Rajes Kumar - (1.) BY means of the present writ petition, petitioner is challenging the order of the Additional Commissioner (J), Moradabad dated 25.8.2008 passed in Revision No. 76/2007-2008, under Section 333 of U.P.Z.A. and L. R. Act, Aneesa Khatoon v. State of U. P. and others, 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 alias 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 Zazir 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. It appears that Tehsildar has given a report dated 8.4.2002 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 176A (2) of U.P.Z.A. and L. R. Rules, (hereinafter referred to as "Rules"). Respondent No. 3 vide order dated 30.4.2002 accepted the report of Tehsildar and cancelled the lease and directed to enter the name of Gaon Sabha. It is claimed that during the pendency of the proceedings before Sub-Divisional Magistrate, Nazar Hasan died on 10.4.2002 leaving behind the petitioner as legal heirs. Nazar Ahmad was unmarried and was residing with the petitioner. Petitioner is the sister of Nazar Hasan. Feeling aggrieved by the order dated 30.4.2002 passed by Sub-Divisional Magistrate, petitioner filed Revision No. 782 of 2001-02 under Section 333 of U.P.Z.A. and L. R. Act (hereinafter referred to as "Act"). Additional Commissioner vide order dated 16.9.2004 allowed the revision and set aside the order of Sub-Divisional Magistrate dated 30.4.2002 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 3.3.2005 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 under Section 333 of the Act, which has been dismissed by the impugned order. 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 under Section 132 of the Act on which no bhumidhari 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.
(3.) LEARNED counsel for the petitioner submitted that the petitioner has heridatory right over the land in view of the provisions of Section 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 Nazar Ahmad was recorded as asami in 1360 fasli and on the death of Nazar Ahmad, the name of his son Nazar Hasan was recorded as asami, which is clear from the khatauni of the year 1415-1420 fasli, Annexure-12 to the writ petition. He submitted that the lease is not for any specific period, therefore, the provision of Rule 176A of the Rules does not apply and as per the provision of Section 171 (2) (i) being the married sister of Nazar Hasan, the petitioner is entitled to inherit the right of Nazar Hasan over the land in dispute and be treated as asami. He further submitted that Parganadhikari has passed the order without giving the opportunity of hearing to the petitioner. Learned standing counsel submitted that the impugned order has been passed after giving opportunity of hearing. Therefore, it is wrong to say that the order has been passed without giving opportunity of hearing. He submitted that there is no evidence on record and as per own admission of learned counsel for the petitioner the lease was not for any specified period, it means that asami lease was on year-to-year basis. He further submitted that in view of the proviso to Rule 176A of the Rules, the asami lease should not be for more than five years, after its amendment in the year 1975. Therefore, the asami lease could not continue for more than five years. Since the five years had expired, the lease could not be extended and even under Section 176 (2) of the Act, it could not be determined in favour of the petitioner. Therefore, the question of inheritance of the lease hold right by the petitioner does not arise.;