ABDUL SAEED Vs. STATE OF U P

JUDGEMENT

(1.) THIS is a writ petition against the orders of the ioint Director, the Deputy Director, and the Settlement Officer in proceedings under Sections 9 and 10 of the U. P. Consolidation of Holdings Act (after its amendment in 1958). The petitioners are sons of a man called Abdul Hamid, who is alleged to have let the land in dispute to Abdul Rahman, the father of opposite parties 5 to 9, in 1363 F. It appears that in previous proceedings under Section 202 of the U. P. Z. A. and L. R. Act it was held that Abdul Hamid was not a disabled person, but an appeal had been filed from that decision. During the pendency of that appeal from the order of a Judicial Officer, dated 12-6-1961, the consolidation operations started so that the same question came up for adjudication before the consolidation authorities.

(2.) THE Consolidation Officer had allowed the petitioners' objection under Section 9 of the Act and held them to be sirdars. He held that. Abdul Hamid was a disabled person within the meaning of Section 157 (1) (d) of the U. P. Z. A. and L. R Act which describes the disabled person as follows: "A person incapable of cultivating by reason of blindness or other physical infirmity". The evidence relied upon by the Consolidation Officer was oral evidence produced by the petitioners and a certificate of a Civil Surgeon given on 27-9-1943. The Civil Surgeon was not traceable, and, therefore, could not be produced in evidence. The certificate, although proved by other evidence, could not be supported by the statement of the Civil Surgeon for this reason. In appeal from the order of the Consolidation Officer, the Settlement Officer gave the following finding: "In view of the ruling of the Board cited above. Sri Abdul Hamid was definitely not a disabled person as defined in Z. A. and L. R. Act. Even Mukhram D W 2 has stated that Sri Abdul Hamid was a lean, thin, and tall man and was a patient of Asthma. He has stated that he never did any cultivation nor any hard work nor was capable of the same Even t aking for granted this fact, none of the witnesses examined by the respondents prove that Sri Abdul Hamid was not in a position to supervise his cultivation. The Settlement Officer having set aside the order of the Consolidation Officer, the petitioners went up in second appeal to the Deputy Director of Consolidation. The Deputy Director of Consolidation rejected the petitioners' second appeal on 30-8-1962 on the ground that the petitioners had not proved that Abdul Hamid was unfit to supervise the tilling of the land by hired labour or servants. This view had been maintained in spite of the revision application of the petitioners which was dismissed by the Joint Director on 2-2-1963.

(3.) IT appears to me to be absolutely clear that the words used in Section 157(1) (d) of U. P. Z. A and L. R. Act cannot be so stretched as to require a physical infirmity which disables a person from even supervising cultivation. The idea underlying the provision is that the per-son who is physically infirm must be incapable of cultivating and not incapa-ble of supervising. Cultivation and its supervisions are not identical. Different words are used to express the two ideas. Even if cultivation includes supervision, it necessitates more than mere supervision. Cultivation involves use of physical strength and also attention, and is, therefore, more comprehensive than supervision of it. If a person is so infirm as to be incapable of using his own strength for cultivating land, he would bp entitled to the benefit of the provisions even though he may be physically able to employ the strength of others and to supervise cultivation. Reasons for this view are very fully discussed by the Division Bench with which I concur. I need not, therefore, elaborate the point.