Allahabad High Court
Babu Lal And Others vs State Of U.P. And Others on 3 March, 2020
Equivalent citations: AIRONLINE 2020 ALL 520
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 20.2.2020 Delivered on 03.03.2020 Court No. - 30 Case :- WRIT - C No. - 26944 of 2008 Petitioner :- Babu Lal And Others Respondent :- State of U.P. and Others Counsel for Petitioner :- L.P. Singh Counsel for Respondent :- C.S.C.,Arvind Srivastava,Salman Ahmad Connected with Case :- WRIT - C No. - 33222 of 2008 Petitioner :- Pratap Srivas And Others Respondent :- State of U.P. and Others Counsel for Petitioner :- L.P. Singh Counsel for Respondent :- C.S.C. And Case :- WRIT - C No. - 34855 of 2008 Petitioner :- Ghasi Ram Respondent :- State of U.P. and Others Counsel for Petitioner :- L.P. Singh Counsel for Respondent :- C.S.C. And Case :- WRIT - C No. - 36008 of 2008 Petitioner :- Gyani And Others Respondent :- State of U.P. and Others Counsel for Petitioner :- L.P. Singh Counsel for Respondent :- C.S.C. And Case :- WRIT - C No. - 29511 of 2009 Petitioner :- Ghana Ram Respondent :- State of U.P. and Others Counsel for Petitioner :- L.P. Singh Counsel for Respondent :- C.S.C. Hon'ble Pankaj Bhatia,J.
The present petitions have been filed challenging the order dated 8.5.2008 (Annexure-1), whereby the leases granted to the petitioners under the Uttar Pradesh Bhoodan Yagna Act, 1952, has been cancelled in exercise of powers under Section 15-A of the said Act.
The facts of all the writ petitions are the same, however, the facts in Writ-C No. 26944 of 2008 are being considered and decided as a leading case.
The brief facts, giving rise to the present petition, are as under:-
The petitioners before this Court are Scheduled Castes, Scheduled Tribes and only the petitioner no. 18 belongs to General Category, they all being landless agricultural labourers were allotted Plot No. 2495/25 of different areas from the period 24.5.1982 to 7.6.1982 by the Bhoodan Yagna Sub Committee, Orai, copies of the said allotment lease have been collectively marked as Annexure-2. In terms of the said allotment, the petitioners continue to be in occupation of the properties, allotted to them. It is further alleged that consolidation operation was carried out in the village Dakore and in respect of the petitioners, one Dr. Ram Sewak Niranjan, Sanyojak, filed his objections challenging the allotments made by the earlier Sanyojak Dhani Ram, however the said proceedings culminated in a settlement and the names of the petitioners were mutated over the properties in question. Several ancillary proceedings took place, however the same are not subject matter of the present petitions.
This Court had called for the records pertaining to the allotments, which are subject matter of the present petitions, a perusal of the record shows that the Commissioner, Jhansi issued directions on 17.1.2003 for investigation relating to the allotments made in favour of the petitioners, in pursuance whereof, an investigation was carried out. A perusal of the said report reveals that detailed investigations were carried out and the conclusion drawn was as under:-
"In respect of 44 leases, mutation was carried out in respect of 28 leases by the Consolidation Officer and for the rest 16, the mutation was carried out and it was recorded that at the time of the allotment, the directions under Section 14 were not carried out. It was further recorded that in terms of the provisions of Section 14 (4-A) at least 50% of the allotments should have been done in favour of Scheduled Castes persons and thus it was recommended that the same were liable to be quashed. Curiously, in the said report, itself it was mentioned that the original file was not available on record, as such it could not be said conclusively as to which Sanyojak executed the leases in respect of 21 allottees."
The record further reveals that specific detailed reply was submitted to the show cause notices served upon the petitioners, wherein it was specifically requested that a copy of the reports, which are proposed to be relied upon, should be supplied to the petitioners. It was further pleaded that any report although can be a ground for initiating action, a full-fledged enquiry should be conducted while passing the orders under Section 15-A of the Act. The copies of the reports were never supplied to the petitioners, as the same were held to be confidential.
In the supplementary counter affidavit filed by the State, yet another report dated 6th February, 2003 has been relied upon, which indicates that in respect of 21 persons, the original file is not available, however as the mutation is based only upon Form No. 23, whereas there is no inscription in Form No. 45, which makes it clear that the mutation must have been carried out in back date.
Based upon the said two reports dated 6th February, 2003 as well as the report in pursuance to the directions dated 17.1.2003, show cause notices were served upon the petitioners, which are available on the record, as produced by the Standing Counsel. The show cause notice alleged that the Collector was satisfied with the report dated 6.2.2003 and was of the view that the agricultural leases granted by the Bhoodan Yagna Committee on 26.5.1983 were irregular and illegal and were granted without following the instructions issued under Section 14 of the Act and, thus, the petitioners were called upon to show cause as to why the leases granted on 26.5.1982 may not be set aside. The show cause notice, from record, reveals was issued on 6.2.2003. In the said show cause notices there were no allegations with regards to the eligibility of the petitioners for allotment.
The petitioners filed their joint objections to the show cause notice, denying the allegations referred and also took a ground that general objections of non-compliance of Section 14 were made without there being any specific ground indicated in the show cause notice recording the error in allotment, thus the show cause notices were vague. It was also stated that the petitioners are in occupation of the land since the last 21 years and thus the show cause notice are liable to be dropped. In support of their objections, the petitioners filed the copy of Government Order No. 4381 dated 13.7.1953, copy of the order of Board of Revenue dated 14.11.1959, copy of judgment and order dated 13.3.1987 in case no. 76 to 117, 285, 286 under section 9(a) (2) of U.P. C.H. Act, copy of order of Consolidation Officer Camp at Orai in case No. 142 to 148, Hari Ram Versus Bhoodan Yagna Samiti dated 22.8.1989, copy of order dated 17.9.1998, passed by Board of Revenue accepting the reference no. 64/1995-96, Munsukh Lal and others Versus Baladin and others; photocopy of the stay order passed by Hon'ble High Court in Writ Petition No. 20796/2003, Mansukh Versus Deputy Director of Consolidation and others and copies of khatauni and khasra. Specific request was made to provide copies of the report, which were denied to be provided holding that the same were confidential and a specific defence was taken that in fact 50% of the land was allotted to the persons of the Scheduled Castes and in this respect a list of allottees showing that 50% of allottees were persons of Scheduled Castes was also annexed, which was marked as Exhibit ''Ka'.
The hearing, in respect of the proceedings initiated, were conducted on 8.10.2007 and vide order dated 21.5.2008, an order was passed cancelling the allotment in favour of the petitioners and directions were issued for evicting the petitioners and vesting the property in favour of the State. Further directions were also issued for allotment of the lands in favour of the eligible persons, the said order dated 8.5.2008 has been challenged in the present petitions.
Heard counsel for the petitioners Sri L.P. Singh and Standing Counsel for the State of U.P. An impleadment application has also been filed by the persons claiming themselves to be the subsequent allottees, they are represented by Sri Arvind Srivastava, Advocate.
Counsel for the petitioners Shri L.P. Singh has argued that the order passed are wholly arbitrary and illegal for the following reasons:-
(i) The show cause notice was vague and there was no allegation as to what illegality was committed while granting leases.
(ii) Although Section 15-A confers the power of cancellation on the Collector, and no limitation is prescribed, the said power cannot be exercised by the Collector, after the expiry of reasonable period, whereas in the present case the proceedings have been initiated after about 21 years and the orders have been passed after about 27 years which cannot be termed as reasonable period and thus are liable to be quashed on that count also.
(iii) In terms of the reports, which are the basis for initiation of proceedings, no proceedings could have been initiated, as the same were never provided to the petitioners stating it to be confidential, and because those very reports record that the original files are missing.
The Standing Counsel, on the other hand, argues that the allotments have been rightly cancelled, as the same were done in contravention of the directions under Section 14 of the Act. He further stressed that in terms of Section 14, 50% of the allotments had to be done in favour of persons of Scheduled Castes and Scheduled Tribes and thus the entire allotments were wholly arbitrary and illegal. Reliance in this regard was placed on the provisions of Section 14 (4) (a).
Relevant statutory provisions of the Bhoodan Act being Sections 14 and 15-A are quoted hereinbelow:-
"14. Grant of land to landless persons. - (1) The Committee or such other authority or person as the Committee with the approval of the State Government, specify either generally or in respect of any area, may, in the manner prescribed, grant lands which have vested in it to the landless agricultural labourers, and the grantee of the land shall-
(i) where the land is situate in any state which has vested in the State Government under and in accordance with section 4 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, acquire in such land the right and the liabilities of a bhumidhar with non-transferable rights, and
(ii) where it is situate in any other area, acquire therein such rights and liabilities and subject to such conditions, restrictions and limitations as may be prescribed and they shall have effect of any law to the contrary notwithstanding.
(2) Where the committee or other authority or person as aforesaid fails to grant any land in accordance with sub-section (1) within a period of three years from the date of vesting of such land in the committee or from the date of commencement of the Uttar Pradesh Bhoodan Yagna (Amendment) Act, 1975, whichever is later, the Collector may himself grant such land to the landless agricultural labourers in the manner prescribed, and thereupon the grantee shall acquire the rights and liabilities mentioned in sub-section (1) as if the grant were made by the committee itself.
(3) [* * *] (4) In making grant of land under this section, the committee or other authority or person as aforesaid or the Collector, as the case may be, shall observe the following principles:
(a) At least fifty per cent of the land available for grant shall be granted to persons belonging to the Scheduled Castes, Scheduled Tribes and persons belonging to the Kol, Pathari, Khairwar, Baiga, Dharikar, Panika and Gond Tribes and such other tribes as the State Government on the recommendation of the Committee may notify in this behalf;
(b) The land situate in one village shall, as far as possible, be granted to persons residing in that very village.
Explanation. - For the purposes of this section, the expression "landless agricultural labourer" means a person whose main source of livelihood is agricultural labour or cultivation and who at the relevant time either holds no land or holds lands not exceeding 0.40468564 hectares (one acre) in Uttar Pradesh as a bhumidhar, asami or Government lessee.
15. Grants to be made in accordance with Bhoodan Yagna Scheme. - All grants shall be made as far as may be, in accordance with the scheme of Bhoodan Yagna.
15-A. Cancellation of certain grants. - (1) The Collector may of his own motion and shall on the report of the committee or on the application of any person aggrieved by the grant of any land made under Section 14, whether before or after the commencement of the Uttar Pradesh Bhoodan Yagna (Amendment) Act, 1975, inquire into such grant, and if he is satisfied that the grant was irregular or was obtained by the grantee by misrepresentation or fraud, he may:
(i) cancel the grant, and on such cancellation, notwithstanding anything contained in Section 14 or in any other law for the time being in force, the rights, title and interest of the grantee or any person claiming through him in such land shall cease, and the land shall revert to the committee; and
(ii) direct delivery of possession of such land to the committee after ejectment of every person holding or retaining possession thereof, and may for that purpose use or cause to be used such force as may be necessary.
(2) Notice of every proceeding under sub-section (1) shall be given to the committee, and any representation made by the committee in relation thereto shall be taken into consideration by the Collector.
(3) No order shall be passed under sub-section (1) except after giving an opportunity of being heard to the grantee or any person known to the Collector to be claiming under him.
(4) The order of the Collector passed under sub-section (1) shall be final and conclusive."
On the basis of the pleadings exchanged, perusal of the record produced by the Standing Counsel and the arguments advanced, the first question to be decided is whether the power under Section 15-A of the said Act can be exercised at any time, when there is no limitation prescribed under the Act itself, moreso, when there is no allegation of fraud or forgery in allotment.
Counsel for the petitioners has placed reliance on the judgment of the Supreme Court in the case of Joint Collector Ranga Reddy District and another v. D. Narsing Rao and others, (2015) 3 SCC 695 and judgment of this Court in the case of Smt. Shakuntala and 25 others v. State of U.P.; 2019(5) AWC 5007 All.
In the case of Smt. Shankutala and 25 Others (Supra), this Court was considering the power of cancellation of leases under Section 198(4) of the U.P. Z.A. & L.R. Act and a specific argument was raised that where no limitation is prescribed, the action for cancellation can be taken at any point of time. This Court on the basis of the pleading exchanged, framed four questions. Question No. (D) framed by the Court is as under:-
"(d) Whether in the case of fraud an action can be taken for cancellation of the lease without any period of limitation?"
This Court answering the said question relying on the judgment of Joint Collector Ranga Reddy District and another v. D. Narsing Rao and others (Supra) recorded as under:-
"The last question is to be considered whether no limitation is applicable where the allegations of fraud exists. I have already held in foregoing paras that the allegations of fraud were not existent. However, even if the allegations of fraud are existent the question to be considered is whether any limitation period is applicable or not. The Hon'ble Supreme Court considered the said question in the case of Joint Collector Ranga Reddy District and another vs. D. Narsing Rao and others, 2015 3 SCC 695 and held as under:
"25. The legal position is fairly well-settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power, revisional or otherwise, such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference in so far as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period.
31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.
32. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant-State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed."
Thus even the Supreme Court has held that even in the cases of fraud the action should be taken within a reasonable time. In the present case, the action has been taken after a period of 12 years which cannot be termed as reasonable time and thus I hold that even in the cases of fraud action has to be taken within the period of limitation."
In the facts of the present case, even as per the show cause notices, the leases were granted on 26.5.1982 and the show cause notice was issued on 6.2.2003 i.e. after more than 20 years. There is no pleading or material on record as to on what date the alleged irregularity in allotment was discovered. Following the judgment of the Apex Court in the case of Joint Collector, Ranga Reddy (Supra) and Smt. Shakuntala (Supra), I have no hesitation in holding that the initiation of proceedings was well beyond the period, which can be termed as reasonable. Thus, the order dated 8.5.2008 is liable to be set aside on that count alone.
Coming to the perversity of the impugned order and the perversity in the decision making process, it is clear from perusal of the record that a specific request was made for providing copy of the reports, proposed to be relied upon against the petitioners, as they were not supplied to the petitioners on the ground that the same were confidential documents. The specific defence of the petitioners that in fact 50% of the allottees were persons of Scheduled Castes and a list was also annexed along with their defence has not even been considered while passing the orders impugned. The order impugned is based upon the two reports, which were never supplied to the petitioners and were not even based upon the inspection of original files. Thus, on all these counts, the orders impugned are wholly perverse and liable to be set aside.
I am also not inclined to accept the submission of the Standing Counsel that merely because 50% of the land was not allotted to the persons belonging to the Scheduled Castes in consonance with the mandate of Section 14 (4) (a), the allotments are liable to be set aside for the following reasons:-
Although on a plain reading of Sub Section 4 (a) of Section 14 it is clear that it prescribes for allotment of at least 50% of the land in favour of the persons belonging to the Scheduled Castes and persons belonging to Kol, Pathari, Khairwar, Baiga, Dharikar, Panika and Gond Tribes and such other tribes as the State Government on the recommendation of the Committee may notify in this behalf. To attract the mischief of Section 14 (4) (a) there has to be specific allegation as to how much land was available for grant and how much was granted to the persons specified in Clause (a) of Section 4 (4). There is nothing on record to demonstrate as to what was the extent of land available for allotment before the Committee, which had allotted the lands and how much part of the said land was allotted to the persons specified in Sub Section (4) (a) of Section 14 and how much was allotted to the persons, who are not specified in Sub Section 4 (a) of Section 14 and thus there was no material on record to come to a conclusion that the allotment was not carried out in consonance with the mandate of Section 14 (4) (a). In fact the list of allottees relied upon by the petitioners was not even considered while passing impugned order.
The other important aspect to be considered is the show cause notice issued in the present cases, which only alleged that the allotments did not follow the mandate of Section 14, without there being any specific averments, as to which part of Section 14 was not observed while allotment. A show cause notice serves the purpose of putting the noticee on guard in respect of the allegations levelled in the show cause notice. A valid show cause notice must explain and allege specifically the charge, on which the action is proposed and only then the noticee can be expected to give a reply. The scope of a valid show cause notice has been explained by the Supreme Court in the case of Oryx Fisheries (P) Ltd. v. Union of India, (2010) 13 SCC 427, in the following terms:-
"27. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defense and prove his innocence. It is obvious that at that stage the authority issuing the charge-sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony.
31. It is of course true that the show cause notice cannot be read hypertechnically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on a reasonable reading of a show cause notice a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impregnable wall of prejudged opinion, such a show cause notice does not commence a fair procedure..."
The present show cause notice is entirely vague and no prudent person could be expected to give a reply to such a vague show cause notice and thus the proceedings initiated and culminated on the basis of a vague show cause notice, are liable to be quashed.
For all the reasons, recorded above, the order dated 8.5.2008 are set aside, with further directions that the names of the allottees or their heirs shall be mutated over the revenue records. Needless to add that the allotments made in respect of the said lands, after passing of the order dated 8.5.2008, cannot have any effect.
The writ petitions are allowed in terms of the said order.
The original records are being returned to Shri Mohd. Naushad Siddiqui, Standing Counsel.
Order Date :- 03.03.2020 SR