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Mustaq Ali Khan Vs. Deputy Director of Consolidat [1995] INSC 767 (30 November 1995)

Ramaswamy, K.Ramaswamy, K.Majmudar S.B. (J)

CITATION: 1996 SCC (1) 708 JT 1995 (8) 602 1995 SCALE (6)769

ACT:

HEAD NOTE:

O R D E R

This appeal speaks of several events that have taken place during the pendency of the litigation. About 40.99 acres comprising of Plot Nos.63, 66, 96, 34, 53, 37 & 102 situated in Village Lakhimpur, Pargana Suar, in former Rampur State are the subject matter of this appeal. It is the claim of the appellant that his son is disabled Sirdar.

Consequently, he has sub-leased the properties to respondents 3 to 10. On his demise on October 21, 1954, the appellant - his father succeeded to the estate. He also is a disabled person. The U.P. Zamindari Abolition and Land Reforms Act, 1950 (for short 'the Act') was brought into force in the State of Rampur with effect from January 26, 1956. The respondents claimed the status as Adhivasis as they were cultivating the land and have Bhumiswami rights.

The appellant claimed the Asami right. The Assistant Settlement Officer by his proceedings dated September 30, 1963 negatived the claims of the appellant and held that the respondents became Adivasis under the Act. On appeal, the Assistant Settlement Officer held that the appellant is a disabled person and that, therefore, he became the asami. On revision, the Deputy Director (Consolidation) while holding that the appellant is a disabled person following the Judgment of the Allahabad High Court in Smt. Maya v. Raja Dulaji & Ors. [(1970) ALJ 476] held that the appellant is not entitled to the status as a disabled person. When the matter was carried in writ petition, the High Court following the Full Bench judgment in Maya's case upheld the order of the Deputy Consolidation Officer by his order in Writ Petition No.627/71 dated August 11, 1971. Leave has been granted by this Court. This appeal has come up for hearing.

So far as the legal position is concerned, it is now settled by the decision of this Court in Richpal v. Desh Raj reported in [(1982) 1 SCR 368]. At page 378, it is held that Shrimati Ram Kali was a disabled person on April 9, 1946, Dan Sahai (successor in-interest of Smt. Ram Kali) was also a disabled person, the land-holder on the date of vesting, who incidentally happened to be Dan Sahai, would be entitled to the benefit of s.21(10(h) and the respondents (successor of Uttam Singh and Murli Singh) would remain Asamis and cannot be said to have become Sirdars. It is also not in dispute that a later Bench of five Judges of the Allahabad High Court in Dwarika Singh v. Dy. Director of Consolidation [(1981) ALJ 484 ] had also taken the same view which was noted by this Court and approved of the correctness thereof.

It would thus be seen that a disabled person and a successor-in-interest who is also disabled is also Asami and, therefore, he is Sirdar.

The question is whether this is a fit case for our interference under Art.136 of the Constitution. It is not in dispute that the respondents have been in possession and enjoyment for over 45 years and claiming the status to be as Adivasis and thus entitled to claim Bhumidar rights under the Act. They are all small holders and they have been in possession and enjoyment and cultivating the land for their livelihood. Considered from this perspective, equity would be worked out. Accordingly, we direct the Dy. Director (Consolidation) to determine the prevailing market rate of the lands as on February 26, 1970, the date on which the Consolidation Officer has upheld the claim of the respondents as Adivasis. The respondents are directed to pay half of the market value to the appellant and on payment declare the respondents as Bhumidars and action accordingly be taken.

The appeal is accordingly disposed of. No costs.

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