Decided on March 22,1965

Anis Ahmad And Others Appellant
State of U.P. and others Respondents

Referred Judgements :-



M.G. Desai, C.J. - (1.)THE Petitioners claimed to be sirdars of plot No. 132, area 58 acres, on a portion of which there stand houses and a mosque. Proceedings under Section 211 A for their ejectment from this land were started before opposite party No. 4, described (erroneously) as Tahsildar. They appeared before him and objected to their being ejected from the land on several grounds. The opposite party rejected all the grounds and passed an order for their ejectment. It appears that the order of ejectment has not yet been executed. Under Section 211 (6) they had a right to institute a suit to establish the right claimed by them but they have not instituted such a suit; instead they filed this petition for the quashing of the order of the opposite party.
(2.)ONE ground for the quashing of the order is that the opposite party is a Tahsildar and not Collector within the meaning of Section 211 -A and reliance is placed upon a decision of this Court in Paras Nath Singh v. The State of Uttar Pradesh (1) (1960 AWR 327) decided by one of us. What was held in that case is that a Tehsildar does not become an Assistant Collector, First Class, merely because the powers of an Assistant Collector, First Glass, are conferred upon him and that the powers of Collector can be conferred only upon an Assistant Collector, First Class, and not upon any other authority. The opposite party is a Tahsildar but we find that under notification No. 3736. (2)/l -A -414.53, dated June 6, 1953, all Tehsildars have been appointed ex officio Assistant Collectors, First Class, under Section 15 of the UP Land Revenue Act read with Section 221. The Tehsildars have not merely been invested with the powers of Assistant Collector, First Class, they have been appointed as Assistant Collectors, First Class. Consequently, the opposite party is an Assistant Collector, First Class, and not a mere Tehsildar and what was said in the case of Paras Nath Singh (1) does not hold good. It appears that this notification was not brought to the notice of the Court at the time when that case was decided. The opposite party, being an Assistant Collector, I Class, could be invested with the powers of Collector.
It is not disputed that all Assistant Collectors, First Class, had been invested with Collector's powers. Therefore, the opposite party was competent to pass the impugned order.

Another ground is that there is no "land" and this ground is based upon the act that a mosque and houses stand upon a portion of plot. No. 132.

What has been found by the Collector is that the plot was held by the Petitioners for cultivation and that consequently, it is "land". The Petitioner's own case is that they were sirdars and they could not be sirdars unless the plot was "land." Further, the Petitioners claim to have acquired Bhumidhari rights and they could not have acquired Bhumidhari rights except over "land". Therefore, it cannot be disputed that the plot is "land" with in the meaning of Zamindari Abolition and land Reforms Act. It is immaterial that on a portion of it stand a mosque and houses.

(3.)WE find no merit in the claim of the Petitioners that they have now become bhumidhars. While these proceedings were pending the Petitioners deposited ten times the rent payable by them as sirdars and obtained an order from a Tehsildar to the effect that they were entitled to become bhumidhars but they never actually obtained the certificate referred to in Section 137. It is clear from the language of Sub -section (1) and (2) of Section 137 that a sirdar becomes a bhumidhar only upon the grant of the certificate: he becomes a bhumidhar with retrospective effect from the date of his depositing ten times the rent but he becomes so upon the grant of the certificate. If by a certain date no certificate has been granted, he is not a Bhumidhar on that date even though he may be entitled to the certificate and to be bhumidhar with effect from a prior date What happened in the instant case is that after the Petitioners obtained a routine order that they were entitled to the certificate, the Tehsildar realised that it had been obtained during the pendency of the proceedings under Section 211 A and quashed that order and refused to grant the certificate.
We are not concerned with the question whether he had jurisdiction to quash the order and to refuse the certificate; it is enough for our purpose that he did not grant the certificate. As the Petitioners never got the certificate they never became bhumidhars.


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