Allahabad High Court
Smt. Shanti Devi And Another vs Board Of Revenue And Others on 10 February, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:19133
Court No. - 50
Case :- WRIT - B No. - 14704 of 2013
Petitioner :- Smt. Shanti Devi And Another
Respondent :- Board Of Revenue And Others
Counsel for Petitioner :- Alpana Dwivedi,Satish Solanki,Suresh Kumar Maurya
Counsel for Respondent :- D.D. Chauhan,Diwakar Tiwari,Krishna Kant Singh
Hon'ble Chandra Kumar Rai,J.
In Re: Civil Misc. Delay Condonation Application No.7 of 2024 along with Substitution Application No.8 of 2024
1. Heard Heard Mr. Suresh Kumar Maurya, learned counsel for the petitioners, Mr. Anjani Kumar Chaurasia, learned Additional Chief Standing Counsel for the State respondents and Mr. Krishna Kant Singh, learned counsel for respondent no.3, Land Management Committee.
2. The instant applications have been filed in respect of deceased petitioner no.1 along with application under Section 5 of Limitation Act and with the prayer that note be made that heirs of deceased petitioner no.1 is already on record as petitioner no.2.
3. The heirs of deceased is already on record, as such, there is no question of delay in filing aforementioned application.
4. Let the word 'deceased' be mentioned against the name of petitioner no.1 and note be made that heir of deceased petitioner no.1 is already on record as petitioner no.2.
5. The applications are accordingly, allowed.
Order on Writ Petition
1. Heard Mr. Suresh Kumar Maurya, learned counsel for the petitioners, Mr. Anjani Kumar Chaurasia, learned Additional Chief Standing Counsel for the State respondents and Mr. Krishna Kant Singh, learned counsel for respondent no.3, Land Management Committee.
2. Brief facts of the case are that husband of petitioner no.1 along with others were granted agriculture lease in respect to plot No. 31 situated Village Panethi, Tehsil Kol, District Aligarh on 6.11.1976 which was approved in accordance with law on 29.11.1976. On the basis of lease, husband of petitioner no.1 came in possession and recorded in revenue record. An application for cancellation of petitioners' lease was filed by private respondent no.3 on 3.9.1991. In the aforementioned cancellation proceeding, show cause notice was issued to the petitioners along with other allottees accordingly objections were filed to the show cause notice. Additional Collector vide order dated 16.9.1993 cancelled the lease of 19 allottees including husband of petitioner no.1. Against the order dated 16.9.1993, husband of petitioner no.1 and others filed revision before the Commissioner. The aforementioned revisions were heard by Additional Commissioner (Judicial) Agra Division Agra and a reference was sent before Board of Revenue vide order dated 13.3.1996 to allow a three revision and dismissed the one revision. On the basis of reference sent by Additional Commissioner, Board of Revenue vide ex-parte order dated 17.1.1997 rejected the reference and remanded the case before Collector Aligarh with certain observations. Against the order dated 17.1.1997, an application for recall was filed before Board of Revenue which was dismissed vide order dated 1.4.2003. Hence this writ petition challenging the order dated 1.4.2003, 17.1.1997 passed by respondent no.1, Board of Revenue and order dated 16.9.1993 passed by respondent no.2, Additional Collector, Aligarh.
3. This Court entertained the matter on 8.4.2013 and passed the following order:-
"The submission is that with respect to lease granted in the year 1976, proceeding was initiated by a private individual in the year 1991. The lease was cancelled on the ground that the petitioners are not resident of the concerned gaon sabha and reside in Aligarh city. The petitioners have filed revision taking two main grounds (i) the proceeding itself is barred by time in view of Sub-section (6) of Section 198 of U.P. Zamindari Abolition and Land Reforms Act, 1950 ( in short 'the Act') (ii) the petitioners' house is situated in the concerned gaon sabha. The Commissioner made a reference to the Board of Revenue stating that the proceeding is highly time barred, therefore the same should be set aside. Learned Member Board of Revenue has rejected the reference on the ground that the petitioners are residing in Aligarh city without adverting to the fact as to whether the proceeding is barred by time or not, it is nowhere stated in the judgment either of the Commissioner or the Collector that the petitioners are residing in a particular house in the Aligarh city and their house are not situated in the concerned gaon sabha. This Court in the case of Suresh Giri and others Vs. Board of Revenue, U.P. at Allahabad 2010 (109) RD 566 and Jiya Ram and others Vs. State of U.P. and others 2012 (115) RD 372. has held that limitation for cancellation of lease granted under Sub-section 4 of Section 198 as provided under Section 6 of Section 198 of the Act are identical. However in a suo motu proceeding, the period of limitation can be relaxed but only in the circumstance where there is some preliminary inquiry holding that the fraud has been played during the course of allotment. In the latest judgment of Jiya Ram (supra), this Court has led emphasis that efforts should be made to attach the finality to the litigation and not to dig out the matter after long lapse of time.
The matter requires scrutiny.
Issue notice.
Notices on behalf of respondent nos. 1 and 2 have been accepted by the office of learned Chief Standing Counsel, whereas Sri D.D. Chauhan has put in appearance on behalf of respondent no. 3, therefore, notices need not be served again to respondents no. 1 to 3.
Issue notice to respondents no. 4 to 11 through registered post returnable at an early date.
Steps be taken within two weeks.
As an interim measure without prejudice to the right and contention of the parties, subject to further order passed by this Court, in case the petitioners have yet not been evicted from the land in dispute, they will not be evicted provided (i) The petitioners deposit Rs. 5,000/- (Rupees five thousands only) within a period of two months from today before the Tehsildar, District Aligarh, (ii) the above amount shall be deposited every year in the same month in which the first deposit is made, (iii) the condition of deposit will not apply in case the State Government declares the area under drought or flood, (iv) the amount so deposited shall be kept in a separate account, (v) in case the writ petition is allowed, the amount so deposited shall be returned to the petitioners with interest and in case the writ petition is dismissed, the amount so deposited shall go to the Gaon Sabha and (vi) in case of default of any of the conditions, the interim protection granted today shall stand vacated (vii) In the meantime, neither any third party right shall be created nor the land shall be used for other than agricultural purpose."
4. Counsel for the petitioners submitted that husband of petitioner no.1 was granted agriculture lease in the year 1976 and remained in possession over the allotted plot. He further submitted that cancellation proceeding has been initiated after 15 years at the instance of private party resulting into cancelling the lease of husband of petitioner no.1 which is wholly illegal. He submitted that in view of the provisions contained under Section 198 (6) of U.P.Z.A. and L.R. Act, the cancellation proceeding cannot be entertained after prescribed period of limitation. He submitted that impugned order passed by respondents are wholly illegal and liable to be set aside. He further placed reliance upon the judgment of this Court reported in 2018 (140) RD 220 Jitendra Kumar @ Gopal Vs. State of U.P. and Others and 2010 (109) RD 566 Suresh Giri and Others Vs. Board of Revenue and Others in order to demonstrate that cancellation proceeding initiated by stranger beyond the prescribed period of limitation cannot be entertained.
5. On the other hand, Mr. Anjani Kumar Chaurasia, learned Additional Chief Standing Counsel for the State respondents and Mr. Krishna Kant Singh, learned counsel for respondent, Land Management Committee submitted that husband of petitioner no.1 was not found eligible for the grant of lease, as such, the lease granted in favour of the husband of petitioner no.1 was cancelled. He submitted that Revisional Court has rightly passed the impugned order and no interference is required in the matter.
6. I have considered the arguments advanced by learned counsel for the parties and perused the records.
7. There is no dispute about the fact that husband of petitioner no.1 was granted agriculture lease in the year 1976 and the cancellation proceeding has been initiated on the basis of private complaint after 15 years from the date of execution of agriculture lease in favour of the husband of petitioner no.1. There is also no dispute about the fact that Additional Collector has cancelled the lease and Board of Revenue has rejected the reference sent by Commissioner and ordered to Collector to proceed further in the matter.
8. In order to appreciate the controversy involved in the matter, the perusal of the provision contained under Section 198 (6) of U.P.Z.A. and L.R. Act will be relevant which is as follows:-
"(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, whichever be later]."
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. 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 relvant. 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 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 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.
11. Considering the entire facts and circumstances, the impugned orders dated 1.4.2003 and 17.1.1997 passed by respondent no.1 and order dated 16.9.1993 passed by respondent no.2 are liable to be set aside and the same are hereby set aside.
12. The writ petition stands allowed and the lease granted in favour of the husband of petitioner no.1 on 6.11.1976/ 29.11.1976 is hereby affirmed.
13. No order as to costs.
Order Date :- 10.2.2025
Rameez
