Allahabad High Court
Sitaram Yadav vs State Of U.P. And 46 Others on 11 August, 2023
Bench: Chandra Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:163370
Court No. - 51
Case :- WRIT - C No. - 15020 of 2023
Petitioner :- Sitaram Yadav
Respondent :- State Of U.P. And 46 Others
Counsel for Petitioner :- Ram Anuj Prajapati
Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi
Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Ram Anuj Prajapati, learned counsel for the petitioner, Ms. Arpita Chakraborty, learned Standing Counsel for the State-respondents and Mr. Bhupendra Kumar Tripathi, learned counsel for the respondent- Gaon Sabha.
2. Learned counsel for the petitioner submitted that the lease executed in favour of the private respondent in the year 1977 was not in accordance with law. He further submitted that the petitioner is in possession of the plot in dispute and the plot was not vacant at the time of execution of lease in favour of the private respondent. He next submitted that the application for cancellation of lease has been filed in the year 2008. He also submitted that the application for cancellation of lease has been dismissed by respondent no.2 and revision filed by against the order of respondent no.2 has been also dismissed in arbitrary manner. He further submitted that the procedure prescribed for grant of lease has not been followed and the entire proceeding was conducted against the provision of U.P.Z.A. & L.R. Act and the Rules framed thereunder, accordingly, lease was liable to be cancelled but the impugned order has been passed in arbitrary manner, as such, the same are liable to be set aside.
3. Ms. Arpita Chakraborty, learned Standing Counsel for the State-respondents and Mr. Bhupendra Kumar Tripathi, learned counsel for the respondent- Gaon Sabha submitted that the application for cancellation has been filed after 31 years, as such, the same has been rightly rejected by the Court. They further submitted that the lease holders have been recorded as bhumidhar with transferable right due to operation of law, as such, no interference is required against the impugned order.
4. I have considered the argument advanced by learned counsel for the parties and perused the record.
5 There is no dispute about the fact that the lease was executed in favour of private respondents in the year 1977 and the private respondents are recorded as bhumidhar with transferable right on the basis of lease executed in the year 1977.
6. In appreciate the controversy involved in the matter, perusal of Section 198 (6) of U.P.Z.A. & L.R. Act and provisions of Section 128 (1-A) of U.P. Revenue Code, 2006 are relevant, which are as follows:
"Section 198 (6) of U.P.Z.A. & L.R. Act
(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 on 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 ever be later].
Section 128 (1-A) of U.P. Revenue Code, 2006
"(1-A) Any application under sub-section (1) may be moved in the case of an allotment of land made before the commencement of this Code, within five years from the date of such commencement and in the case of an allotment of land made on or after the date of such commencement, within five years from the date of such allotment or lease."
7. Perusal of the provisions, quoted above, demonstrates that the proceeding for cancellation of lease are to be initiated within the prescribed period of limitation.
8. In the instant matter, the proceeding has been initiated after 31 years from the execution of the lease deed, as such, the Court under the impugned order has rightly rejected the petitioner's application as barred by limitation.
9. This Court in the case reported in 2018 (140) RD 1 (Rishi Pal & Others Vs. State of U.P. & Others), has considered the scope of Section 198 (6) of U.P.Z.A. & L.R. Act and has held that the proceeding for cancellation of lease cannot be initiated after the prescribed period of limitation. Paragraph nos.7 to 13 of the judgment are relevant, which are as follows:
"7. Having heard the learned counsel for the parties, I am of the view that the orders dated 1.6.2011 and 23.3.2012 cannot be sustained and are to be quashed.
The pattas were executed in the year 1992. Under Sub-section (6) of Section 195 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the complaint which was filed in the year 2003-04 was barred by limitation by almost six years.
8. Further, I hold that since the question of limitation goes to the very root of the matter, even though it was not agitated before the courts below, it can definitely be raised here in this Court. Section 3 of the Indian Limitation Act would also be relvant. The same is being reproduced here as under:
9. "Section 3.- Bar of limitation - (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purpose of this Act, -
(a) A suit is instituted, -
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter-claim, shall be treated as a separate suit and shall be deemed to have been instituted -
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;
(ii) in the case of a counter-claim, on the date on which the counter-claim is made in Court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court"
10. The question of limitation had to be therefore looked into by the Court even if he dendant /opposite party had not raised it.
11. Further, after the application which was filed by Hardas was dismissed for non prosecution then he alone could have filed the application for restoration. State was a party whose actions were being adjudicated upon in the complaint which was filed by Hardas. It could not therefore, have supported the restoration application of Hardas.
12. The writ petition is, therefore, allowed. The orders dated 1.6.2011 and 23.3.2012 are quashed.
13. It is made clear that this relief would be confined to the petitioners who had filed the instant writ petition."
10. Considering the ratio of law laid down in Rishi Pal (supra) as well as the provisions contained under the U.P.Z.A. & L.R. Act & U.P. Revenue Code, 2006, no interference is required against the impugned order.
11. The writ petition is dismissed, accordingly.
Order Date :- 11.8.2023
Rameez
