Allahabad High Court
Aadinath Probuild India Private ... vs State Of U P And 8 Others on 7 November, 2024
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:174390
Judgment Reserved On : 09.07.2024
Judgment Delivered On : 07.11.2024
Court No. - 69
Case :- WRIT - C No. - 22175 of 2018
Petitioner :- Aadinath Probuild India Private Limited
Respondent :- State Of U P And 8 Others
Counsel for Petitioner :- Anil Kumar Mehrotra,Manu Srivastava,Srijan Mehrotra
Counsel for Respondent :- Abhishek Tripathi,Alok Kumar Yadav,C.S.C.,Kartikeya Saran,Krishna Kant Dwivedi,Pradeep Kumar Sinha
With
Case :- WRIT - C No. - 22313 of 2018
Petitioner :- M/S U.M Architectures And Contractors Limited
Respondent :- State Of U P And 8 Others
Counsel for Petitioner :- Anil Kumar Mehrotra,Krishnaji Khare,Rakesh Kumar Singh,Shivam Yadav,Srijan Mehrotra
Counsel for Respondent :- C.S.C.,Kartikeya Saran
Hon'ble Ashutosh Srivastava,J.
1. Both the above referred writ petitions involve identical question of law and facts. The Writ-C No. 22175 of 2018 is being treated as the leading writ petition and the facts pertaining to the same are being considered for deciding the controversy involved.
2. Heard Sri Sanjay Goswami along with Sri Anil Kumar Mehrotra and Sri Manu Srivastava, learned counsel for the petitioners, Sri Alok Kumar Yadav, learned counsel for Respondent No. 7, Sri Ram Krishna, learned counsel for Respondents Nos. 6 & 8 and Sri Kartikeya Saran, learned counsel for Respondents Nos. 4 and 5.
3. The writ petition arises out of proceedings under Section 198(4) of the UPZA & LR Act, 1950 and has been filed questioning the legality, propriety and correctness of the order dated 18.06.2018 passed by the Collector, Ghaziabad whereby and whereunder exercising powers under Section 198(4) of the UPZA & LR Act, 1950 the allotment proceedings in respect of Khasra Plot No. 525 area 0.6580 hectares, Khasra Plot No. 526 area 2.9210 hectares and Khasra Plot No. 527 area 0.6530 hectare situate in Village Mahiuddinpur Kanawani, Pargana Loni, Tehsil and District Ghaziabad by the Land Management Committee under its resolution dated 26.06.1994 and its approval by the Sub Divisional Officer, Dadri dated 30.06.1994 has been set aside and the plots have been restored as Banjar in the name of the Gaon Sabha.
4. The facts giving raise to the controversy involved in the instant writ petition briefly stated are that the writ petitioner is a Private Limited Company registered under the Companies Act, 1956. The dispute relates to Khasra Plot No. 525, 526 and 527 situate in village Mohiuddinpur, Kanawani, Teshil Sadar, District Ghaziabad. The village was initially part of District Gautam Buddh Nagar till November, 2015 and thereafter came under District Ghaziabad. The plots were recorded as Banjar in the revenue records and vested with the Gaon Sabha. A claim in respect of the plots aforementioned was raised in a Suit being Suit No. 52 of 1980 under Section 229-B of the UPZA & LR Act. The suit travelled upto the Apex Court and the claim of the plaintiff was negated whereas the claim of the Gaon Sabha was upheld. The Land Management Committee Mohiuddinpur Kanawani in its meeting dated 26.06.1994 resolved to allot the plots an agricultural leases in favour of 22 eligible persons. The Sub Divisional Officer, Dadri after considering the proposal of the Land Management Committee approved the allotment of the plots in question in favour of 11 persons vide approval order dated 30.06.1994. Pursuant to the allotment the concerned allottees were put in possession over the respective plots allotted to them.
5. Proceedings under Section 198(4) of the UPZA&LR Act were initiated on the Application made by one Ram Kishan along with other persons seeking cancellation of the allotment made in favour of the 11 persons. Case No. 51 of 1998 (Ram Kishan and others Vs. Hukum Singh and others) in the Court of Additional Collector (LR) Gautam Buddh Nagar was registered. Another case being Case No. 13 of 2000 (Dhani Ram and others Vs. Chaman Singh and others) was also registered in the Court of Additional Collector (LR) Gautam Buddh Nagar. The Additional Collector (LR) Gautam Buddh Nagar rejected both the cases 51 of 1998 as also 13 of 2000 vide order dated 17.07.2002. The order dated 17.07.2002 was assailed in two Revisions i.e. Revision No. 57 of 2001-02 (Dhani Ram and others Vs. Chaman Singh and others) and Revision No. 53 of 2001-02 (Ram Kishan and others Vs. Hukum Singh & others) before the Additional Commissioner, Meerut Division Meerut. The Additional Commissioner dismissed both the revisions vide order dated 31.03.2003. Two writ petitions being Writ Petition No. 17239 of 2003 and Writ Petition No. 20618 of 2003 were filed assailing the order dated 31.03.2003. In the Writ Petition No. 17239 of 2003, no interim order was passed by this Court while entertaining the writ petition. In the Writ Petition No. 20618 of 2003, an interim order not to change the nature of the land involved in the writ petition was passed, initially for a time bound period, however, the interim order was not extended, thereafter. Both the writ petitions are pending adjudication before this Court and have been tagged with the present writ petition.
6. Meanwhile, in the interregnum the allottees filed an Application under Section 131-B of the UPZA & LR Act, 1950 for grant of Bhumidhari with transferable rights before the Sub Divisional Officer, Dadri, District Gautam Buddh Nagar which was registered as Case No. 6/05/02/06 village Mohiuddinpur Kanawani (Hukum Singh & others Vs. State of U.P. & others). The Sub Divisional Officer vide order dated 18.09.2006 granted the Bhumidhari with transferable rights to the Allottees Hukum Singh and others (11 Allottees) in respect of the plots detailed in Para 37 of the writ petition. Thereafter the 11 Allottees moved application under Section 143 UPZA & LR Act, 1950 and the Sub Divisional Officer, Dadri declared the plots allotted to the allottees as non agricultural. After obtaining the declaration under Section 143 of the UPZA & LR Act, 1950 the 11 Allottees transferred their respective shares by executing different sale deeds in favour of different persons. The petitioner purchased an area of 1644.02 sq. mtrs. of Plot No. 525 of Maniram (Allottee) who had transferred the same to one Vishal through sale deed who in turn sold the same to the petitioner under a registered sale deed. Maniram the original allottee transferred another part of Khasra No. 525 area 1644.02 sq. mtrs. in favour of one Vinay Kumar Jain, who in turn transferred the same to the petitioner under a registered sale deed. Likewise, an area of Plot No. 525 was transferred by Smt. Vishambhari wife of Sevaram (Allottee) to one Abhai Narain, who in turn transferred the same in favour of the petitioner.
7. The petitioner after purchasing the land i.e. Plot No. 525 submitted a Map before the Ghaziabad Development Authority and got the same sanctioned from the Ghaziabad Development Authority in respect of building proposed to be constructed over Khasra Plot Nos. 525 and 520/1 of Village Mohiuddinpur Kanawani. The Ghaziabad Development Authority has sanctioned the Map vide order dated 19.05.2014.
8. At this stage of the proceedings the Respondent Nos. 6 to 9 filed an Application under Section 198(4) of the UPZA & LR Act praying inter-alia for cancellation of the orders dated 26.06.2014 and 30.08.2014 whereby the proposal and allotment of land was made in favour of 11 Allottees including the predecessor in interest of the petitioner. A case No. D2014270025555 was registered before the Collector, Gautam Buddh Nagar. Since the petitioner was already in possession over the land, the Respondent No. 6 made repeated Applications to the Collector for restraining the petitioner from raising constructions. The Respondent Nos. 6 to 9 also approached this Court by means of Writ Petition No. 2643 of 2015 which writ petition was disposed of with a direction to decide the stay application of the Respondent Nos. 6 to 9 within a period of four months and restraining the petitioner to raise constructions vide its order dated 27.02.2015. The Collector, Gautam Buddh Nagar proceeded to finally decided the case and vide order dated 09.07.2015 allowed the Case No. D2014270002555 and directed for the cancellation of the orders dated 26.06.1994 and 30.06.1994. Since the order had been passed without hearing the petitioner on an Application dated 27.07.2015 moved by the petitioner,the Collector proceeded to recall the order dated 09.07.2015. The order dated 09.07.2015 was assailed in Writ Petition N. 43944 of 2015 by the Respondent Nos. 6 to 9. The writ petition was disposed of vide order dated 02.11.2015 by directing the Collector/ Respondent No. 2 to decided the case No. D2014270025555 afresh .The order dated 02.11.2015 was upheld by the Apex Court vide order dated 07.04.2017 passed in SLP No.33243 of 2015. The Case No. 201427002555 was directed to be decided within two months and meanwhile status-quo was directed to be maintained.
9. In the interregnum the concerned Village Mohiuddinpur Kanawani which as earlier part of District Gautam Buddh Nagar came under territorial jurisdiction of District Ghaziabad sometime in November, 2015. The records of the Case No. D201427002555 was transferred to District Ghaziabad and renumbered as Case No. 2610 of 2017.
10. The Collector, Ghaziabad/Respondent No. 3 on the receipt of the records of the case and completely overlooking the stand of the petitioner taken in opposition to the proceedings under Section 198(4) passed an order dated 18.06.2018 whereby and whereunder the Application under Section 198(4) registered as Case No. 2610 of 2017 was allowed and the allotment order dated 26.06.1994 of the Land Management Committee and the approval order dated 30.06.994 of the Sub Divisional Officer, Dadri were set aside.
11. Learned counsel for the petitioner submits that the proceedings for cancellation of agricultural lease initiated under Section 198(4) of the UPZA & LR Act against the predecessor in interest of the petitioner was totally unwarranted and were non maintainable in view of sub Section (5) and (6) of Section 198 of the UPZA & LR Act. The allotment was made strictly in accordance with law and manner prescribed and approval was also granted vide order dated 30.06.1994. Bhumidhari rights had already been conferred under Section 131-B of the Act and thereafter land was also declared non agricultural under Section 143 of the Act. The petitioner is a bonafide purchaser for consideration. It is, accordingly, prayed that the impugned order be set aside and the writ petition allowed as prayed.
12. From the perusal of the order sheet of the present writ petition it is borne out that the instant writ petition was entertained despite their being an alternative remedy of filing a Revision before the Commissioner, Meerut Division, Meerut or before the Circuit Bench of the Board of Revenue, Meerut as contemplated by Section 333 of the UPZA & LR Act, 1950.
13. The respondents have filed counter affidavit in opposition to the writ petition.
14. A counter affidavit has been filed on behalf of the Collector, Ghaziabad/Respondent No. 5 sworn by Neeraj Kumar Dwivedi posted as Naib Tehsildar, Ghaziabad, wherein it has been stated that Khasra Plot No. 525 (0.6580) Khasra Plot No. 526 (2.9210) and Khasra Plot No. 527 (0.6530) are Gaon Sabha Land recorded as Banjar and the allotment order dated 26.06.1994 as well as the approval order dated 30.06.1994 have been set aside in proceedings under Section 198(4). The Collector has suo-moto powers to cancel the allotment made under Section 198(4) of the Act. The writ petition is liable to be dismissed on the ground of alternative remedy.
15. In the counter affidavit filed by the Development Authority i.e. Respondent Nos. 4 and 5 besides submitting that the petitioner has an effective alternative remedy of filing a Revision before the Board of Revenue at Meerut, the Khasra Nos. 525, 526 and 527 have through out vested in the Goan Sabha Mohiuddinpur Kanawani, Tehsil Sadar District Ghaziabad till creation of rights post the allotment. However, vide the impugned order dated 18.06.2018 the order dated 26.06.1994 of the Land Management Committee as also the order dated 30.06.1994 approving the allotment have been set aside with further direction to transfer land to the Goan Sabha and restore the previous position. Since the rights of the petitioner in respect of the Khasra No. 525 area 0.6580 Hectare, has been turned down, the Respondent Nos. 4 and 5 have informed the writ petitioner by letter dated 27.06.2018 to submit an amended Map isolating the Khasra No. 525 from the sanctioned Map in default of which suitable action would be taken against the petitioner under the U.P. Urban Planning and Development Act, 1973.
16. A counter affidavit has also been filed by the Contesting Respondent Nos. 6 and 8 through Sri Ram Krishna learned counsel. In the counter affidavit filed by the Respondent Nos. 6 and 8 the stand taken is that the claim of the petitioner is confined to Khasra No. 525 only and Plot Nos. 526 and 527 relate to another Company viz M/s V.M. Architectures and Contractors Limited (Petitioner in the connected Writ Petition No. 22313 of 2018). The respondents had filed case No. D201427002555 (subsequently renumbered as Case No. 2610 of 2017) on their own espousing the cause of the Gaon Sabha. The alleged proposal dated 26.06.1994 and approval dated 30.06.1994 were found to be fictitious and illegal. The plots in question were in possession of Radhey Shyam and thereafter his heirs till 02.02.2007 and at the time of allotment the land was not vacant as required under Section 195 (1)(a) of the UPZA & LR Act. Further the allotment and approval were not done in the prescribed manner and allotment was made to ineligible persons. The allottees of the land were never put in physical possession of the land. Since the allotment of the land in favour of the 11 persons itself was fictitious, conferment of Bhumidhari rights to them and declaration under Section 143 of the Act was illegal. Out of the 11 allottees, Serial Nos. 1 to 9 belongs to SC category and rest to OBC category. All allottees were conferred Bhumidhari with transferable rights. The persons belonging to the SC category could not have sold their land without permission of the Collector and no such permission was obtained and the sale deeds were void. There is no illegality in the impugned order which is just and proper. It is, accordingly, prayed that the writ petition is liable to be dismissed with costs.
17. In the counter affidavit filed by the Respondent No. 7 it has been stated that the writ petition at the instance of the petitioner is not maintainable in as much as the allottees against whom the order dated 18.06.2018 has been passed by the Respondent No. 3 has neither been impleaded as petitioner or respondent in the writ petition. The Gaon Sabha concerned has also not been impleaded as a party and as such the writ petition warrants outright dismissal on the ground of misjoinder of parties. It may be stated here that the petitioner under the order dated 23.12.2018 impleaded the Allottees as also the Gaon Sabha as party respondent to the writ petition. The writ petition is not maintainable in view of the effective alternative remedy available to the petitioner. The order of the Apex Court dated 11.05.2012 passed in SLP (Civil) No. 26256-26257 of 2011 (Siddharth and others Vs. State of U.P.) arising out of Writ Petition No. 17405 of 1994 (Smt. Shakuntala Devi Vs. Board of Revenue and others) had not expressed any opinion about the entitlement of the rights of the applicants therein at whose instance the order dated 11.05.2012 had been passed and left it open for adjudication. The agricultural leases executed in favour of the 11 allottees were irregular in as much as allotment were made without ascertaining the preferential category as envisaged under Section 198 of the UPZA & LR Act and without complying with the formalities as mentioned in para 172 to 177 of the Rules framed under the Act. The declaration under Section 131-B and 143 of the Act would not oust the jurisdiction of the Collector to examine the validity of the leases under Section 198 (4) of the Act.
18. The petitioner has filed rejoinder affidavits to the respective counter affidavits controverting the stand taken in the respective counter affidavits. A supplementary affidavit dated 08.07.2024 was filed by the petitioner bringing on record the certified and photocopy of the order dated 04.07.1994 (alleged to be 04.01.1994) passed by the Civil Judge Senior Division in Original Suit No. 692 of 1994 (Radhe Shyam Vs. State of U.P.) to demonstrate that the Original Suit was instituted on 01.07.1994 and the finding returned in the impugned order dated 18.06.2018 that allotment was made during the subsistence of the interim order is perverse and against the materials on record.
19. From the pleadings of the parties and taking into consideration the respective stands and on perusal of the records the following questions crop up for consideration by the Court. Adjudication of the questions would settle the lis between the parties:
(1) Whether the writ petition is maintainable in the wake of availability of an effective alternative remedy of revision under Section 333 of the UPZA & LR Act ?
(2) Whether the proceedings for cancellation of the Agricultural lease in favour of the allotteees under Section 198 (4) of the UPZA & LR Act would be maintainable even beyond the period prescribed by Section 198 (6) of the UPZA & LR Act on the allegation that the allotment was irregular or tainted by fraud ?
(3) Whether the conferment of Bhumidhari with transferable rights under Section 131-B of the UPZA & LR Act and declaration thereafter under Section 143 of the UPZA & LR Act would oust the jurisdiction of the Collector of his powers under Section 198 (4) of the UPZA & LR Act, rendering the entire proceedings drawn against the petitioner/ allottees not maintainable ?
20. I have heard the learned counsels for the parties and have perused the records.
21. Now coming to the first question about maintainability of the writ petition in the wake of availability of an effective alternate remedy available to the petitioner is concerned the Court finds that the impugned order dated 18.06.2018 has been passed in purported exercise of Powers under Section 198 (4) of the UPZA & LR Act. Section 198 (4) of the UPZA & LR Act, 1950 provides as under
"(4)[ The [Collector] [Substituted by U.P. Act No. 20 of 1982 (w.e.f. 18.08.1980).] may of his own motion and shall on the application of any person aggrieved by an allotment of land inquire in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular, he may cancel the allotment and the lease, if any."
22. Section 198 (8) provides that every order made by the Collector under sub Section (4) shall, subject to the provisions of Section 333, be final.
23. Learned counsels for the respondents have argued that Section 198 (8) of the Act provides a remedy for assailing an order passed under Section 198 (4) of the Act and as such the writ petition was not liable to be entertained in the wake of existence of a effective alternative remedy.
24. Refuting the above contention learned counsel for the petitioner submits that the order dated 18.06.2018 of the Collector has been challenged on the ground of lack of jurisdiction in view of the Bhumidhari rights conferred upon the predecessor in interest of the petitioner under Section 131-B of the Act as also the declaration made under Section 143 of the Act and thereafter the land having been transferred to the petitioner under a registered sale deed. It is contended that the lack of jurisdiction goes to the root of the matter and hence there can be no bar to straight away challenge the same in writ proceedings. Reliance has been placed upon Para 9 of the decision of the Apex Court rendered in the case of Budhia Swain and others Vs. Gopinath Deb and others) reported in 1999 (4) SCC 396 reproduced below:-
"A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. In Hira Lal Patni Vs. Sri Kali Nath, AIR 1962 SC 199, it was held :-
".......The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it."
25. It has also been argued that this Court vide its order dated 11.11.2019 has already negated the claim of the respondents as to non-maintainability of the writ petition on the ground of alternative remedy recording the reasons for entertaining the writ petition. There appears to be no occasion to take a different view. It would be apt to quote paras 13, 20 and 21 of a decision of the Apex Court rendered in the case of L. K. Verma Vs. HMT Limited and another, AIR 2006 Sc 975 in this regard.
"13. It is true that in terms of sub-rule (3) of Rule 14 of the Rules an appeal was maintainable before the State Government. But it is well settled, availability of an alternative forum for redressal of grievances itself may not be sufficient to come to a conclusion that the power of judicial review vested in the High Court is not to be exercised.
20. The High Court in exercise of its jurisdiction under Article 226 of the Constitution, in a given case although may not entertain a writ petition inter alia on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. Despite existence of an alternative remedy, a writ court may exercise its discretionary jurisdiction of judicial review inter alia in cases where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right or if there has been a violation of a principle of natural justice or where vires of the act is in question. In the aforementioned circumstances, the alternative remedy has been held not to operate as a bar. [SeeWhirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others, (1998) 1 SCC 1, Sanjana M. Wig (Ms.) v. Hindustan Petroleum Corpn. Ltd., (2005) 8 SCC 242, State of H.P. and Others v. Gujarat Ambuja Cement Ltd. and Another (2005) 6 SCC 499].
21. In any event, once a writ petition has been entertained and determined on merit of the matter, the appellate court, except in rare cases, would not interfere therewith only on the ground of existence of alternative remedy. [See Kanak (Smt.) and Another v. U.P. Avas Evam Vikas Parishad and Others, (2003) 7 SCC 693]. We, therefore, do not see any justification to hold that the High Court wrongly entertained the writ petition filed by the Respondent."
26. In view of the above the objection of the respondents as to the non-maintainability of the writ petition in the wake of existence of an effective alternate remedy of Revision under Section 333 of the UPZA & LR Act is liable to be turned down as is accordingly turned down. The writ petition is held to be maintainable.
27. Now coming to the Question No. 2 i.e. whether the proceedings for cancellation of the Agricultural lease in favour of the allottees under Section 198 (4) of the UPZA & LR Act would be maintainable even beyond the period prescribed by Section 198 (6) of the Act, on the allegation that the allotment was irregular or tainted by fraud. It has been argued by the learned counsel for the petitioner that the proceedings purported to be initiated under Section 198 (4) of the Act in pursuance of an application dated 26.06.2014 after nearly 20 years of the allotment and as such was not maintainable in view of Section 198 (6) of the Act. Learned counsel for the contesting respondents have argued that the leases had been obtained by the allottees who were not eligible for grant of the leases and had played fraud upon the authorities to obtain the leases, the period of limitation provided under Section 198 (6) of the Act, 1950 would not be attracted and the Collector was well within his powers to reopen the grant of the leases and set it aside having found it to be irregular.
28. The Court has gone through the impugned order dated 18.06.2018 and finds that no finding has been recorded therein regarding any fraud played by the allottees, rather the leases have been cancelled on the ground that it was not in favour of the eligible persons and that the land was not vacant at the time of allotment. On the question of limitation and fraud in the opinion of the Court the issue is no longer Res-Integra and stands settled by a series of decisions of this Court. In the case of Smt. Shakuntala and 25 others Vs. State of U.P. and 3 others, Writ-B No. 33761 of 2014 decided on 10.05.2019 the issue was dealt with extensively. The relevant paras of the decision is being reproduced here under:-
" .................... It is thus clear from a plain reading of Section 198(6) (b) that in the cases where the allotment of the land is made on or after 10th November 1980 a show cause notice proposing to cancel the lease can be issued only within a period of five years from the date of allotment or upto 10th November 1987 whichever is later. The said limitation is prescribed for exercise of power by the Collector where the allotments are made in an irregular manner under Section 198(4) of the Act. In the present case applications were filed by the third persons alleging that huge irregularities were committed while allotting the land and a prayer was made for exercise of powers under Section 198(4) for cancellation of the lease. The said power for cancelling the lease, in the cases, where allegations are made alleging irregularity while allotment can be exercised only within the period of five years prescribed from the date of the allotment or upto 10th November 1987. In the present case, the land was allotted on 11.6.1997 and thus the show cause notice could be issued only upto 10.6.2002 and not thereafter. The action of divesting anybody of its rights in land is confiscatory in nature and thus the statutory enactment pertaining to limitation has to be strictly interpreted.
From the plain reading of Section 198(6)(b) of the Act, it is clear that the power of cancellation/issuance of show cause notice can be done only within the limitation as prescribed and not thereafter. The proceedings in the present case having been initiated after about 12 years are clearly barred by limitation thus rendering the entire proceedings as without jurisdiction."
The last question is to be considered whether no limitation is applicable where the allegations of fraud exists. I have already held in foregoing paras that the allegations of fraud were not existent. However, even if the allegations of fraud are existent the question to be considered is whether any limitation period is applicable or not. The Hon'ble Supreme Court considered the said question in the case of Joint Collector Ranga Reddy District and another vs. D. Narsing Rao and others, 2015 3 SCC 695 and held as under: -
"25. The legal position is fairly well-settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power, revisional or otherwise, such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference in so far as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period.
31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.
32. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant-State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed."
Thus even the Supreme Court has held that even in the cases of fraud the action should be taken within a reasonable time. In the present case, the action has been taken after a period of 12 years which cannot be termed as reasonable time and thus I hold that even in the cases of fraud action has to be taken within the period of limitation. Thus, I summarize the findings in response to the questions framed as under:
(A) A show cause notice proposing cancellation of the lease on the ground of material irregularity while granting the lease cannot be issued beyond the period of limitation prescribed under Section 198(6) of the Act.
29. In Writ-C No. 25703 of 2013 (Chhedda and 5 others Vs. State of U. P. and 5 others) decided on 17.07.2019 this Court held as under:-
".............. In this regard, it is relevant to mention that the Hon'ble Supreme Court has categorically held that where no limitation is prescribed action should be taken within a reasonable time, in the present case the proceedings were initiated after about 16 years which can never be termed as a reasonable period. The relevant observation of the Supreme Court in the case of Joint Collector Ranga Reddy District and another Vs. D. Narsing Rao and others, 2015 3 SCC 695 and held as under:
"25. The legal position is fairly well-settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power, revisional or otherwise, such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference in so far as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period.
31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.
32. In the case at hand, while the entry sought to be corrected is described as fraudulent, there is nothing in the notice impugned before the High Court as to when was the alleged fraud discovered by the State. A specific statement in that regard was essential for it was a jurisdictional fact, which ought to be clearly asserted in the notice issued to the respondents. The attempt of the appellant-State to demonstrate that the notice was issued within a reasonable period of the discovery of the alleged fraud is, therefore, futile. At any rate, when the Government allowed the land in question for housing sites to be given to Government employees in the year 1991, it must be presumed to have known about the record and the revenue entries concerning the parcel of land made in the ordinary course of official business. In as much as, the notice was issued as late as on 31st December, 2004, it was delayed by nearly 13 years. No explanation has been offered even for this delay assuming that the same ought to be counted only from the year 1991. Judged from any angle the notice seeking to reverse the entries made half a century ago, was clearly beyond reasonable time and was rightly quashed."
30. Then again in the case of (Dev Sharma and another Vs. Board of Revenue and others) Writ Petition No. 15760 of 2003 decided on 29.08.2011 this Court has held as under:-
"21. 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.
30. 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).
31. 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."
31. From the perusal of the records, it is borne out that the allottees were put in possession of the concerned land on the date of allotment i.e. 30.06.1994. This fact stands affirmed from the personal affidavit dated 18.05.2012 of the Collector/District Magistrate, Gautam Buddh Nagar, filed before the Apex Court in SLP (C) No. 26256-57 of 2011 (Siddharth and others Vs. State of U.P. through Collector & others) filed on record as Annexure No. 7 to the writ petition. The Court has gone through the averments made by the District Magistrate in his affidavit dated 18.05.2012 and finds that categorical averments have been made regarding the Allottees being put in possession over the Plot Nos. 525, 526/4 and 527- M on 30.06.1994. There is no occasion to doubt the affidavit of the Collector. The Court is fortified by the fact that the petitioner after coming in possession of the land applied for sanction of Map to the Ghaziabad Development Authority for raising constructions upon the concerned plot in the year 2008 itself. The Map was duly sanctioned by the Ghaziabad Development Authority which itself establishes the fact that petitioner was in possession over the plot. The Court finds no substance in the submission of learned counsel for the respondents that the allottees were never put in possession over the plots and that the allotment was vitiated as the land was never vacant.
32. Recently a Coordinate Bench of this Court in its decision dated 18.03.2024 rendered in Writ-B N. 53092 of 2004 (Heera Lal vs. Board of Revenue and others) in para 11 and 12 observed as under: -
"11. 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. and L.R. Act and held that time barred cancellation proceeding initiated on the basis of private complaint cannot be entertained. The relevant paragraph of the judgment 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.
8. 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.
9. 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 relevant. The same is being reproduced here as under:
"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 defendant/ 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."
12. Considering the ratio of law laid down by this Court in Rishi Pal (Supra) as well as fact that cancellation proceeding in the instant matter has been initiated by private party after 15 years from the date of execution of lease in favour of the petitioner, the impugned orders cannot be sustained."
33. In view of the above, the Court comes to the irresistible conclusion that the proceeding for cancellation of the agricultural leases in favour of the allottees under Section 198 (4) of the UPZA & LR Act at the instance of the private Respondent Nos. 6 to 9 and even otherwise were clearly not maintainable. The Question No. 2 is decided accordingly.
34. Now, as regards the third question i.e. whether the conferment of Bhumidhari with transferable rights under Section 131-B of the UPZA & LR Act and declaration thereafter under Section 143 of the UPZA &LR Act would oust the jurisdiction of the Collector of his powers under Section 198 (4) of the UPZA & LR Act, rendering the entire proceedings drawn against the petitioner as not maintainable it has been submitted by learned counsel for the petitioner that the cumulative effect of the order passed under Section 131-B and 143 of the UPZA & LR Act is that the land shall stand excluded from the applicability of the provisions contained in Chapter VIII of the UPZA & LR Act including the provisions of Section 198 (4). Consequently, the Collector lacked inherent jurisdiction to pass the impugned order which is not liable to be sustained and deserves to be quashed especially in the wake of the fact that the orders passed under Section 131-B and 143 of the UPZA & LR Act had attained finality in the absence of any challenge. The legal submissions could not be refuted by the learned counsels for the respondents.
35. The consequence of a declaration under Section 143 of the UPZA & LR Act came up for consideration in the case of Raghubir Singh Vs. Sub Divisional Officer etc. reported in 1966 RD 204. In the said decision the Court proceeded to observe as under:-
"Once the position is arrived at that, there was a declaration, made under Section 143 of the Act, after due enquiry, then by virtue of sub Section (2) thereof the conclusion is inescapable that the provisions of the whole of Chapter VIII other than of Section 143 would become wholly inapplicable. Section 137-A and Section 198 both fall within this Chapter and, therefore, no authority will, after a declaration has been made under Section 143 of the Act, have any jurisdiction to entertain such an application. More so when an order under Section 143 of the Act is an appealable order and no appeal has been preferred and that order has become final"
36. In a more recent case reported in 2005 (98) RD 707 (Merino Exports Pvt Limited and another Vs. Additional Commissioner Meerut Division Meerut and others) the same view has been emphasized in para 8 of the decision which is being quoted here under:
"8. From the perusal of the aforesaid provisions of law it is clear that where a bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in charge of the subdivision may, suo motu or on an application , after making such enquiry as may be prescribed, make a declaration to that effect. Sub-sections (2) and (3) of Section 143 of the Act deals with this consequences of such, declaration, which provides that upon the grant of the declaration mentioned in sub-section (1) the provisions of this Chapter (other than this section) shall cease to apply' to the bhumidhar with transferable rights with respect to such land and he shall thereupon M governed in the matter of devolution of the land by personal law to which he is subject. Thus it is clear that on account of declaration made under Section 143 of the Act, the consequences which would flow therefrom, are indicated in sub-sections (2) and (3) of Section 143 of the Act and nothing more. Since the proceedings under Section 143 of the U.P. Z.A. & L.R. Act are initiated either suo motu or on an application moved by a bhumidhar with transferable rights before the Assistant Collector in-charge of the sub-division therefore in order to make declaration under the aforesaid Act an enquiry is required to be conducted by the Assistant Collector in-charge of the sub-division as prescribed under the Rules, 1952. Rule 135 of the U.P.Z.A. & L.R. Rules, 1952 provides the procedure for holding such enquiry, wherein the Assistant Collector in-charge of the sub-division is empowered to make enquiry through the Tehsildar or any other officer hot below the rank of Supervisor Kanoongo for the purpose of satisfying himself that the bhumidhar's holding or a part thereof is realty being used for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. The enquiry shall be made on the spot and the enquiry officer shall, along with his report shall also furnish information in the pro forma given in the rules itself. Clause (2) of the aforesaid Rules postulates that where the proceedings have been started by the Assistant Collector in-charge of the sub-division in his own motion he shall issue notice to the bhumidhar concerned. Otherwise also he shall give him an opportunity of being heard before coming to the decision in the matter. Clause (3) of the aforesaid Rules provides that where the entire holding of the bhumidhar has been put to use for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in-charge of the subdivision may make a declaration to that effect. Clause (4) of the aforesaid Rules deals with the matters relating to the part of the holding and demarcation of the area of the land of the bhumidhar on the basis of existing survey map and actual user of the land. Clause (5) of the aforesaid Rules provides further procedure and apportionment the land revenue payable for each part of the land. Clause (6) of the aforesaid Rulers deals with the costs for demarcation which is to be realised from the bhunmidhar as arrears of land revenue unless it has been deposited during the course of the proceedings. Thus from the joint reading of the provisions of Section 143 of the Act inasmuch as Rule 135 of the Rules particularly clause (1) and clause (3) of Rule 135 of the Rules, it is clear that where on the basis of the enquiry made under the aforesaid Rules, it is found that where the entire holding of the bhumidhar has been put to use for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector in-charge of the sub division may make a declaration to that effect."
37. Thus in view of the above, in the opinion of the Court with the declaration under Section 143 of the Act, the jurisdiction of the Collector to examine the leases in exercise of power under Section 198 (4) stood ousted rendering the entire proceedings under Section 198(4) without jurisdiction. The Question No. 3 stands answered accordingly.
38. In view of the above discussion, the impugned order dated 18.06.2018 passed by the Collector, Ghaziabad, in Case No. 2610 of 2017 under Section 198 (4) of the UPZA & LR Act, 1950, Annexure No. 29 to the writ petition is set aside. The writ petition stands allowed.
39. Consequences to follow.
Order Date :- 07.11.2024
pks/deepak
