ranjana Dubey for her exemplary guidance, monitoring and constant encouragement throughout the course of this thesis. The blessing, help and guidance given by her time to time shall carry me a long ay in the journey of life on hich I am about to embark.
I%TROUCTIO%
Uttar Prades" Za'!ndar! A(ol!t!on Act and Land Refor's Act 1950
The class of tenure holders under the said act are as follows:1. )"oo'!dars : these are the highest type of tenure holder . They have permanent and transferable and heritable rights . Bhoomidars are any intermediary in respect of khudkast and sirland. These are grove land holders and fixed rate tenant . Even small intermediary who belong to the disabled class in respect of his sirland also belong to the category of bhoomidars . ent free and hereditary or occupancy tenant of sirland that is pattadawari and pattaistamarari also fall under the category of bhoomidars. !. Asa'!: They are the permanent heritable tenant holder. ". *!rdal: These are the heritable tenant holders. There rights are not permanent or transferable. #ccupancy tenant and hereditary tenant of sirland fall under the category of sirdal. $. Ad!$as!: This class of tenant holders inferior to sirdal and superior to asami .
%fter amendment under &ttar 'radesh land laws amendment act 1())-)* there were three classes of tenant holders i.e - 1 1. )"oo'!dars !t" transfera(le r!g"ts : This class of tenant holders was the most superior one and had exclusive rights over the land and can use his land for any purpose and even if the land was not being used for agriculture purpose it could be converted by declaration from collector or tehseeldar .
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!. )"oo'!dars !t" non/transfera(le r!g"ts : This class of tenant holders had permanent and heritable rights. ". Asa'!: This class of tenant holder only had heritable rights .
R!g"ts reta!ned (. !nter'ed!ar!es -
1. !. ". $.
+ultivating rights. To work on existing mines. Easement and similar rights. To recover arrears of rent .
O(ect/
1. %bolition of ,amindari system !. %cuisition of rights ". eform the laws related to land revenue Conse2uences of $est!ng/
1. !. ". $.
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%ll rights titles and interests of all ,amindars shall cease to exist ights of talaudars shall also be extinguished ights related to rent shall cease %rrears of revenue and government dues i. %rrears of land revenue ceases ii. %rrears of agricultural income tax iii. & ' agricultural income tax act 1($* iv. %mount to be paid under section !) and section !* under &' encumbered estate act 1("$ v. %mount due under land improvement loans act 1**" vi. %mount due under agricultural loans act 1**$ %ttachment or sale 'ossessory mortgage 0uits and proceedings regarding ,amindari shall be stayed %ll mahals and pattis shall come to an end.
3a"ara *!ng" $s *tate Of Uttar Prades" & Ot"ers on %o$e'(er, 194
Two uestions have been referred to this ull Bench for decision. The circumstances in which the reference has been made are these: 2n 1(3 or early in 1(1 the petitioner4 who was the tenant-in-chief of a certain plot of land4 filed a suit under 0ection 1*34 &. '. Tenancy %ct4 1("(4 for the e5ectment of the third respondent on the ground that he was a trespasser. #n 11--1(14 the petitioner obtained a decree4 and thereafter in execution of his decree he recovered possession of the plot. The third respondent appealed4 but before his appeal could be heard a vesting order to take effect from 1-)-1(!4 was made under 0ection $4 &. '. 6amindari %bolition and 7and eforms %ct4 1(3 which came into force on !/-1-1(1. The %ct abolished the ,amindari system and made far reaching changes in the system of land tenure. &nder 0ection !3 those persons who on the date immediately preceding the date of vesting4 that is on "3-/-1(!4 were 8inter alia8 recorded as occupants of any land in the khasra or khatauni of 1"/ asli were to be called 8adhivasis8 and were4 sub5ect to the provisions of the %ct4 entitled to take or retain possession of such land.The third respondent was so recorded as occupant of the plot in suit4 and on (--1("4 the +ommissioner allowed his appeal on the ground that under 0ection !3 he had become an adhivasi and as such was entitled to possession of the plot. The petitioner filed a second appeal to the Board of evenue which on !*-*-1("4 dismissed his appeal. The petitioner thereupon filed a petition in this +ourt under %rticle !!/ of the +onstitution in which he prayed that the order of the Board of evenue be uashed on the ground that it was vitiated by an error of law apparent on the face of the record. 9is contention was that the provisions of 0ection !3 of the %ct had no application to a pending suit or appeal and he relied on the case of -- 8Bikram 0ingh v. 0unehra84 %2 1($ %ll $"$ %; in which that view was taken. The Bench before whom this petition came for hearing was of opinion that the decision in Bikram 0ingh8s case %; reuired reconsideration4 and although that case was distinguishable on the facts from the case before it in as much as the suit in Bikram
0ingh8s case %; had been filed under 0ection 1) of the Tenancy %ct4 the 8ratio ! decidendi8 appeared to apply with no less force to a case in which the suit had been filed under 0ection 1*3 of that %ct. The Bench has therefore referred to this ull Bench the following uestions: i; ifficulties; #rder4 1(!4 would make any difference to applying the provisions of 0ection !3 to pending suits or appeals=? 0ection !3 of the 6amindari %bolition %ct confers upon the persons referred to therein the status of an adhivasi4 and it expressly provides that a person who has acuired that status shall be entitled4 sub5ect to the provisions of the %ct4 to take or retain possession of the land of which he 2s the tenant or sub-tenant or of which he was recorded as occupant. 0ection !"$ further provides that an adhivasi shall be liable to e5ectment from the land held by him only on one or more of the three grounds stated therein. The uestion to be determined is whether a defendant in a suit under 0ection 1*34 Tenancy %ct who has acuired the status of an adhivasi during the pendency of the suit or appeal can set up his right to possession as an answer to the plaintiff8s claim. 2n our opinion4 he is entitled to do so. 2t is no doubt a general rule that where the intention of the 7egislature is doubtful an enactment will not be construed so as to affect vested rights of action but the matter is one of construction4 and if upon a consideration of the enactment as a whole it is apparent that it was the intention of the legislature that the provisions of the %ct should be applicable to pending suits4 they will be so applied. The +ourt of %ppeal further held that assuming the 5udgment of the trial +ourt to have been correct according to law as it then stood4 the +ourt of %ppeal could grant to the tenant the relief to which he was entitled according to the law as it stood at the date upon which the appeal was heard. 2n the case before us the legislature4 as part of a radical scheme of land reform4 has conferred not only a new status upon certain persons but has vested those persons with rights which are $ "tt#+!nd!an6anoon-orgdoc47780
inconsistent with the continued exercise by other persons of rights which they formerly possessed. 'rior to "3-/-1(!4 the petitioner had a legal right to obtain an order for the e5ectment of the third respondent@ after that date the third respondent obtained prima facie a right to take or retain possession of the land from which the plaintiff sought to have been e5ected. 2n the first place the purpose of the 6amindari %bolition %ct4 as expressed in its preamble4 is to acuire the right4 title and interest of intermediaries between the tiller of the soil and the 0tate4 and to reform the law relating to land tenures. The %ct provides for the vesting of of proprietary rights in the 0tate4 and save where land-was in the personal cultivation of a 8thekadar8 the latter ceases to have any right to hold or possess such land. 2t creates new categories of tenure-holders4 8bhumidhars84 8sirdars8 and asarnis@ certain tenants of sir84 sub-tenants ?and occupants of land became 8adhivasis8. The whole pattern of land tenure has boon changed@ new rights have been created and old rights abolished. The &. '. 7and Tenures 7egal 'roceedings; emoval of >ifficulties; #rder was made for one purpose only4 as an aid to the transition from the old system to the new4 and we are of the view that the #rder must4 if possible4 be so construed as to be in harmony with the %ct under which it is made and not as an #rder which confers upon a plaintiff rights which have been taken from him or which deprives a defendant of the benefit of rights with which it has been invested. 2n other words4 we are of opinion4 that the proceedings to which clause !; of this #rder refers are to be decided in accordance with the provisions of the 7and evenue %ct or the Tenancy %ct4 as the case may be4 read with the provisions of the 6amindari %bolition %ct. inally a reference was made to 0ection !"! of the %ct which provides a procedure according to which an 8adhivasi8 may on application being made by him to the %ssistant +ollector be put in possession of the land of which he is the %dhivasi4 and it was contended that the fact that specific provision is made for restoration of possession to an %dhivasi shows that an %dhivasi is not entitled to set up his rights as such as a defence to a suit for e5ectment. The argument4 in our opinion4 is without force. % suit for e5ectment presupposes that the defendant is in possession--in which case 0ection !"! has no application -- and the fact that he may have lost possession as a result of the decree of the trial +ourt cannot mean that he has also lost his right of appeal. 2t is impossible to hold that one +ourt can find that the plaintiff is entitled to possession under 0ection 1*34 Tenancy %ct4 and another +ourt that the defendant is entitled to possession under 0ection !"!.
3an *!ng" $s Co''!ss!oner, )are!ll.
Brief facts necessary for deciding the present writ petition are@ that the respondent Ao. 4 Bhola was granted agricultural lease of plot Ao. 1"(*! area 3."$1 hectares. The respondent Ao. executed a sale deed in favour of the petitioner of the land in dispute. % report was submitted by the Aaib Tahsildar dated 1$.1!.!331 to the effect that the transfer was hit by 0ection 1)-%% of the &.'. 6amindari %bolition and 7and eforms %ct4 1(3 as the transfer of land was made without obtaining previous permission of the %ssistant +ollector. The 0ub >ivisional #fficer initiated proceedings under 0ection 1) of the &.'. 6amindari %bolition and 7and eforms %ct4 1(3 and while passing the order dated "3..!33! recorded a finding that neither ten years had expired from the date of being Bhumidhar with transferable rights nor permission for transfer provided under 0ection 1)-%% was obtained hence4 the land is vested in the 0tate. The petitioner filed an appeal which has been dismissed by the +ommissioner. 7earned +ounsel for the petitioner challenging the impugned orders4 contended that the respondent Ao. became Bhumidhar with transferable rights since 13 years period had expired from the grant of lease and further no permission was reuired since the transfer had been made on "3.(.!331 in favour of the petitioner who is also member of 0cheduled +aste. 7earned +ounsel for the petitioner contends that under 0ection 1)-%%4 the permission is reuired only when the transfer is made in favour of a person other than 0cheduled +aste. 9e further submits that since the transfer was made in favour of a person belonging to 0cheduled +aste4 no permission was reuired and the view of the courts below is incorrect. 7earned standing +ounsel contends that the land being lease land4 the permission of %ssistant +ollector was reuired under 0ection 1)-%%. 9e submits that there is no error in the impugned order and the writ petition is liable to be dismissed. The issue which has arisen in the writ petition is as to whether the transfer made under 0ection 1)%% by a lease holder who belongs to 0cheduled +aste in favour of a person who also belongs to 0cheduled +aste4 the permission of %ssistant +ollector is reuired or not. The submission of the learned +ounsel for the petitioner is that the permission is reuired only when transfer is made to a person other than a person of 0cheduled +aste. 7earned +ounsel for the petitioner referred to 0ub-clause 1; of 0ection 1)-%%. or appreciating the submission of learned
+ounsel for the petitioner4 it is necessary to look into the 0cheme of the %ct with regard to transfer under the &.'. 6amindari %bolition and 7and eforms %ct4 1(3. 0ection 1"1-B provides that Bhumidhar with non-transferable rights will become a bhumidhar with transferable rights after ten years. The restriction for transfer of land is contained under 0ection 1)-% and 1)-%%4 which are being uoted herein below: 1)-%. estrictions on transfer of land by members of 0cheduled +astes.- 1;
person referred to in +lause c; of the said sub-section if a person referred to in +lause c; is also not available then to a person referred to in +lause d; of the said sub-section in the same order of preference: a; first4 to the resident of the village where the land is situate@ b; secondly4 if no person referred to in +lause a; is available4 to the resident of any other village within the 'anchayat area comprising the village where the land is situate@ c; thirdly4 if no person referred to in +lause a; and b; is available4 to the resident of a village ad5oining the 'anchayat area comprising the village where the land is situate. 2f no person referred to in 0ub-section 1; belonging to a 0cheduled Tribe is available4 the land may be transferred to a person belonging to a 0cheduled +aste in the order of preference given in 0ub-sections i; and !;. Ao transfer under this section shall be made except with the previous approval of the %ssistant +ollector concerned. The provisions of 0ection 1)-% contains a restriction that no bhumidhar or asami belonging to a 0cheduled +aste shall have the right to transfer any land by way of sale4 gift4 mortgage or lease to a person not belonging to a 0cheduled +aste4 except with the previous approval of the +ollector. 0ection 1)%% provides that no person belonging to a 0cheduled +astes having become a Bhumidhar with transferable rights under 0ection 1"1-B shall have the right to transfer the land by way of sale4 gift4 mortgage or lease to a person other than a person belonging to a 0cheduled +aste and the same shall be in the order of preference as contained in 0ub-section 1; of 0ection 1)-%%. There is a clear distinction between the restrictions contained under 0ection 1)-% and 0ection 1)-%%. 0ection 1)-% provides that no bhumidhar or asami belonging to a 0cheduled +aste can transfer the land to a person not belonging to the 0cheduled +aste except with the previous approval of the +ollector whereas 0ection 1)-%% contains a clear restriction that a person belonging to 0cheduled +aste who have become bhumidhar with transferable rights under 0ection 1"1 -B shall have no right to transfer to any person other than person belonging to 0cheduled +aste. The transfer under 0ection 1)-%% is permissible only to a person belonging to 0cheduled +astes in the order of preference as prescribed in 0ub-section 1;. Thus4 0cheduled +aste cannot transfer the land in favour of a person not belonging to 0cheduled +aste in any contingency. urther4 this restriction is on reasonable basis since land which has been contemplated under 0ection 1)-%% is a land which is allotted to a person belonging to 0cheduled +aste. The restriction is more stringent
in this sub-section since the land is lease land and grant of agricultural lease is contemplated under the %ct for the specified ob5ect and purpose. Cuch emphasis has been laid down by learned +ounsel for the petitioner that 0ub-section 1; of 0ection 1)-%% will not apply when transfer is in favour of 0cheduled +aste. 0ubsection $; of 0ection 1)-%% contains an in5unction to the effect that no transfer under this section shall be made except with the previous approval of the %ssistant +ollector concerned. 0ub-section $; is in a very wide terms when it refers to ?transfer under this section?. This clearly means that it embraces itself all the transfers which are contemplated in 0ection 1)-%%. Thus4 even if the transfer is by a 0cheduled +aste in favour of a 0cheduled +aste4 it is fully covered by the restrictions contained under 0ub-section $; of 0ection 1)-%%. 2n case4 the interpretation as put by learned +ounsel for the petitioner to 0ub-section $; of 0ection 1)-%% is accepted4 then the restrictions put under this 0ub-section will be meaningless and redundant. There is valid reason for reuiring previous permission of the %ssistant +ollector. The reason which is deciphered from the scheme of section is4 that even the transfer by a Bhumidhar belonging to 0cheduled +aste to a person belonging to 0cheduled +aste shall be in accordance with the preference mentioned in 0ub-section 1;. % 0cheduled +aste who is bhumidhar with transferable right under 0ection 1"1-B has no free choice of transfer to any 0cheduled +aste of his own choice. The order of preference given under 0ubsection 1; has its own ob5ect and purpose. The ob5ect obviously is that if transfer is made4 the said transfer shall first go to landless agricultural labourer and thereafter to marginal farmer. The reason obviously is that the land being a lease land4 the rights of a lessee have to be regulated in a manner which may advance the ob5ect and purpose of the %ct. Thus4 the prior approval of the %ssistant +ollector is contemplated which is obviously to consider and decide as to whether permission can be accorded and the transfer which is sought4 is in accordance with the 0cheme of 0ub-section 1; of 0ection 1)-%%. 2f no permission is reuired for a land to be transferred by 0cheduled +aste to another 0cheduled +aste4 then there will be no stage of inuiry whether the transfer is in accordance with the preference given in 0ub-section 1;. 2n view of the foregoing discussions4 permission is also reuired when a transfer is made by a person belonging to 0cheduled +aste who has become bhumidhar with transferable right under 0ection 1"1-B in favour of a person belonging to 0cheduled +aste. 2n the present case4 the transfer was made without any such permission and the courts below have rightly taken the view that transfer is void and conseuences under 0ection 1/) of the %ct shall follow. 2n view of the aforesaid4 there is no error in the impugned orders which may warrant any
interference by this +ourt4 while exercising the 5urisdiction under %rticle !!/ of the +onstitution of 2ndia. The writ petition is dismissed. "
