Prabhu And 4 Others vs State Of U.P. And 3 Others
2021 Latest Caselaw 10422 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 42
 

 
Case :- WRIT - C No. - 64568 of 2014
 

 
Petitioner :- Prabhu And 4 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Dinesh Sengar,Dinesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Anand Yadav,Pradeep Chandra
 

 
Hon'ble Vivek Kumar Birla,J.

Order on Delay Condonation Application No. 5 of 2019

Heard learned counsel for the applicant and the learned Standing Counsel for the State.

No one is present on behalf of the private respondent.

Cause shown is sufficient.

Delay in filing the substitution application is condoned.

Delay condonation application is allowed.

Order on Substitution Application No. 6 of 2019

Cause shown is sufficient.

Substitution application is allowed.

Office is directed to carryout necessary amendment in the array of parties within a week.

Order on Petition

Heard learned counsel for the petitioners and the learned Standing Counsel for the State.

Present petition has been filed seeking following relevant prayer:

"a) issue a writ, order or direction of the nature of Mandamus commanding the respondent no. 1 and 2 to pass appropriate order to insert the entry of the order dated 16.12.2011 passed by this Hon'ble Court In Writ Petition No. 1364 of 2007 in the annual register (KHATAUNI) of the land allotted to petitioners by the resolution dated 8.2.1976 by Gram Panchayat Nadai, Tehsil Kalpi District Jalun.

b) issue any other suitable writ order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case and award cost of the petition.

c) issue a writ order or direction of the nature of certiorari to quash the impugned order dated 9.12.2004 in case no. 2 of 2004-05 Dharam Singh vs. Jiya Ram & Another [U/s 198(4) of the UP Z.A.& L.R. Act] passed by Court of Collector, Jalaun at Orai and impugned order dated 5.8.2006 in Revision No. 10 of 2004-05 [U/s 198(4) R/w 333 of UP Z.A. & L. R. Act] passed by Court of Additional Commissioner (Judicial) Jhansi (Annexure No. 5 and 6 of the writ petition)."

Attention of the Court has been drawn to the order dated 18.7.2019 passed by this Court in Writ C No. 39898 of 2013, which is as follows:

"Rejoinder affidavit filed today is taken on record.

Heard learned counsel for the petitioners and learned Standing Counsel for the State as well as learned counsel appearing for the Gaon Sabha.

By means of the present writ petition, the petitioners have challenged the order dated 5th August, 2006 passed in revision No.- 10 of 2004-05 by the Additional Commissioner (Judicial) Jhansi as well as the order dated 9th December, 2004 passed in Case No.- 2 of 2004-05 (Dharm Singh v. Jiyaram and others).

It is borne out from the records that the respondent No.5 has already died and there is no substitution of the same. From the record it transpires that the respondent No.5 was only a complainant. In view of the fact that the controversy relates to the allotment of land and the rights of the Gaon Sabha are fully protected by its counsel and state's rights are fully protected by learned Standing Counsel, the mere fact that the complainant has died, heirs need not to be substituted and the case can be decided on the basis of the pleadings available on record.

Learned counsel for the petitioner has submitted that the allotment proceedings were questioned under Section 198(4) of U.P.Z.A.& L.R. Act, 1950 and while passing the order in the said proceedings the Collector, Jalaun had directed that as far as the men related to scheduled caste and scheduled tribe's category are concerned, their claim may be considered in the light of the provision as contained under Section 122-B (4-F) of U.P.Z.A.& L.R. Act, 1950 for the settlement of the land in their favour and regarding other candidates/ allottees it was directed that their eligibility may be examined and if they are found to be eligible then the allotment be made in their favour and the consequential action be taken.

This order passed by the Collector, Jalaun dated 9th December, 2004 to which the petitioner was also party came to be challenged by as many as 39 lease holders by means of revision bearing No. 19 of 2004-05. However, the Court sitting in revision did not find any fault with the order passed by the Collector and, therefore, dismissed the revision.

The order passed by the Additional Commissioner rejecting the revision came to be challenged along with the order passed by the Collector, Jalaun vide Writ- C No.- 1364 of 2007 by 17 petitioners and the said writ petition came to be allowed vide detailed judgment and order dated 16th December, 2011.

In the said writ petition while allowing the petition the Court has held thus:-

"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."

On a pointed query being made to the learned Standing Counsel as to whether the controversy involved here is the same one as in the judgment passed by this Court in writ petition quoted hereinabove, learned Standing Counsel did not dispute and submits that the allotment proceedings are one and the same in respect of the same village and district.

In view of the above, this writ petition is also disposed of in terms of the judgment and order dated 16th December, 2011 passed in Writ-C No.- 1364 of 2007."

Learned counsel for the petitioner submits that the controversy involved in present case is squarely covered by the aforesaid order.

Learned Standing Counsel agrees that the relief as prayed for in the present petition is covered by the above said order.

Accordingly, present petition stands disposed of in the same terms of above quoted order. The impugned orders dated 9.12.2004 and 5.8.2006 are hereby quashed.

Order Date :- 17.8.2021

Kuldeep