Allahabad High Court
Chhidda And 5 Others vs State Of U.P. And 5 Others on 17 July, 2019
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 2 Case :- WRIT - C No. - 25103 of 2013 Petitioner :- Chhidda And 5 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- R.P.S. Chauhan Counsel for Respondent :- C.S.C. Hon'ble Pankaj Bhatia, J.
Heard learned counsel for the petitioners, learned standing counsel for the State and perused the material on record.
The petitioners have filed the present writ petition challenging the order dated 26.10.2009 passed by respondent no.3 in Case No.2/13/36/2004 (Vikram Singh and others Vs. Ratiram and others), Case No.36/2009 (State Vs. Hari Singh), Case No.37/2009 (State Vs. Mangu), Case No.52/2009 (State Vs. Hari Singh), Case No.55/2009 (State Vs. Churdi) and Case No.56/2009 (State Vs. Luxman) under Section 198(4) U.P.Z.A. & L.R. Act and against the order dated 29.3.2001 passed by respondent no.2 in Revision No.92/2010-11 under Section 333 of U.P.Z.A. & L.R. Act and order dated 10.9.2012 passed by respondent no.2 in Misc. Case No.45/2011-12.
The averments in brief are as under:-
The Plot Nos. 205, 205/1 and 110/4 situate at village Hasan Garhi Tehsil Kanth District Moradabad was Navi Prati land recorded in the revenue records under category 5(1) was allotted to the petitioners, they being landless persons and eligible for allotment of land on lease. It is stated that the Land Management Committee of Gaon Sabha passed a resolution dated 29.1.1987 and allotted land of Khata No.194 on lease in favour of the petitioners in the following manner:-
Serial Number Name of Allottee Plot Number and Area in Hect.
Place of Land 1 Chhedda 110/4/0.443 Hasangarhi 2 Rajpal 205/1/1.00 "3
Churdi 205/1/0.405 "4
Hari Singh 205/0.417 "5
Luxman 205/1/0.417 "6
Mangu 205/0.930 "
It is further stated that the resolution of the Land Management Committee dated 29.1.1987 was approved by the Sub Division Magistrate, Kanth, Moradabad vide his order dated 21.2.1987 and in pursuance to the said leases the names of the petitioners were duly mutated in the revenues records and since then the petitioners are in continuous possession over the land in question. It is further stated that vide order dated 23.8.2002 passed by Sub Divisional Officer, Kanth under Section 131 of the Land Revenue Act, the petitioners were declared Bhumidhars of the aforesaid land with transferable rights. The petitioners have also placed on record the Khatauni pertaining to the allotment of land in favour of the petitioners.
After about 16 years one Vikram Singh son of Chunni filed his objection under Section 198(4) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) seeking the cancellation of the leases granted to the petitioners on the ground that the same were leased out to the petitioners without following the proper procedure, although the said objections were filed after about 16 years, the Sub Divisional Officer, Kanth entertained the said objections and called for a report from the Tehsildar. It is stated that Naib Tehsildar submitted some ex-parte report on 10.3.2004 (Annexuire-3 to the writ petition). The Tehsildar vide his report submitted that the land in question was entered in category 6 which is a public utility land and the allotment of the said land was illegal, unless order was passed under Section 132 (c) of the Act converting the land from category category 6 to category 5 and there being no order to that effect on record, the allotment of the land in question in favour of the petitioners is illegal.
Perusal of the said report on record shows that the Tehsildar never took the views of the petitioners prior to preparing his report. The petitioners allege that in pursuance to the said ex-parte report the Sub Divisional Officer, Kanth forwarded the matter before the respondent no.3 for initiating the proceedings for cancellation of leases under Section 198(4) of the U.P. Zamindari Abolition and Land Reforms Act, 1950. The petitioners state that on 4.7.2009 a show cause notice was served on the petitioners by the respondent no.3 calling upon the petitioners to file objections as to why the cancellation of the allotment of the land in question may not be proceeded with only on the ground that allotment of the land was barred under Section 132 of the Act.
In response to the said show cause notice the petitioners preferred their objections highlighting the facts regarding the allotment of the land as well as the petitioners being declared as Bhumidhars way back in the year 2002. It was also highlighted that in the land revenue records of 1391 Fasli up to 1397 Fasli were being produced wherein the land in question was recorded as cultivable Navin Perti. The petitioners also challenged the issuance of show cause notice beyond the prescribed period of limitation and on the question of non-joinder of necessary parties. The respondent no.3 vide his order dated 26.10.2009 (Annexure-6 to the writ petition) recorded that the Tehsildar in his report had recorded that the allotment of the land was barred under Section 132 of the Act which was established by the report of the Tehsildar and proceeded to hold that the allotment of the land was illegal and erroneous and, thus proceeded to cancel the leases granted in favour of the petitioners. The petitioners came to know of the ex-parte report of the Tehsildar only when the order dated 26.10.2009 was passed. The petitioners challenged the order dated 26.10.2009 by filing a Revision No.92/2010-11 under Section 333 of U.P. Zamindari Abolition and Land Reforms Act, 1950 before the respondent no.2. In the said Revision specific grounds were taken that the proceedings initiated were beyond the prescribed period of limitation as also that the land in question was not affected by Section 132 (2) of the Act. The respondent no.2 vide his order dated 29.3.2011 dismissed the Revision relying upon the C.H. Form Nos.41, 45 and holding that the land in question was a public utility land specified under Section 132 of the Act and the allotment of the said land was wholly illegal.
The petitioners thereafter preferred a Review application under Section 47 (1) C.P.C., the said Review petition was dismissed on the question of limitation. The petitioners have alleged in the writ petition filed before this Court that an information was sought by filing R.T.I. application with regard to the consolidation proceedings relating to village Hasan Garhi, Tehsil Kanth, District Moradabad. In response to the said application it was informed that the consolidation proceedings were initiated by issuing notification under Section 4 (2) of the U.P. Consolidation of Holdings Act on 16.4.1992, published on 12.9.1992, however, subsequently a notification was issued under Section 6 (1) of the Act dated 4.5.2000, published on 24.6.2000 whereby the consolidation proceedings were dropped (Annexure-12 to the writ petition). The petitioners have also brought on record a certified copy of the Khatauni pertaining to revenue records of 1391 Fasli to 1397 Fasli showing that the land was recorded under category 5 (1) and not under the category 6.
In the backdrop of the facts referred above, the counsel for the petitioners argued that the C.H. Forms 41 & 45 are forged documents in view of the fact that the consolidation proceedings had been admittedly dropped under Section 6 (1) of the U.P. Consolidation of Holdings Act. It is further argued that the proceedings initiated against the petitioners are specifically barred under Section 198 (6) of the Act. The petitioners have also challenged the orders on the ground of violation of principles of natural justice inasmuch as the ex-parte report of the Tehsildar was never provided to the petitioners. It is further submitted that even the said report of the Tehsildar, which is the sole basis for cancellation of the leases of the petitioners, does not even take into consideration the revenue records wherein the land in question was recorded under category 5 (1) and not under category 6. On 10.5.2013 this Court while entertaining the writ petition passed following order which is reproduced herein below:-
"Heard Sri R.P.S. Chauhan, learned counsel for the petitioners, learned Standing Counsel appearing for the State-respondents and Sri Vijai Bhan Singh, holding brief of Sri M.N. Singh, learned counsel for the Gaon Sabha.
The submission is that the petitioners were granted lease on 21.2.1987 and in view of section 131 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, they were declared as Bhumidhars with transferable right on 23.8.2002. The proceeding for cancellation of the lease was initiated on the instance of an individual on 26.7.2003. In view of sub section (6) of section 198 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, the proceeding was barred by time, but both the courts below have erred in cancelling the lease treating the land falling under section 132 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 on the ground that the same is recorded in the consolidation records as river.
Sri Chauhan contends that the petitioners have filed documentary evidence while filing the review application showing that the village in question was never notified for consolidation and the entire records, on which basis the Tehsildar has submitted the report, is forged.
The matter requires scrutiny.
Issue notice.
Notices on behalf of respondent nos. 1 to 4 have been accepted by the office of learned Chief Standing Counsel, whereas Sri M.N. Singh has put in appearance on behalf of respondent no. 5. Therefore, notices need not be served again to the aforesaid respondents.
Issue notice to respondent no. 6 through registered post returnable at an early date.
Steps be taken within two weeks.
In the meantime, counter affidavit, if any, may be filed by learned counsel for the respondents.
As an interim measure, without prejudice to right and contention of the parties and subject to further orders of this Court, the eviction of the petitioners from the land in dispute shall remain stayed, provided:
(i) petitioner nos. 2 and 6 deposit Rs. 5,000/- (Rupees five thousand only) and the remaining petitioners, i.e., petitioner nos. 1, 3, 4 and 5, deposit Rs. 2,500/- (Rupees two thousand five hundred only) within a period of two months from today before the respondent no. 4;
(ii) the above amount shall be deposited every year in the same month in which the first deposit is made;
(iii) the condition of deposit will not apply in case the State Government declares the area under drought or flood;
(iv) the amount so deposited shall be kept in a separate account;
(v) in case the writ petition is allowed, the amount so deposited shall be returned to the petitioners as per the deposits of each petitioners with interest and in case the writ petition is dismissed, the amount so deposited shall go to the Gaon Sabha;
(vi) in case of default of the above conditions, the interim protection granted today shall stand vacated;
(vii) in the meantime, neither any construction shall be made over the land in dispute nor any third party right shall be created."
In response to the averments made in the writ petition Lekhpal has filed a counter affidavit wherein it has been repeatedly said that the land in question is recorded under category 6 and have justified the cancellation of the leases. There is no reply to the specific averments of the petitioners that the consolidation proceedings although initiated were dropped. There is no reply to the specific averments that the C.H. Form Nos. 41 & 45 are forged documents. The respondents have even failed to file any document to establish that the land in question was a public utility land. There is no reply to the specific averments with regard to the limitation.
In the backdrop of the submission made at the bar the following questions arise for consideration:-
i) Whether any show cause notice proposing cancellation of lease can be issued beyond the period of limitation prescribed under Section 198 (6) of the U.P. Zamindari of Abolition and Land Reforms Act, 1950 ?
ii) Whether the cancellation of lease granted to the petitioners can be termed as a valid exercise of power ?
The counsel for the petitioners has placed reliance upon a judgment of this Court dated 10.5.2019 passed in Writ C No.33761 of 2014 (Smt. Shakuntla and others Vs. State of U.P. & others) in support of his case. Relevant part of the said case is reproduced herein below:-
"Section 195 of the Act confers the power on the Land Management Committee to admit any person as Bhumidhar with non-transferable right with the prior approval of the Tehsildar (the word "Tehsildar" has been replaced by Assistant Collector by virtue of U.P. Act No. 11 of 2002).
Section 197 of the said Act confers the power on the Land Management Committee to admit any person as Aasami of any land, and Section 198 of the said Act provides that for admitting any person to land under Section 195 or Section 197 of the Act, the Land Management Committee shall observe the following order of preference as enumerated in the sub-section 1 of Section 198 of the Act. Section 198(4) of the Act confers the power on the Collector, who may of his own motion, or on an application made by any person aggrieved enquire into the matter and if he is satisfied that the allotment is irregular he may cancel the allotment and the lease, if any. Sub-section 5 of Section 198 provides for issuance of a show cause notice prior to passing of any order under Section 198(4) by the Collector and Section 198(6) of the Act provides for limitation for issuance of a show cause notice.
It is thus clear from a plain reading of Section 198(6) (b) that in the cases where the allotment of the land is made on or after 10th November 1980 a show cause notice proposing to cancel the lease can be issued only within a period of five years from the date of allotment or upto 10th November 1987 whichever is later. The said limitation is prescribed for exercise of power by the Collector where the allotments are made in an irregular manner under Section 198(4) of the Act. In the present case applications were filed by the third persons alleging that huge irregularities were committed while allotting the land and a prayer was made for exercise of powers under Section 198(4) for cancellation of the lease. The said power for cancelling the lease, in the cases, where allegations are made alleging irregularity while allotment can be exercised only within the period of five years prescribed from the date of the allotment or upto 10th November 1987. In the present case, the land was allotted on 21.2.1987 and thus the show cause notice could be issued only upto 20.2.1992 and not thereafter. The action of divesting anybody of its rights in land is confiscatory in nature and thus the statutory enactment pertaining to limitation has to be strictly interpreted.
From the plain reading of Section 198(6)(b) of the Act, it is clear that the power of cancellation/issuance of show cause notice can be done only within the limitation as prescribed and not thereafter. The proceedings in the present case having been initiated after about 16 years are clearly barred by limitation thus rendering the entire proceedings as without jurisdiction."
It has been argued at the bar that where allotment of the land in question specifically barred as in the present case under Section 132 of the Act, no limitation will apply. Section 132 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 provides as under:-
"132. Land in which [bhumidhari] rights shall not accrue. -
Notwithstanding anything contained in Section 131, but without prejudice to the provisions of Section 19, [bhumidhari] rights shall not accrue in -
(a) pasture lands or lands covered by water and used for the purpose of growing singhara or other produce or land in the bed of a river and used for casual or occasional cultivation;
(b) such tracts of shifting or unstable cultivation as the State Government may specify by notification in the Gazette; and
(c) lands declared by the Slate Government by notification in the Official Gazette, to be intended or set apart for taungya plantation or grove lands of a [Gaon Sabha] or a Local Authority or land acquired or held for a public purpose and in particular and without prejudice to the generality of this clause-
(i) lands set apart for military encamping grounds;
(ii) lands included within railway or canal boundaries;
(iii) lands situate within the limits of any cantonment;
(iv) lands included in sullage farms or trenching grounds belonging as such to a local authority;
(v) lands acquired by a town improvement trust in accordance with a scheme sanctioned under Section 42 of the U.P. Town Improvement Act, 1919 (U.P. Act V11 of 1919) or by a municipality for a purpose mentioned in Clause (a) or Clause (c) of Section 8 of the U.P. Municipalities Act, 1916 (U.P. Act VII of 1916); and
(vi) lands set apart for public purposes under the U.P. Consolidation of Holdings Act, 1953 (U.P. Act V of 1954)."
The said argument does not merits acceptance for the sole reason that the land in question has to be set apart for public purposes under the U.P. Consolidation of Holdings Act. In the present case there is specific argument and document on record to establish that the consolidation of holdings proceedings pertaining to the land in question were never finalized and were dropped mid away and thus, it cannot be held that any bar as provided under Section 132 of the Act was triggered relating to the land in question. I am also not impressed with the arguments that in the cases which are covered by Section 132 of the Act, no limitation would apply. In this regard, it is relevant to mention that the Hon'ble Supreme Court has categorically held that where no limitation is prescribed action should be taken within a reasonable time, in the present case the proceedings were initiated after about 16 years which can never be termed as a reasonable period. The relevant observation of the Supreme Court 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."
The orders impugned in the present writ petition are also liable to be quashed as having been passed without the observance of principles of natural justice. It is clearly borne out from the record that the Tehsildar never gave any opportunity to the petitioners before preparing the report in question, a copy of the Tehsildar's report was never provided to the petitioners prior to the passing of the order dated 26.10.2009. The veracity of the Tehsildar's report was not even considered by the respondent no.3 before passing the order dated 26.10.2009 and, thus, the orders cancelling the lease based only upon ex-parte report, I am afraid are liable to be quashed the orders as having been passed without observing the principles of natural justice.
The writ petition merits acceptance and the orders impugned are liable to be quashed on both counts i.e. that the orders cancelling the lease has been passed beyond the prescribed period of limitation as well as on the ground that the orders passed are without observing the principles of natural justice.
Thus, in view of the findings recorded above, the orders dated 26.10.2009 and 29.3.2011 as well as the order dated 10.9.2012 are liable to be quashed.
Accordingly, the order dated 26.10.2009 passed by respondent no.3 Additional Collector (City) District Moradabad in Case No.2/13/36/2004, 36/2009, 37/2009, 52/2009, 55/2009 and Case No.56/2009 under Section 194(4) U.P.Z.A. & L.R. Act, 1950 and the order dated 29.3.2001 passed by respondent no.2 Additional Commissioner (Administration) Moradabad Division, Moradabad in Revision No.92/2010-11 (Chhidda and others Vs. State of U.P. and others) and the order dated 10.9.2012 passed by respondent no.2 Additional Commissioner (Administration) Moradabad Division Moradabad in Misc. Case No.45/2011-12 (Chhidda and other Vs. State of U.P. & others, Annexures-6, 8 and 11 to the writ petition), are quashed.
The writ petition is allowed. However, there will be no order as to costs.
Order Date :- 17.7.2019 Hasnain