Allahabad High Court
Smt. Reshma Devi vs The Commissioner And 2 Ors. on 9 January, 2014
Author: Ran Vijai Singh
Bench: Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Case :- WRIT - C No. - 1184 of 2014 Petitioner :- Smt. Reshma Devi Respondent :- The Commissioner And 2 Ors. Counsel for Petitioner :- A.P. Tewari,S.S. Tripathi Counsel for Respondent :- C.S.C.,Tariq Maqbool Khan Hon'ble Ran Vijai Singh,J.
Heard Sri Durgesh Pandey holding brief of Sri A.P.Tewari, learned counsel for the petitioner, learned Standing Counsel and Sri Tariq Maqbool Khan, learned counsel appearing for the Gaon Sabha.
This writ petition has been filed for issuing a writ of certiorari quashing the orders dated 23.11.2013 passed by the Commissioner, Gorakhpur Division, Gorakhpur in Revision No. 151/M-2013 (Smt. Reshma Vs. Collector, Maharajganj) and order dated 9.5.2013 passed by the Collector Maharajganj in Case No. 144/150.
Vide order dated 9.5.2013, the Collector, while exercising his power under Sub-Section 4 of Section 198 of U.P.Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the Act') in a suo motu proceeding, has cancelled the petitioner's allotment made under Section 122-B (4-F) of the Act on 31.1.1996 on the ground that the land in dispute is reserved for school and the benefit of Section 122-B (4-F) of the Act has wrongly been extended to the petitioner.
Aggrieved by this order, the petitioner has filed revision before the Commissioner, Gorakhpur Division Gorakhpur, which too has been dismissed.
The submission of learned counsel for the petitioner is three fold :- (i) With respect to the land settled under Section 122-B (4F), no proceeding under Sub-Section 4 of Section 198 could be initiated as the said provision is available only with respect of cancellation of lease.
(ii) The entire proceeding is barred by time in view of Sub-Section 6 of Section 198, which provides period of limitation for initiating the proceeding under Sub-Section 4 of Section 198 of the Act. In this case, allotment was made in the year 1996 to be more specific on 31.1.1996 and the proceeding for cancellation was initiated in the year 2011.
(iii) The impugned order is vitiated on account of non-compliance of Sub-Section 5 of Section 198 of the Act which requires that before cancelling the allotment, the allottees is to be noticed.
Learned Standing Counsel as well as counsel appearing for the Gaon Sabha state that they do not propose to file any counter affidavit and the writ petition may be decided on its own merit on the existing facts.
For appreciating the controversy in hand, it would be appropriate to go through the following provisions of the Act.
122-B (4-F) of U.P.Zamindari Abolition and Land Reforms Act, 1950:-
Notwithstanding anything in the foregoing sub-sections, where any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe is in occupation of any land vested in a Gaon Sabha under Section 117 (not being land mentioned in Section 132) having occupied it from before (May 13, 2007) and the land so occupied together with land, if any, held by him from before the said date as bhumidhar, sirdar or asami, does not exceed 1.26 hectares(3.125 acres), then no action under this section shall be taken by the Land Management Committee or the Collector against such labourer, and (he shall be admitted as bhumidhar with non-transferable rights of that land under Section 195 and it shall not be necessary for him to institute a suit for declaration of his rights as bhumihdar with non-transferable rights in that land).
Section 198 of U.P.Zamindari Abolition and Land Reforms Act, 1950:_(1) In the admission of persons to land as (bhumidhar with non-transferbale rights) or asami under Section 195 or Section 197 (hereinafter in this section referred to as allotment of land) the Land Management Committee shall, subject to any order made by a Court under Section 178 observe the following order of preference :
(2) [***] (3)[ The land that may be allotted under sub-section (1) shall not exceed---
(i) in the case of a person falling under Clause (c ) such area as together with the land held by him as bhumidhar [***] or asami immediately before the allotment would aggregate to 1.26 hectares (3.125 acres) ]
(ii) in any other case, an area of 1.26 hectares (3.125 acres) (4)The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land inquire in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular, he may cancel the allotment and the lease, if any.
[(4-A) [***] (5) No order for cancellation of an allotment or lease shall be made under sub-section (4), unless a notice to show cause is served on the person in whose favour the allotment or lease was made or on his legal representatives :
Provided that no such notice shall be necessary in proceedings for the cancellation of any allotment or lease where such proceedings were pending before the Collector of any other Court or authority on August 18, 1980.
(6) Every notice to show cause mentioned in sub-section (5) may be issued :-
(a) in the case of an allotment of land made before November 10, 1980, (hereinafter referred to as the said date), before the expiry of a period of (seven years) from the said date; and
(b) in the case of an allotment of land made on or after the said date, before the expiry of a period of (five years from the date of such allotment or lease or up to November, 10, 1987, which ever be later).
From the bare reading of Section 122-B (4F), it would transpire that the person entitled to get the benefit of this sub-section shall be admitted as a bhumidhar with non-transferable right of the land under Section 195 and it shall not be necessary for him to institute a suit for declaration of his right as a bhumidhar with non-transferable right of the land.
Sub-Section 1 of Section 198 provides that in the admission of persons to land as (bhumidhar with non-transferable rights) or asami under Section 195 or Section 197 (hereinafter in this section referred to as allotment of land) the Land Management Committee shall, subject to any order made by a Court under Section 178 observe the order of preference as given under this Sub-Section.
Sub-Section 4 of Section 198 provides that the Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land inquire in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular, he may cancel the allotment and the lease, if any.
The submission of learned counsel for the petitioner that proceeding of cancellation of the allotment of land under Section 122-B (4F) could not be initiated, under Sub-Section 4 of Section 198 is misconceived for the reason that under Section 122-B (4F), the person is admitted as bhumidhar with non-transferable right of the land under Section 195 and Section 198 takes care of Section 195 and 197 both, therefore Sub Section 4 of Section 198 would be applicable with respect to both i.e. allotment of land under Section 195 or 197 of the Act.
It is not in dispute that the benefit of Section 122-B (4-F) of the Act was extended to the petitioner vide order dated 31.1.1996. It is also not in dispute that the proceeding was initiated by the Collector on the report of the Sub-Divisional Officer, Nautanwan dated 4.10.2011. Sub-Section 6 of Section 198 of the Act provides the period of limitation, according to which the proceeding under Sub-Section 4 of Section 198 of the Act can be initiated within a period of five years from the date of allotment provided the allotment is of after 1980.
In the submission of learned counsel for the petitioner, since allotment of land in dispute was made in the year 1996 and the proceeding was initiated in the year 2011, therefore the proceeding is grossly barred by time and the order impugned has been passed without jurisdiction. In support of his submissions, reliance has been placed upon the judgments of this Court in Suresh Giri and others Vs. Board of Revenue, U.P. at Allahabad 2010 (109) RD 566 and Jiya Ram and others Vs. State of U.P. and others 2012 (115) RD 372. In the aforesaid judgments, it is held that the limitation for initiating the proceeding for cancellation of lease is equal to the State as well as the private individual. However, in case, if there is strong element of fraud, in that eventuality, suo motu proceeding can be initiated even after the expiry of the period of limitation. In the submission of learned counsel for the petitioner, from the perusal of the impugned order, it do not transpire that any fraud has been played by the petitioner in the process of allotment.
The next submission of learned counsel for the petitioner is that the order impugned has been passed in gross violation of Sub-Section 5 of Section 198 of the Act, according to which, no order, under Sub-Section 4 of Section 198 of the Act, can be passed unless a show cause notice is given to the petitioner. The Collector, in his order, has mentioned that the notice was served to the petitioner and she, after reading the same, has refused to accept the same. The exact wordings of the report with regard to service of notice which has been made basis for passing the impugned order by the Collector is reproduced hereinunder :-
uksfVl gktk x.k uksfVl i< i Taking note of this, the Collector, placing reliance upon the report of the Sub-Divisional Officer according to which the land is reserved for school building and benefit of Section 122B (4-F) of the Act could not be extended to the petitioner, cancelled the allotment.
Aggrieved petitioner has filed revision before the Commissioner taking specific ground that the proceeding is grossly barred by time and further no notice was ever served before passing the impugned order but the revisional court has failed to consider this aspect of the matter and dismissed the revision.
The learned Standing Counsel and learned counsel for the Gaon Sabha both have not been able to show from the perusal of the judgments that the Collector has ever addressed himself either on the point of limitation or on the point of violation of Sub-Section 5 of Section 198 of the Act which speaks about the notice before cancelling the lease/allotment.
It may be noticed that the petitioner herself has approached this Court and made her thumb impression on the petition and sworn her affidavit meaning thereby, she is an illiterate lady, and how could she read the contents of notice as has been observed by the Collector in his order. All these glaring facts are apparent on the face of the record, which have neither been noticed by the Collector nor by the learned Commissioner.
Taking note of above facts, I am of the opinion that both the courts below have erred in passing the impugned orders without considering the relevant aspects of the matter.
The writ petition succeeds and is allowed. The impugned orders dated 23.11.2013 passed by the Commissioner, Gorakhpur Division, Gorakhpur in Revision No. 151/M-2013 (Smt. Reshma Vs. Collector, Maharajganj) and order dated 9.5.2013 passed by the Collector Maharajganj in Case No. 144/150 ( Sub-Divisional Officer Vs. Moti Lal and others) are hereby quashed. The matter is remitted back before the Collector for passing a fresh order after due notice to the petitioner in view of the observation made in this judgment in accordance with law after hearing all concerned.
Order Date :- 9.1.2014 Pratima