Rights of Bhumidhar with Transferable Rights

Dr. Nand Kishor

Associate Professor
Law
University of Lucknow
Lucknow

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Content Creator Name Dr. Nand Kishor

Stream Name Law

Subject Name Land Law

Topic Name Rights of Bhumidhar with Transferable Rights

Course (Class) LL.B 3 year

Year/Semester 5th semester

No. of Pages 9

University Name University of Lucknow

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 Rights of Bhumidhar with Transferable Rights
Amongst the three tenure-holders bhumidhar with transferable rights superior
most. His right in the holdings is transferable permanent and heritable. A
bhumidhar with transferable rights posses the following rights.
Use of Land: -
A bhumidhar with transferable rights has the right to the exclusive possession of
land and may use it for any purpose whatsoever (Section 142(1), as amended by
the U.P. Land Laws amendment Act 1986 (Section 79 in Board of Revenue
Code 2006). The expression “for any purposes whatsoever means a may use his
holding not only for purposes connected with agriculture, horticulture or animal
husbandry but also for other purposes. He may build a permanent house in his
holding. He may start an educational institution on his land or convert his land
into a playground, or stadium. He may a dig a tank for bathing purposes. He
may keep his land vacant. Bhumidhar right to keep his holding vacant is
absolute so far as 121�2 acres’ of land concerned e.g., If a bhumidhar keeps his
10 acres of land as vacant for a eight year, and no disability can be incurred by
him. He cannot be ejected from his holding. His holding cannot be treated as
abandoned neither the collector nor the Land Management Committeecan let his
vacant holding.
Restrictions: -
(i) Use of land more than 12𝟏𝟏�𝟐𝟐acres for purposes of agriculture, etc.
Sections 187-A of the UPZA and LR Act empowers the Collector to land
belonging to bhumidhar which exceeds 121�2 acres and which has not been for
three consecutive years immediately preceding for a purpose connected with
agriculture and agricultural related activities. Before letting such land Collector
shall issue a show cause notice to the tenure holder why the land be not let out
for the purpose of agriculture to any person. Tenure holder after appearing
before Collector to satisfy him that the said land was used for agriculture and
agriculture related activities or he had sufficient cause for not using it in
agriculture related activities. Collector after satisfaction shall discharge the
notice. Tenure holder after their promises to the collector from the date of
service of notice shall use the land with agriculture related activities or obtain a
declaration u/s 143 of the Act. Then collector shall postpone the order to a date
of six months after the date of service of said notice. If the land has been used
for agriculture, etc within six month then Collector shall discharge the notice .
If the tenure holder doesn’t appear in the fixed date or appear but does not
satisfy the Collector for not using the land in relation to agriculture and
agricultural activities or promises to use the land for the purpose of agriculture
etc. but doesn’t use the land for abovementioned purpose within six months and
also not declaration under section 143 of act. Then Collector can let out the land
to any person for a maximum period of nine years (Rule 171-A (2)). Such
person shall be called asami and deemed to be admitted by the tenure holder
personally (Section 187-A(5)). Instead of himself letting out the land the
collector may direct the Land Management Committee to do so sec 187-A(6))
Section 187-A was added in the land in 1954 as a consequence grow more
food campaign. The object of enacting this section is to prevent continued
negligence or non -user of certain lands by empowering the Collector to let it
out to others for agriculture purposes .
(ii) No right to appropriate minerals: A bhumidhar with transferable right has
no right to appropriate minerals existing on his bhumidhari land. The word
“mineral” primarily means something which grows in or is dugout of mine. In
other words any ingredient in the earth crust, more specially a body of destitute
of organism, but with definite chemical composition, and naturally exists within
the earth or its surface. Hence even brick-clay are sand may have regarded as
mineral. [Laddoumal v. The state of Bihar, AIR ,1965 Pat 491; Banarsi Das
Chandra & bros V Lt. Governor, Delhi AIR.1978 SC ,1857 Hundraj V addl.
district magistrate, AIR,1980 cal.3]
Mines and minerals under the act have been vested in the state. only the usufruct
of land is vested in the tenure holder the corpus is vested in the state. In sharma
and Co. state of U.P (AIR 1975 All .386); this decision has been affirmed by
the Division bench in Sharma & Co v. state of U. P. (1979 AWC 473), the
petitioners were manufactures bricks escavating earth from out of their own
bhumidhar plots. they were asked to pay royalty at the rate of Rs. 1.5 per
thousands of bricks manufactured. the notice were served under the U.P Mines
and Minerals (concession) Rules 1963, made under the Mines and Minerals
(regulations and development) Act ,1957 (Central Act).
Justice yashoda Nandan held that petitioners have no right to remove brick earth
from their bhumidhar property for the purpose of manufacturing brick in
disregard of the Rules and Notification issued their under. Section 142 simply
gives right to bhumidhar as tenure holders to exclusive possessions of all land
respect of which they are bhumidhars and to use it for any purpose whatsoever.
It doesn’t give right to bhumidhar to use up the land forming subject matter of
bhumidhar. The ownership of the corpus remains with the State and bhumidhar
are entitled to use it as tenure holders.
In Bhagwan Das v State of Uttar Pradesh (AIR 1976 SC 1393), the appellant is
the owner of certain bhumidhar lands adjoining out on the Yamuna river in the
district Allahabad. The lands are submerged in the river water when the river
water is in flood when the flood recedes, large quantities of sand, gravels,
boulders and bajris and deposited on the surface of the lands. Mines and
minerals department of State Government looks steps in 1970 to sell by action
the right to revenue the sand, gravel and bajris deposited on the land of
appellant.
In October, 1971 the appellant filled a writ protection in the Allahabad High
Court to restrain the state government from bringing the fluvial deposited to sale
by auction or otherwise the High Court dismissed the write petition and hold
that the fluvial deposits vest in the state government,
Thereupon the appellant came in appeal to the Supreme Court the appellant
contended that since he is the owner of the lands or is otherwise entitled to
appropriate the deposits to exclusive right in the U.P state. The Supreme Court
did not accept the contention and hold that the appellant was entitled to the
compensation only which are provided under Rule 67 of the Mines and Minerals
Rules,1963 for the deprivation of such user.The Supreme .Court observed that
the appellant cannot undertake any mining operation, even on the lands now
belonging to him for the purpose of winning these mines or minerals except
under a lease or permit granted by State Government. The rights of former
zamindars to mines and minerals was extinguished by the UPZA and LR Act,
1950, and became vested in the State Government. So long as the proprietry
right to the lands was vested in the Zamindar.He was entitled to mines and
minerals but due to abolition of Zamindari that right was not passed to the
appellant but to the State Government. Thus appellant's writ petition filed to
restrain the State Government from auctioning the right to undertake mining
operation must therefore fail.
It was urged that the sand and grand are deposited on the surface of the land and
not under the surface of the soil and therefore they cannot be minerals and
equally so, any operation by which they are collected or gathered cannot
properly be called mining operations .In any case the definition of minining
operations and "minor minerals" in Section 3 of the Act of 1957 and Rule 2 of
Rules of 1963 show that minerals need not sub terranean and that the minning
operations cover every operation undertaken for the purpose of wining any
minor mineral.
2. Right to get Declaration (Sec 143) where a bhumidhar a transferable rights
uses his holding or part thereof for a purpose not connected with agriculture and
agricultural activities then the Assistant Collector in charge of the sub-division
may suo motu or an application, make a declaration to that effect (u/s143(1), as
amended by U.P land laws amendment Act 1986) . When the proceedings have
been started by the Assistant Collector in Charge of the sub- division on his own
motion then he shall issue notice to bhumidhar concerned or he shall give him
an opportunity of being heard before making such declaration vide Rule 1352
whereas on the application of bhumidhar concerned the Assistant Collector in-
charge of the sub-division causes enquiry being made through Tehsildar or any
officer not below the rank of a supervisor kanungo, for the purpose of satisfying
himself that bhumidhar s holding or part thereof is really being used for
purpose not connected with agriculture and agriculture related activities .The
enquiry shall be made on the spot. On the receipt of the report of the Tahsildar if
Assistant Collector in -charge of the sub- division is satisfied that the said land
has not been used purposes connected with agriculture etc. he shall make a
declaration to that effect (rule 135(1)).
After the grant of declaration under section 143 of the act (section 80 of U.P.
Revenue code 2006) the succession to the land shall be devolved by the personal
law to which he is subject he can transfer such land in any manner.
The provision of this section do not lay any restriction on such bhumidhar right
to use land. Bhumidhar may use his land for industrial of residential purpose or
not connected or residential purposes or not connected with agricultures etc.
In Alauddin v Hamid khan (AIR.1971 All 348 ;1971 A.L.J 367), case Alauddin
was a bhumidhar of a plot in a dispute. A portion of it was under cultivation and
in other portion he had certain thatched constructions which had let out to the
defendant Hamid khan at an annual rent of Rs 126. The defendant fail to pay the
rent for a period of three years, hence the suit ejectment and arrears of rent. On
behalf of defendant it was contended that he became Sirdar under section 165 of
the act and the plaintiff’s right is extinguished. The Allahabad High Court
accepted the contention of the defendant. The bhumidhar continues to be
governed by the provisions of the up ZA and LR act until he is not getting any
declaration under section 143 of the act. Then he should use his land for the
purposes connected with agriculture etc. Consequently it was held that the
plaintiff’s right is extinguished from the disputed land and the defendant became
sirdar (Bhumidhar with non- transferable right). The right to get declaration for
use the use of land for industrial residential or non-agricultural purposes etc. is
available to the bhumidhar with transferable rights only and not sirdar. Once a
bhumidhar with transferable rights executes a lease in contravention of section
156 of the act 1951 which make lease void and land will be deemed vested in
favour of state government being free form all liability and bhumidhar shall lost
his tenancy right and further declaration obtained under section 143 from
competent authority shall not confirm any right as held in U .P. State Sugar
corporation ltd. Lucknow v Vinod Chand gupta (2007(102) R.D .824)
In Ratna Sugar Mills v state of Uttar Pradesh (AIR 1966 all 34.) Ratna Sugar
mills co. shahganj (jaunpur) acquired 277 acres of land for the industrial
purpose before the zamindari abolition. On the abolitions of zamindari of the
mills became Sridhar due to financial difficulties the land remained vacant and
it was never used for industrial purposes.
The Ratna sugar Mills gave an application to get declaration under section 143.
The assistant collector in- charge of the sub- division after making an enquiry,
rejected the application on the ground that it was not the bhumidhari land of the
applicant. When the case came to high court, the high court confirmed the order
of the assistant collector or in- charge of the sub division and held that when a
land is land even it if it is not used for the purposes of an agriculture and
agriculture related activities. It only ceased to be land when a declaration is
obtained under section 143 of UPZA and LR ACT. The declaration is only
available to bhumidhar and not to a Sirdar. In appeal the supreme court
confirmed the decision of the High Court (Ratna Sugar Mills V State of Uttar
Pradesh, AIR ,1976 S.C 1742).
There is no specific form of declaration required under the act and rule 135 also
not required particular form of declaration. The main thing is that the land being
used for such purpose. On the spot and if report submitted by lekhpal of the
village indicating that land to being utilized for abadi; the purpose of the section
on 143 becomes complete as held in the case of Seedheswari promoters and
builders Pvt ltd. V state of U.P. and others (2009 (108) R. D. 709).
In Raghubir Singh V sub divisional officers and others (1966 A.L.J 96:1966
R.D 203) for grant of declaration a bhumidhar applied to the assistant collector
in- charge of the sub division (S.D.O) under section 143 of the act. On enquiry
the assistant collector in- charge of the sub division granted the application by a
single word order “allowed”.
S.C Manchanda, J., of the Allahabad high court held that the declaration
contemplated by this section has been made.
Until and unless the declaration under section 143 is not made to take the land
out of definition of section 3(1) of the Act, the same will be treated that
bhumidhari right is continuously in operation. This view was taken up by the
board of revenue in the case of ram nath v state of U.P.(1996 R.D., 256). The
declaration of abadi in relation to bhumidhari land can be done by the competent
authority under section 143(Siddiqui Ahmad v. Harish chandra, 1998 R.D 84
(HINDI)(BOARD)).
The appeal of Smt.Satya Biri v Mahaveer Singh and others (2008(5) R.D. 120,
D.B.) was dismissed by the Division bench on the reason that appellant had
challenged the order where by additional civil judge rejected the interim
injection application of plaintiff /appellant to stop the construction on
agricultural land. The Division bench of the high court held that since land in
dispute was agriculture land and without necessary conversion of land from
competent authority under section 143 of the act ,1950 construction was raised
illegally, hence no relief could be granted to the appellant .
If a person purchases the agriculture land with intention to construct the house
/factory or petrol pump and covered the land through boundary and plantation
was done to its surrounding area. Then such land cannot be treated as
agricultural land under section 143 of the ACT. The Hon’ble high court
considered the illegalities committed by the revenue authorities and set aside
with findings that the land is out of purview of the agricultural purposes under
section 143 of the act(Shobhit Gupta v Commissioner Moradabad Division
Moradabad 2013 (118) R.D 795).
The main question was placed before the Hon’ble high court by the petitioner
(Surendra Singh v state of UP 2015 (126) R D 13) whether if any construction
of house has already been done on the part of agricultural land without seeking
declaration from tahsildar under section 143 of the act what would be the effect
of such construction? It was held that the competent authority could pass the
order exercising his powers suo moto to the extent of declaration of land under
section 143 and rest of the land will be treated as agricultural land(2015 (126) R.
D. 13).
Registration of the declaration – A copy of every declaration made shall by
duly signed by the assistant collector in charge of sub division and bear the seal
of his court and contain the fallowing particulars.
(a) The section under which declaration has been granted.
(b) The number and area of plots in respect of which the declaration has been
granted.
(c) The land revenue of the said plots,
(d) The name of the village, pargana and tehsil in which the said plots are
situate.
(e) The name, parentage and residence of the bhumidhar in whose favour the
declaration has been granted.
The copy of declaration shall be forwarded by the Assistant Collector in charge
of the sub Division to the sub-registrar concerned through the district registrar.
The sub-registrar shall register the same free of cost and return the copy with
his endorsement thereupon to the effect that it has been duly registered. The
endorsement shall bear the signature of the sub-registrar and shall contain the
fallowing particulars.
(i) The date of registration
(ii) The number of misilband register in which the declaration has been
registered.

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