Case: RAKESH  Vs. BOARD OF REVENUE U.P.

and 131 of the principal Act, the following sections shall be substituted, namely:-- 130. Bhumidhar with transferable rights.--Every person belonging to any of the following classes, not being a person referred to in section 131, shall be called a bhumidhar with transferable rights, and shall have all the rights and be subject to all the liabilities conferred or imposed upon such bhumidhars by or under this Act, namely— (a) every person who was a bhumidhar immediately before the date of commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1977; (b) every person who, immediately before the said date, was a sirdar referred to in clause (a) or clause (c) of section 131, as it stood immediately before the said date; (c) every person who in any other manner acquires on or after the said date the rights of such a bhumidhar under or in accordance with the provisions of this Act. 131. Bhumidhar with non-transferable rights.--Every person belonging to any of the following classes shall be called a bhumidhar with non-transferable rights, and shall have all the rights and be subject to all the liabilities conferred or imposed upon such bhumidhars by or under this Act, namely- - (a) every person admitted as a sirdar of any land under section 195 before the date of commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1977, or as a bhumidhar with non-transferable rights under the said section on or after the said date; (b) every person who in any other manner acquires on or after the said date, the rights of such a bhumidhar under or in accordance with the provisions of this Act; (c) every person who is, or has been allotted any land under the provisions of the Uttar Pradesh Bhoodan Yagna Act, 1952. 15. Section 134 was omitted by the Uttar Pradesh Land Laws (Amendment) Act, 1977. The effect of the provision was that by statute, Bhumidhari right was conferred on Sirdar, w.e.f., 28.01.1977, the date of issue of U.P. Ordinance No.1 of 1977, which was subsequently enacted as an Act, namely, U.P. Land Laws (Amendment) Act, 1977, which was deemed to have come into effect on 28.01.1977, the date of issuance of Ordinance. 16. The most important provision, which needs to be noticed in the Uttar Pradesh Land Laws (Amendment) Act, 1977 is Section 73, which dealt with transitory provisions, which is as follows:- Section 73: Transitory provisions (1) Notwithstanding anything contained in any other law for the time being in force all proceedings for acquisition of bhumidhari rights under sections 134 and 135 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as they stood immediately before January 28, 1977 and all proceedings arising therefrom, pending on such date before any court or authority shall abate. (2) Where any proceeding has abated under sub-section (1) the amount deposited for the acquisition of such rights shall be refunded to the person depositing the same or to his legal representatives as the case may be. 17. Section 73(1) provides that all proceedings for acquisition of bhumidhari rights under sections 134 and 135 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as they stood immediately before 28.01.1977 and all proceedings arising therefrom, pending on such date before any court or authority shall abate. 18. The revision against the order dated 23.05.1975 was pending against the rejection of grant of Bhumidhari Sanad, which stood abated by virtue of Ordinance No.1 of 1977, as has been noted by the High Court in its judgment. The most important provision is Section 73(2), which provides that where any proceeding has abated under sub-section (1) the amount deposited for the acquisition of such rights shall be refunded to the person depositing the same or to his legal representatives as the case may be. 19. Thus, sub-section (2) of Section 73 of U.P.Act No.8 of 1977 contemplated that all proceedings pertaining to grant of Bhumidhari Sanad shall be abated and amount deposited shall be refunded to the person applying or the legal representative. The consequence of the said provision is that the revision, which was filed by Pursottam stood abated and the amount so deposited was to be refunded to his legal representative. The claim of Pursottam to get Bhumidari rights on the basis of his application dated 25.11.1974 with regard to Plot Nos. 243 and 503, thus, stood terminated by virtue of provisions of Section 73 as extracted above. In view of provisions of Section 73 as extracted above, the claim of Pursottam to get Bhumidhari rights on the basis of his application dated 25.11.1974 stood negated. Hence, on the basis of the pendency of revision, no benefit can be taken by Pursottam and High Court erred in law in holding that by Ordinance No.1 of 1977, Pursottam had also got benefited retrospectively. 20. By statutory provision, i.e. Section 73, all pending applications and proceedings were abated and grant of Bhumidhari rights was contemplated under Sections 130 and 131, which was sought to be inserted by U.P. Ordinance No.1 of 1977. The benefit of a statutory provision shall be applicable to those Sirdars, who were Sirdars on the date when Ordinance was enforced, which subsequently became an Act. On 28.01.1977, Pursottam was already dead and his legal heirs were mutated in his place, thus, benefit of Ordinance No.1 of 1977 and the U.P. Act No. 8 of 1977 cannot be availed by Pursottam, so as to validate his sale deed dated 26.11.1974 with regard to Plot Nos. 243 and 503. High Court, thus, committed error in allowing the writ petition filed by the contesting respondent and decreeing the Suit No. 30 of 1978. 21. The writ petition filed by respondent No.3 questioning the decision of Courts below with regard to Suit No.30 of 1978 was not liable to be allowed by the High Court. All the Courts below including the Board of Revenue had taken correct view with regard to Suit No.30 of 1978 filed by the respondent.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. The High Court in its impugned judgment has taken the view that insofar as Suit No. 31 of 1978 filed by respondent was concerned, Bhumidhari Sanad was granted in favour of Pursottam (deceased), although, after his death but the said Sanad will have retrospective effect making Pursottam Bhumidhar w.e.f. 25.11.1974, hence no error was committed by decreeing Suit No.31 of 1978. Coming to Suit No. 30 of 1978, filed by the respondent, High Court took the view that in view of the fact that Pursottam had challenged the rejection of the application, which was subjudice when the proceedings were abated on account of Ordinance No.1 of 1977, the legal heirs of Pursottam cannot contend contrary to the interest of Pursottam. The High Court also relied on Section 43 of the Transfer of Property Act in upholding the claim of the respondent11. The submission that before grant of Sanad, the applicant had died was also considered by this Court in paragraph No.9 and it was held that the certificate will have a retrospective effect. The view of the High Court was disapproved and suit was held to be entitled to be decreed.12. In view of law as laid down above, the judgment of Allahabad High Court in Ram Sabodh(Supra) cannot help the appellant. The judgment of this Court in Deo Nandan and Another (supra) fully covers the claim of the plaintiff-respondent with regard to Suit No. 31 of 1978 relating to Plot No.521, with regard to which Sanad was granted after death of Pursottam. We are of the view that Additional Commissioner, Board of Revenue and High Court committed no error in decreeing Suit No.31 of 197813. Now, we come to the claim of the plaintiff- respondent with regard to Plot Nos. 243 and 503 in Suit No.30 of 1978. The facts reveal that with regard to aforesaid plots, although application was made on 25.11.1974 by depositing the 20 times amount of the land revenue, but the application was rejected on 23.05.1975 by the Assistant Collector. A revision was filed by Pursottam challenging the said order, which was pending at the time when U.P. Ordinance No.1 of 1977 was issued abating the proceedings. High Court has noted that the claim of Pursottam to grant of Bhumidhari Sanad was subjudice in revision, when the proceedings were abated. It was further observed that legal heirs, who were brought on the record on the revision, due to death of Pursottam, were competent to represent the estate of deceased and cannot setup any claim adverse to the interest of the deceased. High Court observed that had Pursottam not died, he would have acquired the status of Bhumidhar under Ordinance No.1 of 1977 and since he had already executed the sale deed after depositing 20 times land revenue, it would have related back to the date when he made the application and deposited the amount14. We may first notice the provisions of U.P. Ordinance No.1 of 1977, which has been referred to by the High Court and which are relevant in the facts of the present case. We have noticed above that under Section 134 read with Section 137, a Sirdar after depositing 20 times of land revenue and making an application could obtain Bhumidhari Sanad.15. Section 134 was omitted by the Uttar Pradesh Land Laws (Amendment) Act, 1977. The effect of the provision was that by statute, Bhumidhari right was conferred on Sirdar, w.e.f., 28.01.1977, the date of issue of U.P. Ordinance No.1 of 1977, which was subsequently enacted as an Act, namely, U.P. Land Laws (Amendment) Act, 1977, which was deemed to have come into effect on 28.01.1977, the date of issuance of Ordinance17. Section 73(1) provides that all proceedings for acquisition of bhumidhari rights under sections 134 and 135 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as they stood immediately before 28.01.1977 and all proceedings arising therefrom, pending on such date before any court or authority shall abate18. The revision against the order dated 23.05.1975 was pending against the rejection of grant of Bhumidhari Sanad, which stood abated by virtue of Ordinance No.1 of 1977, as has been noted by the High Court in its judgment. The most important provision is Section 73(2), which provides that where any proceeding has abated under sub-section (1) the amount deposited for the acquisition of such rights shall be refunded to the person depositing the same or to his legal representatives as the case may be19. Thus, sub-section (2) of Section 73 of U.P.Act No.8 of 1977 contemplated that all proceedings pertaining to grant of Bhumidhari Sanad shall be abated and amount deposited shall be refunded to the person applying or the legal representative. The consequence of the said provision is that the revision, which was filed by Pursottam stood abated and the amount so deposited was to be refunded to his legal representative. The claim of Pursottam to get Bhumidari rights on the basis of his application dated 25.11.1974 with regard to Plot Nos. 243 and 503, thus, stood terminated by virtue of provisions of Section 73 as extracted above. In view of provisions of Section 73 as extracted above, the claim of Pursottam to get Bhumidhari rights on the basis of his application dated 25.11.1974 stood negated. Hence, on the basis of the pendency of revision, no benefit can be taken by Pursottam and High Court erred in law in holding that by Ordinance No.1 of 1977, Pursottam had also got benefited retrospectively20. By statutory provision, i.e. Section 73, all pending applications and proceedings were abated and grant of Bhumidhari rights was contemplated under Sections 130 and 131, which was sought to be inserted by U.P. Ordinance No.1 of 1977. The benefit of a statutory provision shall be applicable to those Sirdars, who were Sirdars on the date when Ordinance was enforced, which subsequently became an Act. On 28.01.1977, Pursottam was already dead and his legal heirs were mutated in his place, thus, benefit of Ordinance No.1 of 1977 and the U.P. Act No. 8 of 1977 cannot be availed by Pursottam, so as to validate his sale deed dated 26.11.1974 with regard to Plot Nos. 243 and 503. High Court, thus, committed error in allowing the writ petition filed by the contesting respondent and decreeing the Suit No. 30 of 197821. The writ petition filed by respondent No.3 questioning the decision of Courts below with regard to Suit No.30 of 1978 was not liable to be allowed by the High Court. All the Courts below including the Board of Revenue had taken correct view with regard to Suit No.30 of 1978 filed by the respondent.