HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved. Case :- WRIT - C No. - 1364 of 2007 Petitioner :- Jiya Ram & 16 Others Respondent :- State Of U.P. & Others Petitioner Counsel :- S.N. Pandey,Havaldar Verma Respondent Counsel :- C.S.C.,Anuj Kumar Hon'ble Sunil Hali,J.
Petitioners are beneficiary of allotment made in their favour by the competent authority in the year 1976 in terms of the Section 195 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1950 (in short the UPZA & LR Act). They were admitted as Bhumidhar with Non Transferable Rights over the land which was vested in the Gaon Sabha. The allotment of the land was made in their favour in terms of the Section 198(1) of the UPZA & LR Act in order of preference. It is contended that the said allotment was made with prior approval of the competent authority. Aggrieved by this order, respondent no. 4 along with his brother filed a suit under Section 229-B of the UPZA & LR Act claiming that the land is their sirdari land and they are in continuous possession prior to coming into force of the UPZA & LR Act. It was further contended in the suit that the land in dispute is patti (part and parcel) of Mahal Samlal and the father of the respondents Dharam Singh as such it was not the property of the Gaon Sabha. The said suit was dismissed by the Assistant Collector/SDO, Kalpi vide order dated 29.10.1976. An appeal was preferred against this order which also stood dismissed vide order dated 3.2.1977 as it was not pressed by the respondents. Thereafter another suit was filed by the respondent no. 5 along with two brothers and one Smt Lachho widow of Darshan Singh under the Section 229-B of the UPZA & LR Act against the present petitioner. The ground taken in the suit was that the said land was gifted to Smt Lachho widow of Darshan Singh and was khudkast of the then Zamindar as such being khudkast the respondent no. 3 and his three brothers had automatically become Bhumidhar of the property in dispute. The said suit was dismissed being barred by principle of res-judicata vide order dated 8.3.1978 by the Assistant Collector/SDO, Kalpi. After having failed to obtain any relief from the Civil Court, respondent no. 5 filed an application under Section 198(4) of the UPZA 7 LR Act whereupon proceedings were initiated against the petitioner which was followed by notice under Section 198(5) of the UPZA & LR Act. Objection was taken that the application could not have been entertained after 1987 as provided under Section 198(6) of the Act and as such the proceedings were ultimately discharged. Another application was filed before the Collector who after filing of the application initiated proceeding under Section 198(4) of the Act and after issuing the notice has cancelled the lease of the petitioner vide order dated 9.12.2004. The ground for cancellation of the lease is that there was no prior approval of the allotment made in favour of the petitioners. Revision against the said order has also been dismissed vide order dated 5.8.2006. It is under these circumstances, the present writ petition has been filed.
Heard learned counsel for the parties and perused the material on record.
While scanning through the record of the case, it emerges that Respondent No. 5's right to claim as Bhumidhari stands rejected by the Civil Court. He has failed to establish his right as Bhumidhar under Section 229-B of the UPZA & LR Act. After having failed he has initiated the process of seeking cancellation of the lease in favour of the petitioners by invoking the provisions of Section 198(4) of the Act. His first application under the said provisions was not pressed, once the plea of limitation was raised by the petitioners in the first proceedings. Subsequent proceedings initiated under Section 198(4) of the Act has found favour with the Collector who has cancelled the lease of the petitioners.
Specific plea of limitation was raised before the Collector in terms of Section 198(6) of the Act in which it was specifically stated that no proceedings can be initiated under Section 198(4) of the Act beyond November 1987. Addl. Collector has not addressed himself on this issue and has cancelled the allotment only on the ground that there is no prior approval in favour of the petitioners. By analysing the import of the judgement, it be seen that the Collector has misdirected itself in not addressing the issue of limitation.
In order to appreciate the point of limitation the wording of Section 198(6) of the Act is specific and clear. It provides that no application or proceedings can be initiated beyond period of seven years if the allotment has been made on or before 1980. In case allotment of land has been made on or after the said period and before expiry of five years from the date of allotment or lease or up to November 10, 1987, whichever is earlier. Thus, two sets of period have been provided one is in respect of allotment made prior to 1980 and other is after 1980. However, in both the eventuality, it be seen that no proceedings can be initiated after November 10, 1987. In the present case, proceedings under Section 198(4) of the Act has been initiated in the year 1992 which is beyond the period of limitation provided under Section 198(6) of the Act.
The scheme of the Act clearly provides that in case any proceeding has been initiated by the Assistant Collector either on a complaint or suo motu the period of limitation in both the case is circumscribed by Section 198(6). It does not make any distinction in respect of where the proceedings have been initiated on a complaint or by Collector suo motu. All the grounds available for cancellation of the lease or allotment are to be circumscribed by period of limitation provided therein. Power to cancel the lease under Section 198(4) of the Act does not carve out any special category which can be excluded from the purview of the limitation. The ground on which the lease of the petitioner is cancelled relates to non approval granted by the Collector at the time of allotment. This can be a issue for the purpose of cancellation of allotment provided same can be raised within period of limitation provided under the Act. Once the period of limitation has expired the Collector cannot cancel the lease on the ground that there was no prior approval granted as contemplated by Section 195 of the Act.
A Co-ordinate Bench of this Court in Suresh Girs Vs. Board of Revenue, UP, Allahabad reported in 2010 (109) Rd 566 has held in paragraph 12, 13 & 17 as under:-
"12. The provisions of sub-section (4), (5) and (6) of Section 198 of the Act are to be construed in conjunction with one another and cannot be read in-isolation. The aforesaid provisions are unambiguous and the language used therein is plain and simple which makes no distinction between proceedings for cancellation of allotment initiated suo motu or on the application of a person aggrieved. Therefore, they have to be construed in the ordinary sense and in no other way. Sub-Section (4) of Section 198 of the Act provides for cancellation of allotment/lease by the Collector on his own motion as well as on the application of the person aggrieved. In both the cases, allotment/lease can not be cancelled without affording an opportunity of hearing to the allottee or the person concerned, as otherwise the action of cancellation would be termed arbitrary and violative of principles of natural justice. Sub-section (6) of Section 198 of the Act follows Section 198(4) of the Act which as such covers both the types of proceedings for cancellation viz. suo motu as well as on application of person aggrieved.
13. Accordingly, in my opinion, the inevitable conclusion is that the time frame prescribed for issuing notice before cancelling the allotment/lease of a land provided under sub-section (6) of Section 198 of the Act is applicable to both suo motu proceedings as well as proceedings on the application of the person aggrieved.
17. Moreover, allowing the Collector to initiate suo motu proceedings for cancellation of allotment/lease at any time would mean that the allotment would never be final and there would always be danger of its cancellation. This perhaps could never be the intention of the legislator. The limitation of three years as contained in Appendix III of the Rules and five years provided under Section 198(6) of the Act is a well thought of as the aforesaid period of time is sufficient enough either for the person aggrieved to make a complaint against the irregular allotment or for the authorities to examine and verify the record and to take action for cancellation suo motu, if necessary."
Other question i.e. required to be considered in this writ petition is as to whether the respondent no. 5 & others have any locus to challenge the allotment in the present case once their right to seek declaration that they are bhumidhar of the land has been rejected by the competent Court under Section 229-B of the Act. Once their right to be declared as Bhumidhar of the said land has been rejected they cannot claim to have any right in the said property nor can question the same. It is only the Gaon Sabha whose land has been allotted in favour of the petitioners who can claim to be aggrieved of such an order. It is required to mention that in the earlier proceedings on 13.3.1985 report was called from the Tehsil authorities by the Collector in which it is stated that the lease granted in favour of the petitioners on 1.2.1976 was approved by the SDM in the same very year, even on this ground also the findings of both the courts below cannot be sustained.
In the result the writ petition is allowed. The orders impugned dated 5.8.2006 and 9.12.2004 are hereby quashed.
Order Date :- 16.12.2011 RKS/ (Justice Sunil Hali)