Dev Sharma & Another vs Board Of Revenue & Others
2011 Latest Caselaw 4172 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

	Reserved on 26.08.2011
 
Delivered on 29.08.2011
 

 

 
Civil Misc. Writ Petition No. 15760 of 2003
 
Dev Sharma & Anr. Vs. Board of Revenue & Ors.
 

 
*****
 

 
Hon'ble A.P. Sahi,J.

The two petitioners, Dev Sharma and Gaurav, have prayed for quashing of the order dated 10th March, 2003 passed by the Additional Collector (Finance & Revenue) Gautambudh Nagar, in case No. 33 of 2001, whereby the learned Additional Collector has come to the conclusion that the proceedings initiated under Sub Section 4 of Section 198 of the U.P. Z.A. & L.R. Act, 1950 are not barred by time, as in view of the submissions so raised, the action having been taken suo motu under the said Act are valid and that notices should be issued calling upon the petitioners and such other persons to examine as to whether the allotment of land in favour of the petitioners in 1954 was genuine and in accordance with law or not. Assailing the said order the petitioners approached the Board of Revenue by filing a revision which was also dismissed affirming the order of the Additional Collector. Hence, this petition.

The litigation has a chequered history and therefore a brief background would be necessary to understand the controversy.

The petitioners with several others claim that allotment was made in their favour by the Gaon Sabha and had the sanction of the competent authority under the then existing provisions of Section 195 of the 1950 Act. The petitioners also claim that they fell in the order of preference as then existed under Section 198 of the Act. It is further their contention that Rules were followed for such allotment and there was no irregularity in the procedure prescribed as contemplated under Rule 173 to 175 of the U.P. Z.A. & L.R. Rules, 1952. After the allotment in the year 1954, which was under the prescribed rules the same also finds entry in several public documents. The names of the petitioners or their predecessors were entered into the revenue records as bhumidhar with non-transferable rights and later on in view of the provisions of U.P. Act No.8 of 1977 the petitioners became bhumidhars and are continuously in possession over the land in dispute.

The title and possession of the petitioners came to be tinkered with for the first time in the year 1995 and they were sought to be dispossessed by the authorities on the pretext that the land vests in the Gaon Sabha and that the names of the petitioners have been wrongly recorded, hence, they deserve to be dispossessed. The petitioners approached this Court through writ petition no. 1958 of 1995 along with other petitioners and the said writ petition was disposed of on 20th January, 1995 by the following order:-

"BY THE COURT

The petitioners have alleged that they have been granted patta in 1954 but now they apprehend that they may be dispossessed.

Learned counsel for the petitioners states that as yet no order for dispossession has been passed under Section 198 (4) of the U.P. Z.A.L.R. Act. Hence this petition is premature. However, I clarify that the petitioners shall not be dispossessed except in accordance with law.

With these observations the petition is finally disposed of.

Dt. 20.1.1995 Sd./- M. Katju."

It appears that after the disposal of the said writ petition, on 27th January, 1995, an endorsement came to be made in the revenue record of rights (Khatauni) directing expunging of the names of the petitioners and the other tenure holders who were recorded over the said land in proceedings under Section 33/39 of the U.P. Land Revenue Act, 1901. This action of the revenue authorities came to be challenged by the petitioners in writ petition no. 3751 of 1995. The said writ petition was entertained and after exchange of affidavits and summoning of the records the petition was allowed holding that the basis for expunging the entries did not fall within the scope of correction and therefore the name of the petitioners could not be expunged summarily. It was also observed that if the allotment in favour of the petitioners was sought to be annulled then the same could have been done only under the provisions of Section 198 and not by an indirect method through summary proceedings. It was further held that the action of the Sub Divisional Magistrate was mala fide and was contrary to the settled law in relation to correction of entries as such the petition was allowed. The operative part which is relevant for the present controversy apart from the other facts discussed therein is quoted herein below:-

"The law in respect of correction of papers case is well settled. The highest revenue court in the State has consistently held that long standing entries cannot be corrected in a case of correction of papers. According to settled legal position any person aggrieved by a long standing entry has to get his rights determined in regular suit. In case the Gaon Sabha or State was aggrieved then it was for them to seek appropriate remedy but so far this case is concerned, it is not a case of correction of papers.

In these cases the Sub-Divisional Officer was summoned in view of the fact that the order was passed by Sub-Divisional Officer against settled legal position. He was asked to point out circumstances in which he passed order on undated reports of Lekhpal, Supervisor Kanoongo and Naib Tehsildar while the matter was dealt with in such a hurry that the order was passed by Tehsildar on 2.1.1995 and on same day file reached the court of sub-Divisional Officer and he also passed order on same day on 2.1.1995 without affording opportunity of hearing to petitioners to have their say in the matter. He was specifically asked about the file being dealt with in a hurry against normal practice of sending of file by Tehsildar and then passing of order after sometime to which he had no reply. He was also asked, as allegations of malafide were there, to inform court as to how he came to the conclusion that correction could be made in this case and why it be not considered that he has abused his powers. The sub-Divisional Officer submitted that as he considered the entry to have been made wrongly, he passed the order. So far this aspect is concerned, the Sub-Divisional Officer Sikandarabad in his order has indicated that he relied on the report to the effect that petitioners are large land holders and they do not live in territorial limits of village of tehsil Sikandarabad and allotment has not been done in accordance with law. He has also assigned reason for ordering correction that approval of Sub-Divisional Officer, Sikandarabad was not obtained in respect of allotment of this land and there was no file in respect of this allotment of land. According to Sub-Divisional Officer what was done by him by ordering deletion of names of petitioners was for the benefit of Gaon Sabha when it was pointed out to him that no approval of Sub Divisional Officer was required under law at the time of allotment of land to petitioners and it was by a subsequent legislation that it was made necessary, he was unable to clarify the position despite his order which is before me.

Although what has been said above may be relevant for determining the malice I do not consider it necessary to go into the question as to whether the revenue authorities acted malafidely in this case, as the writ petition can be disposed of on a different ground. As stated earlier, it is settled law in the State that long standing entries cannot be corrected in correction of papers matters and the orders directing deletion of petitioners' name are contrary to that settled legal position. It is further relevant to observe that so far this case is concerned, from perusal of the orders of Sub-Divisional Officer it is apparent that the Sub Divisional Officer was of the view that the land could not be allotted to petitioners as they are large land holders and non-residents of tehsil Sikandarabad as well as approval of Sub-Divisional Officer was not obtained. So far latter requirement of approval of Sub-Divisional Officer is concerned it was not necessary in 1362F as the law as it stood at that time did not require approval of the Sub-Divisional Officer in respect of allotment of Gaon Sabha land under Section 198 of Zamindari Abolition Act. As it was not necessary to obtain approval of Sub-Divisional Officer in respect of allotment, therefore, the reason assigned for correction about want of approval of Sub-Divisional Officer is unsustainable.

There is another reason due to which the orders cannot be sustained. In cases of correction of papers it is not open for Sub-Divisional Officer to see the regularity of procedure in allotment. In case the Sub-Divisional Officer was of the view that necessary procedure has not been followed in making allotment or there was any procedural irregularity then he could have brought it to the notice of the Collector, who could have drawn proceedings under Section 198 of Zamindari Abolition Act keeping in view the law of limitation and other legal provisions. The allotment made in favour of tenure-holders can be cancelled after following the procedure provided under section 198 of Zamindari Abolition Act. Unless the allotment is cancelled, the allottee continues to be tenure-holders of land allotted to him. These aspects were pointed out to the Sub-Divisional Officer, who was summoned in this case. He has been unable to point out any provision of law under which such a case fall within the ambit of correction of papers case. The State has failed in this case to support the orders passed which are contrary to settled law to the effect that the long standing entries could not be corrected. The entries deleted in this case of correction of papers are therefore liable to be restored.

For aforesaid reasons the writ petition succeeds and orders of Sub-Divisional Officer, Sikandarabad, Bulandshahar dated 2.1.1995 in Case Nos. 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 of 1995 under Section 33/39 of U.P. Land Revenue Act are quashed. The Collector Bulandshahar is directed to correct the papers by restoring the names of petitioners in their respective case within one month from the date of production of certified copy of this order. The writ petition is allowed with costs.

The record of the court below be handed over to the Standing Counsel."

It appears that some of the tenure holders including the petitioner no. 2 Gaurav were again threatened with dispossession and they filed a civil suit for injunction being Original Suit No. 232 of 2002 impleading the State of U.P. and Gaon Sabha both as respondents in the said suit.

During the pendency of these proceedings, it appears that one Veer Singh along with some other person filed a complaint under Section 198 (4) of the 1950 Act in the year 2001 itself which was registered as case No. 33 of 2001 giving rise to the present proceedings. A copy of the said complaint has been filed as Annexure 7 to the writ petition, where it was stated that the allotment in favour of the petitioners and other persons was doubtful and against the procedure prescribed in law therefore suo motu action should be taken. This application was registered as Case No. 33 of 2001, but it appears, later on the complainant Veer Singh through his counsel made an endorsement on 21.2.2003 that he does not want to press this petition. Nonetheless, it appears that the proceedings were undertaken under the suo motu powers whereupon notices were issued and the petitioners filed their objections. They alleged that the action has been taken on the basis of a complaint and is time barred, and even the allegations of irregularity are unfounded as the allotment was valid and in accordance with the rules. It was also pointed out as having been instituted against dead persons without caring to find out the substituted heirs and hence, the notices should be discharged.

It was also objected therein that a fresh allotment of the same land was made on 4th February, 1995 that was invalid, inasmuch as, the allotment of the petitioners had never been cancelled and therefore, the entire proceedings being beyond the jurisdiction of the authority apart from being time barred deserves to be dropped.

The impugned order dated 10th March, 2003 came to be passed by the Additional Collector holding that the action having been taken suo motu, was not permitted and even otherwise the alleged claim of the petitioners of allotment of land in the year 1954 appears to be fake. It was also mentioned that the allotment is to persons who were resident of a different village and even otherwise to minors and most of it related to allotment in favour of one particular family. The relevant allotment proceedings of 1954 have not been filed by the allottees and therefore the same deserves to be enquired into as it is directly correlated with the limitation. In such a situation, it cannot be said that the proceedings were barred by time and it is still open to the petitioners to file their objections and contest the matter. The petitioners went up in revision to the Board of Revenue against the said order which has been dismissed on 26th March, 2003, hence, this petition.

In the aforesaid background Sri G.N. Verma learned Senior Counsel for the petitioners submits that the entire proceedings being without jurisdiction and barred by time deserve to be quashed and it is not necessary for the petitioners to file any reply and contest a proceeding which cannot be initiated in the circumstances indicated above.

He contends that a similar attempt had been made before the consolidation authorities through an objection filed by the Gaon Sabha under Section 9 of the U.P. Consolidation of Holdings Act, 1953 where the consolidation officer vide his order dated 24.2.2006 had condoned the delay in filing of the objections by the Gaon Sabha and had allowed them. The petitioners along with the other affected tenure holders filed several writ petitions and the leading writ petition 17061 of 2006 Gaurav Vs. State of U.P. & others that came to be decided along with other connected writ petitions on 2nd April, 2007. After contest the writ petition was allowed holding that the Consolidation Officer had passed the order without giving any opportunity to the petitioners and the same being in violation of principles of natural justice could not be sustained. The judgment dated 2nd April, 2007 is on record.

Sri Verma submits that the respondent State authorities and revenue authorities, therefore, made several attempts to dislodge the petitioners by adopting methods which were not available in law and ultimately passed the impugned orders which were without jurisdiction hence the same deserve to be set aside. Sri Verma has placed before the Court the provisions of allotment as were then existing and the rules which shall be referred to hereinafter. He further contends that all official acts are accompanied by a presumption that they have been undertaken in good faith and the documentary evidence which has been filed by the petitioners in support of their claim are evidence admissible within the presumption available under Section 114 (e) of the Indian Evidence Act, 1872. The same having been completely overlooked and ignored the authorities could not have proceeded by raising a doubt about the entries in favour of the petitioners as fake. He submits that the converse presumption raised by the authorities is founded on mere surmises, conjectures and bald doubts without any material to support the same.

He further contends that the suo motu action which has been initiated is on a mere doubt of fraud without there being any element of fraud, and in the absence of fraud having been either established or even prima facie shown there was no occasion to have initiated suo motu proceedings for cancellation of lease under Section 198 (4) of the 1950 Act. He has invited the attention of the Court to Section 17 of the Indian Contract Act to support his stand on fraud. In short his submission that there were no ingredients available to sustain the said proceedings. He contends that the provisions of the limitation prescribed under sub-section (6) of Section 198 clearly operate in favour of the petitioners and against the respondents and therefore the conclusion drawn by the Additional Collector is erroneous. He has relied on several decisions to substantiate his submission.

On the issue of limitation reliance has been placed primarily on judgements, one in the case of Suresh Giri and others Vs. Board of Revenue, U.P. Allahabad & others, reported in 2010 (2) ADJ Pg. 514, and the other decisions in the case of Krishna Pal Vs. The Commissioner & others, Writ Petition No. 44917 of 1999 allowed on 17.2.2011, the judgment of this Court in Writ Petition No. 35017 of 2007 decided on 1.8.2007 and in the case of Ram Prakash Vs. The Commissioner and others, Writ Petition No. 44937 of 1999 decided on 25.2.2011.

On the issue relating to as to what is fraud, Sri Verma has relied on the case of the apex court Nagubai Ammal Vs. B. Snama. Rao, reported in AIR 1956 Supreme Court Pg. 593. He therefore contends that there was neither any fraud established or proved or any material in existence to remotely indicate as to whether there was fraud or not and hence, applying the ratio of the decisions aforesaid the proceedings were clearly time barred and without jurisdiction. He therefore submits that the petitioners cannot be compelled to face proceedings which are without any basis.

Replying to the said submissions, a battery of learned Standing Counsels as well as counsels for the complainants Sri A.K. Sachan, Sri Rajiv Rai and Sri S.A. Saroj have assisted the Court contending that the prima facie view expressed in the impugned order dated 10th March, 2003 is correct and the petitioners till date have not been able to produce any document including the allotment order or lease to establish their rights of allotment and in the absence of any valid title, it is clear that the entries in their favour are fake and rightly deserve to be expunged. They further contend that subsequent allotments made in the year 1995 were valid and that the petitioners being in illegal occupation the writ petition deserves to be dismissed. The petitioners can still contest the matter in the pending proceedings.

It is relevant to point out that an impleadment application had been filed on behalf of one Jafaru and others who claim to have been allotted the same land on 25th January, 1995 stating that they were proper and necessary parties. The said impleadment was rejected on 30.3.2010. Apart from this, these persons had also filed writ petition No. 38140 of 2009 praying that a mandamus be issued to the respondent no. 4, Industrial Development Authority therein not to extend the benefit of compensation of the land that had been acquired to the respondents therein including present two petitioners. The said writ petition was dismissed on 30th July, 2009 by the following order:-

"Hon'ble Ashok Bhushan, J

Hon'ble R.A. Singh, J.

Heard learned counsel for the petitioners.

By this petition, petitioners have prayed for a writ of mandamus directing the respondent no. 4 not to give compensation of acquired land till pendency of Civil Misc. Writ Petition No. 15760 of 2003, Dev Sharma and Ors. Vs. Board of Revenue & Ors.

Learned counsel for the petitioners submits that some of the petitioners are party in the aforesaid writ petition. It is open for the petitioners to seek appropriate relief in the pending writ petition, this writ petition for the relief as claimed cannot be entertained.

The writ petition is dismissed."

They therefore contend that there is a right of contest available and hence their assistance is very much warranted in the present case.

The submission raised by the learned Standing Counsel and by the learned counsel for the contesting opposite parties is to the effect that there being no existence of any allotment or lease in favour of the petitioners the entries are fake and therefore the proceedings cannot be forestalled. They further contend that even if the allotment is in existence the same deserves to be cancelled as it is in violation of the provisions of Section 195 read with Section 198 of the 1950 Act together with Rules 173 to 175 of the Rules as were then existing. They have further invited the attention of the Court to a report of the Assistant Consolidation Officer dated 27th January 2005 to substantiate their submissions. They contend that any amount of entries as claimed by the petitioners would not regularise their title as the very basis thereof does not exist.

Having heard learned counsel for the parties and having perused the records and appreciated the submissions, it appears that the name of the petitioners were sought to be expunged through summary proceedings or even otherwise ex-parte orders during consolidation operations as noted hereinabove. The same has been resisted by the petitioners. The present proceedings appear to have been initiated on account of the observations made in the judgement dated 20th January, 1995 to the effect that the petitioners cannot be dispossessed except otherwise than in accordance with law. The other observations which the authority has presumed to be the basis for proceeding, is the judgment dated 5.4.1996 quoted herein above, where it has been indicated that so long the allotment is not cancelled under Section 198 of the Act keeping in view the law of limitation and other legal provisions, the entries in favour of the petitioners cannot be expunged. It is for this reason that the petitioners were put to notice.

The first and foremost issue therefore is the fact relating to the prescription of limitation as indicated in Sub Section (6) of Section 198. If the authorities were proceeding on the basis of any complaint then limitation stands clearly attracted. So far as suo motu proceedings are concerned the authority has powers whenever any such fact is brought to its notice. This aspect however was discussed by a learned Single Judge in the case of Suresh Giri and others Vs. Board of Revenue and others. It was held that if there is an element of fraud then the limitation prescribed would not arrest the power of the authority to proceeded to take action. It has been held that the exercise of cancellation can be undertaken irrespective of the provisions of Sub Section (4) of Section 198. It was however held that in such circumstances so long as there is no fraud, the period of limitation prescribed under sub-section (6) of Section 198 in even suo motu proceedings would apply. The parties are at variance on the said judgment and the learned Standing Counsel contends that if fraud has been unearthed, then limitation cannot be an impediment for a suo-motu power to be exercised. The learned Standing Counsel may be correct in his submission but before the said contention is accepted, it is equally true that there has to be an element of fraud either suspected or deleted. Even suspicion has to be based on some proof and cannot be an imaginative doubt. Merely because in the opinion of the authority the allotment deserves to be reviewed as being irregular would not be sufficient to clear that there was an element of fraud.

It is thus clear that the authority will have to first determine its own jurisdiction in order to proceed to take suo motu action on the basis of such principles. The authority to proceed and the power to exercise jurisdiction therefore is dependant on the contingencies as indicated above. The impugned order in the opinion of the Court only records conclusions and a stray observation that since the submissions raised on behalf of the D.G.C. Revenue reflect ingredients for taking suo motu action, therefore the proceedings are not barred by limitation.

Suffice it to say, it is not only the submission of the D.G.C. Revenue but a positive opinion that has to be formed on the basis of material on record that such an opinion can be expressed. The authority cannot simply assume that whatever has been said by the D.G.C. Revenue reflects a doubt. The Additional Collector has indicated in one line that the argument pressed on behalf of the petitioners does not reflect a comparatively greater degree of force as against the argument of the D.G.C. Revenue and hence, the bar of limitation cannot impede his powers to proceed in the matter. The background in which the proceedings have been initiated have been narrated hereinabove. The Additional Collector should therefore have reflected on the past litigation that has ensued between the parties after contest before this Court.

Needless to re-emphasise that the issue of limitation and the nature of allotment in favour of the petitioners was also discussed in the judgment dated 5.4.1996. It was indicated therein that the stand of the State, that there was no approval of the proceedings in favour of the petitioners relating to allotment by the Sub Divisional Magistrate, was without any basis as no such order was required to be passed in the year 1954. At this juncture, it would be relevant to quote the then existing provisions of Section 194 to 198:-

194. Gaon Sabha to take over land after extinction of interest therein. - The Gaon Sabha shall be entitled to take possession of land comprised in holding or part thereof if -

(a) the land was held by a bhumidhar and the interest of the bhumidhar in such land is extinguished under clause (a) of section 18;

(b) the land was held by a sirdar and the interest of the sirdar in such land is extinguished under clause (a), (b), (C) or (e) of section 190; or

(c) the land, being land falling in any of the classes mentioned in section 132, was held by an asami and the asami has been ejected or his interests therein have otherwise extinguished under the provisions of this Act.

195. Admission to land. - The Gaon Sabha shall have the right to admit any person as sirdar to any land (other than land falling in any of the classes mentioned in section 132 where -

(a) the land is vacant land;

(b) the land is vested in the Gaon Sabha under section 117; or

(c) the land has come into the possession of Gaon Sabha under Section 194 or under any other provision of this Act.

196. Admission of intermediary as sirdar in vacant land in certain cases. - Where any land becomes vacant land under sub-clause (ii) of clause (b) of sub-section (2) of section 13, and if such land belonged on the date immediately preceding the date of vesting to an intermediary in whose sir hereditary rights have accrued under section 10, the Gaon Sabha shall on the application of such intermediary admit the applicant as sirdar to such land or portion thereof, so however that the applicant shall not as a result of such admission become entitled to land which together with land, if any, held by him will in the aggregate exceed 50 acres in Uttar Pradesh.

197. Admission to land mentioned in section 132. The Gaon Sabha shall have the right to admit any person as asami to any land falling in any of the classes mentioned in section 132 where -

(a) the land is vacant land;

(b) the land is vested in the Gaon Sabha ; or

(c) the land has come into the possession of the Gaon Sabha under section 194 or under any other provisions of the Act.

198. Order of preference in admitting persons to land under Sections 195 and 197. - (1) In admitting any person as sirdar or asami under section 195 or 197, the Gaon Sabha shall subject to the rules framed or order made by the court under section 178 or 237, observe the following order of preference -

(a) a landless agricultural labourer or an asami, residing in the circle, who does not hold any land whether as bhumidhar, sirdar or adhivasi,

(b) a bhumidhar, sirdar or adhivasi who is holding land less than 6 ¼ acres in area in the circle,

(c) a co-operative farm established under this Act holding land within the jurisdiction of the Gaon Sabha, to enable it to possess a suitable area of land, and

(d) any other person.

Provided that the land allotted to a co-operative farm under clause [(c)] shall, if the registration of such farm is cancelled within two years of the allotment, revert upon such cancellation to the Gaon Samaj, and any person holding or retaining possession of such land shall be deemed to be a person occupying it without title liable to ejectment under (b) of section 209 :

Provided further that in the cases to which [clause] (b) apply only so much land shall be allotted to such tenure-holder as shall be sufficient to bring the total area held by him to be six and a quarter acres.

Provided also that no person mentioned in clause (a) shall be admitted to less than 3 1/8 acres of land, if available, but in no case to more than 6 ¼ acres.

(2) Any person aggrieved by an order of the Gaon Sabha passed under sub-section (1) may file an objection before the Sub-Divisional Officer who shall hear and decide the same in such manner as may be prescribed."

The relevant rules relating to allotment being Rules 173 to 175 are also quoted herein below:-

"Rule 173. Admission to land. - Whenever the Land Management Committee intends to admit any person to land under section 195 or 197, it shall announce by beat of drum in the circle of the Gaon Samaj in which the land is situate, the numbers of plots, their areas and the date on which admission thereto is to be made.

Rule 174. [On the said date a meeting of the committee shall be held to prepare a list of all such persons who are present and express their desire to be admitted to the land. The Committee shall in the same meeting announce the revenue or the rent to be fixed for the land as also the names of the persons included in the list.]

Rule 175. [(1) Where more than one person belonging to the same order of preference mentioned in section 198 appear and express their desire to be admitted to the land at the revenue or rent fixed by the committee, the committee shall draw lots to determine the person to whom the land should be given and the person so determined shall before being admitted to the land, pay to the Land Management Committee an amount equal to ten times the rent of the land calculated at hereditary rates:

Provided that no such amount shall be payable by any person belonging to the class mentioned in clause (d) of sub-section (1) of section 198.]

(2) A quarter of the premium shall be payable immediately after the bid has been accepted and the balance within 15 days. Upon the failure of the highest bidder to pay a quarter of the bid or the balance, as the case may be, the next highest bidder who within the time specified by the Land Management Committee pays the amount of his bid shall be admitted to the land.

The difference between the bid made by the defaulter and the next lower bid shall be recoverable from the defaulter as arrears of land revenue or by deduction from the part of the premium if paid."

The aforesaid procedure therefore if followed would not vitiate the proceedings.

Learned counsel for the petitioners contends that even assuming that the lease in original was not produced, the petitioners have taken a clear case that the entire documents pertaining to the allotment was available in the Tehsil which fact has not been disputed by the respondents. In such a situation non-production of a lease by the petitioners would not invalidate the allotment. Even otherwise there is evidence on record to indicate the same. For this Sri G.N. Verma has invited the attention of the Court to the un-rebutted averments namely that the names of the petitioners are entered in Register Malikan which is also one of the main revenue records relating to title where the names of the tenure-holders stand entered. In relation to the allotment proceedings, he has relied on the document filed by the respondents in their affidavit dated 7.9.2006 through Sri Jagdamba Prasad Gupta, Tehsildar Sadar, where an extract of Register Ikrarnama has been filed. He submits that the said register is of the year 1954 which indicates the existence of the passing of the resolutions in favour of the petitioners or their predecessors in interest, which document is ample proof of the fact that proceedings of allotment had taken place on the basis whereof the entries were made in favour of the petitioners. He therefore contends that this aspect having been completely ignored the issue relating to cancellation on an absolutely weak suggestion or doubt cannot be permitted to proceed. It would be relevant to remember at this stage that during the intervening period that is after the passing of the impugned order herein above, the Consolidation Officer had passed an order for expunging the names of the petitioners in time barred objections filed by the Gaon Sabha under Section 9 of the U.P. Consolidation of Holdings Act, 1953. The said order was quashed on 2nd April, 2007 leaving it open to the authority to first decide the issue of limitation of filing of such an objection as well as on merits thereafter in accordance with law.

Learned Standing Counsel has not disputed the aforesaid status of the litigation of the Gaon Sabha itself and as such the same also has now become a relevant factor for consideration. These aspects and the material as indicated above have nowhere been discussed in the impugned order.

Learned Standing Counsel has relied on the decision in the case of Kishnu Pal & others Vs. Sheesh Pal & others, 2011 (113) RD Pg. 731. The said decision appears to be based on the full bench decision of the Board in the case of Virendra Singh Vs. State of U.P., 1994 RD Pg. 540, where it was held that where suo motu proceedings are undertaken the period of limitation prescribed will not apply. The proceedings in the instant case have been undertaken in the year 2001. The period of limitation has been introduced as presently involved by U.P. Act No. 24 of 1986. The impact of the Full Bench decision of the Board as also the introduction of the provisions have also not been discussed by the learned Additional Collector. In the absence of non-consideration of the relevant law on the subject the order is vitiated.

There is no indication or forming of any opinion on fraud nor any material has been indicated as to how and who has committed the fraud. In the opinion of the Court, fraud is not a simple term or an ornamental expression. It is a serious allegation which has to be established on proof and relevant material and the material therefore should exist for taking action while alleging fraud. This enquiry was necessary by the Additional Collector as the same would be material for taking either suo motu action or otherwise against the petitioners. What is fraud has been indicated in a large number of decisions of the apex court which have been noticed by me in one of the decisions rendered in the case of Mangaroo & Ors. Vs. D.D.C. & Ors., 2011 (4) ADJ 798. Another decision of the apex court that can be referred to is 2005 (6) SCC pg. 100, State of Andhra Pradesh Vs. T.S. Rao (Paragraphs 8 to 16).

In view of the discussions herein above, the impugned order or even the revising order does not take notice of the ingredients referred to hereinabove and hence they cannot be sustained.

The other issues relating to existence of evidence and the position of law as was then existing has also not been noticed in the impugned order. It is thus clear that before proceeding to hold that the proceedings suo motu can be initiated the authority has not recorded any satisfactory opinion which is required to be done especially in cases of suo motu action. The long standing entries in favour of the petitioners had been taken notice of by this Court in the judgment dated 5.4.1996 and all this material was in existence, yet no reference has been made in relation to that in the conclusion drawn by the authority. I am therefore of the opinion that the impugned order having not noticed the relevant issues and evidence and facts involved, and having not recorded a prima facie firm opinion of the existence of any material to take suo motu action, the orders deserve to be quashed.

Accordingly, the writ petition is allowed. The orders dated 26th March, 2003 and 10th March, 2003 are quashed. The Additional Collector - respondent no. 2 shall be at liberty to pass fresh orders in the light of the observations made hereinabove after giving an opportunity of hearing to the petitioners in accordance with law.

Dated: 29.8.2011

Sahu