Allahabad High Court
Subhag And Another vs Board Of Revenue, U.P. At ... on 12 August, 2011
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No.6
Civil Misc. Writ Petition No. 3252 of 2010
Subhag & Anr. Vs. Board of Revenue, U.P. at Allahabad & Ors.
And
Civil Misc. Writ Petition No. 3576 of 2010
Ganpat Vs. Board of Revenue, U.P. Allahabad & others
*****
Hon'ble A.P. Sahi,J.
These two writ petitions raise common questions of law and are founded on common facts as such are being disposed of together with the consent of the parties. I have heard learned counsel for the petitioners in both the writ petitions and Sri R.S. Ram for the contesting respondents and the learned Standing Counsel for the State as well as learned counsel for the Land Management Committee. The State has not filed any counter affidavit and since the facts are not disputed at this stage, it is no longer necessary to keep the matter pending as the private respondent has filed a counter affidavit.
The short question raised by the learned counsel for the petitioners in both the writ petitions is that the lease granted in their favour in the year 1986 had become final and the issue relating to such grant could not be reopened after 10 years on an application moved by the contesting respondents in the year 2006. The submission is that the show cause notice was barred by limitation.
The petitioners filed their objections before the learned Collector after the issuance of the notice raising this issue of limitation. The Collector answered the said issue in favour of the petitioners by clearly recording that the application which has been filed by the contesting respondents for cancellation is barred by time as per provisions of sub-section (6) of Section 198 of the U.P. Z.A. & L.R. Act, 1950. The Collector recorded a finding to that effect but thereafter proceeded to entertain the claim on the ground that the same land had been earlier allotted in the year 1970 to the complainant therefore the same deserves an enquiry.
Learned counsel submits that once the proceedings relating to cancellation were barred by limitation then the Collector, after having recorded this finding in favour of the petitioners, could not have proceeded to examine the claim of the contesting respondents in a matter relating to the grant of lease to the petitioners in the year 1986. The petitioners aggrieved by the said order preferred a revision and the same was dismissed after discussing the case of the contesting respondents in relation to their alleged claim of the grant of lease on the basis of a resolution of the year 1970. On the issue of limitation, a one line observation has been made that there is a provision of computing limitation from the date of knowledge. Learned counsel submits that such an observation does not amount to a finding on the question of limitation which went in favour of the petitioners by the Collector and, therefore, the order is perverse and deserves to be set aside. The issue relating to merit could not have been gone into so long as limitation prohibited the same.
Sri R.S. Ram learned counsel for the respondents on the other hand contends that so far as the contesting respondents are concerned they were entitled to the benefit of the abatement proceedings in relation to the earlier allotment and consequently that fact having been noticed by the Collector as also by the revising authority cannot be ignored and the proceedings can be reopened. He therefore contends that neither the Collector nor the revising authority have committed any error in proceeding to reopen the allotment proceedings.
Learned Standing Counsel has also supported the impugned order and he submits that the knowledge having been disclosed by the complainant in the year 2006, the question of limitation cannot be pressed into service and hence even if the Collector has recorded a finding in favour of the petitioners the revising authority has rightly reappreciated the same, hence the impugned orders do not require any interference.
The facts not being disputed, it is clear that the entire resolution of the year 1970 was cancelled by the order dated 11st September 1980. In the opinion of the Court, if the resolution itself was annulled, then whether the subsequent proceedings abated or not, may not be relevant.
The contesting respondents did not challenge the order dated 20.2.2008, where the Collector has held that the application for cancellation of the lease of the petitioners has not been filed within time. The observation made by the revising authority about knowledge being computed from the date of constructive knowledge, cannot be countenanced in view of the provisions of sub-section (6) of Section 198 of the U.P. Z.A. & L.R. Act, 1950, quoted herein below:-
"Section 198(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 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 even be later]."
The question of date of knowledge is not contemplated under the said provisions which are peremptory in nature and the power is given to the Collector to issue a show cause notice before the expiry of the period of five years from the date as prescribed in the statute itself.
In the instant case, the lease was granted in the year 1986 and therefore sub-clause (b) of sub-section (6) would be attracted. The notice has to be issued by the Collector within the time prescribed. The date of knowledge of the complainant is therefore not relevant for the said purpose. The limitation so prescribed, therefore attaches finality to the rights of the parties by operation of law. This question was clearly answered in favour of the petitioners by the Collector. The issue relating to the date of knowledge was not even raised before the Collector and it is the revising authority which has made a stray observation to that effect. The notices have been issued in 2006, almost after two decades of the grant of lease.
In such a situation, neither the Collector nor the revising authority were justified in proceeding with the matter and the order of the Collector ought to have initially confined itself to the issue of limitation. Accordingly, the order dated 20.2.2008 and the order of the revising authority dated 18.12.2009 are both unsustainable. They are hereby set aside. It shall be open to the Collector to pass a fresh order in accordance with law, in case the law so permits in the light of the observations made herein above.
The writ petition is allowed.
Dated: 12.08.2011
Sahu
