Allowed

Smt. Dhankali v. State of U.P. and Another

Allahabad HC10 May 2019WRIC/14333/2014

Case brief

AI extract

What is this about?

The High Court quashed an order cancelling a land lease granted in 1986. The Court held that the exercise of cancellation power after 22 years, despite the tenant's prior litigation, was an unreasonable delay exceeding the principle of reasonable time required when statutes prescribe no limitation. The writ petition was allowed.

What did the court decide?

The order dated 18.6.2011 cancelling the lease and directing eviction is quashed. The writ petition is allowed.

Smt. Dhankali Vs State of U.P. and Another — Landlord and Tenant | Allahabad HC (2019)

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AFR RESERVED ON 03.05.2019 DELIVERED ON 10.5.2019

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Court No. - 26

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Case :- WRIT - C No. - 14333 of 2014

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Petitioner :- Smt. Dhankali Respondent :- State Of U.P. And Another Counsel for Petitioner :- Jagdish Singh Counsel for Respondent :- C.S.C.

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Hon'ble Pankaj Bhatia,J.

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The petitioner has filed the present petition challenging the order dated 18.6.2011, passed by Additional Collector, (Finance & Revenue) Deoria (respondent no. 2) whereby the lease granted in favour of the petitioner on 09.07.1986 on Araji No. 140 Rakwa 0.06 decimal situated at Mohalla Salahabad, Pargana & Tehsil Salempur, District Deoria has been cancelled and directions have been issued for evicting the petitioner from the land in question.

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The facts in brief giving rise to the present petition are as under:

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The petitioner claims that she is the resident of Mohalla Salahabad, Pargana & Tehsil Salempur, District Deoria and was allotted patta of 0.06 decimal land of Plot No. 140 at Village Ichauna which is situated at Salempur by the Executive Officer, Town Area, which was duly approved by the Sub-Divisional Officer on 09.07.1986. It is claimed that the said lease was granted in exercise of powers conferred under section 122-C of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to U.P. Z.A & L.R. Act). The petitioner claims that after the grant of the lease the petitioner submitted a map for raising construction and the petitioner is residing on the said property after raising construction thereat. The petitioner claims that rest of the area of of Plot No. 140 was recorded in the name of Zila Udyog Kendra established by the State Government and the said Zila Udyog Kendra started interfering with the possession of the petitioner as such the

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petitioner has filed Civil Suit No. 963 of 1987 against Zila Udyog Adhikari and the Collector, Deoria. In the said suits written statements were filed by the Zila Udyog Kendra and the Collector on 10.11.1984 and 4.12.1987 respectively. The petitioner claims that the trial court had rejected the interim injunction application filed by the petitioner in the said Suit No. 963 of 1987 against which the petitioner preferred a misc. appeal before the learned District Judge vide Appeal No. 15 of 1984 which was allowed by the 4^th Additional District Judge, Deoria on 15.2.1994 and the defendants were restrained from interfering in the possession of the petitioner.

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The petitioner alleges that after about 22 years from the date of grant of lease in favour of the petitioner on 09.07.1986, the Zila Udyog Kendra filed an application purporting to be under Section 122-C(6) of the U.P. Z.A. & L.R. Act on 04.12.2008 without any application for condonation of delay, making a request for cancellation of the lease granted in favour of the petitioner 09.7.1986, the said application was registered as Case No. 23 and the petitioner appeared and filed written objections objecting to the application filed by the Zila Udyog Kendra. In the said objection, the petitioner had specifically objected that the Zila Udyog Kendra had filed the written statement in the civil suit filed by the petitioner and thus they had the knowledge of the litigation pending in between the parties and also the fact that the petitioner had been granted the lease as such filing of an application after about 22 years was hopelessly barred by limitation and deserves to be dismissed. Besides raising the objection on the question of limitation the petitioner also justified the grant of lease in her favour.

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The Additional Collector passed an order dated 18.6.2011 and cancelled the lease granted in favour of the petitioner by holding that the condonation of delay was allowable under section 5 of the Indian Limitation Act. The said order dated 18.6.2011 is impugned in the present petition.

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This Court while entertaining the writ petition had passed an order on 07.03.2014 to the following effect:

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“Heard Sri Jagdish Singh, learned counsel for the petitioner and learned Standing Counsel for the State respondents.

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Issue notice.

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Notices on behalf of respondents have been accepted by the office of learned Chief Standing Counsel, therefore notice need not be served again to the respondents.

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Learned counsel for the respondents are granted six weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.

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List thereafter.

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As an interim measure without prejudice to the right and contention of the parties, the parties are directed to maintain status quo as on date with regard to nature and possession over the land in dispute. The parties are further restrained from creating any third party right over the land involved in the proceeding. The petitioner is also restrained from raising any new construction.”

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The matter was thereafter listed on 29.3.2019 on which date this

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Court passed the following order:

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“Learned counsel for the respondents prays for and is granted three weeks' and no more time to file counter affidavit. Rejoinder affidavit, if any, may be filed within one week thereafter.

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List thereafter.”

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The matter was thereafter listed on 03.5.2019, the court after holding that despite more than five years have been passed no counter affidavit has been filed and that the counsel for the petitioner submitted that he will argue only on the question of law, this Court proceeded to hear the counsel for the petitioner and the Standing Counsel and the judgement was reserved.

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The sole questions that arise on the basis of arguments raised before this Court is:

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Whether exercise of power under Section 122-C(6) of the U.P.Z.A.

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& L.R. Act for cancellation of lease after 22 years can be termed as a valid exercise of power?

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Section 122-C(1) of the U.P. Z.A. & L.R. Act confers the power of grant of lease to the classes of persons referred to under Section 122-C(1) of the said Act and Section 122-C(6) of the Act confers the power on the Collector to cancel the allotment of the lease granted under Section 122C(1). Sub-section 7 of Section 122-C attaches finality to the orders passed by the Assistant Collector and in fact the provisions of revising any order as prescribed under Section 333 of the Act and specifically barred. Section 122-C(6) and (7) of the U.P. Z.A. & L.R. Act are reproduced here under:

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“(6) The collector may of his own motion and shall on the application of any person aggrieved by an allotment of land under this section inquire in the manner prescribed into such allotment, and if he is satisfied that the allotment is irregular, he may cancel the allotment, and thereupon the right, title and interest of the allottee and of every other person claiming through him in the land allotted shall cease.

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(7) Every order passed by the Assistant Collector under sub-section (4) shall, subject to the provision of sub-section (6) and every order passed by the Collector under sub-section (6) shall be final, and the provisions of [section 333 and section 333-A] shall not apply in relation thereto.”

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A plain reading of the provisions of sub-section 6 of Section 122-C make it clear that the Collector is empowered to exercise suo motu powers or on an application filed by any aggrieved person to proceed to cancel the allotment if he is satisfied that the allotment is irregular. The question whether the Collector is empowered to take a decision without any limitation and in infinity is to be considered by this Court.

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The Hon'ble Supreme Court in the case of Joint Collector Ranga Reddy District and another vs. D. Narsing Rao and others, 2015 3 SCC 695 while considering a similar power conferred under the provisions of Andhra Pradesh (Telangana Area) Board of Revenue

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Regulation held that whenever a power is conferred without prescribing any limitation the same should be exercised within a reasonable time. The Supreme Court after considering the case law recorded as under:

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“26. In one of the earlier decisions of this Court in S.B. Gurbaksh Singh v. Union of India 1976 (2) SCC 181, this Court held that excercise of suo motu power of revision must also be within a reasonable time and that any unreasonable delay in the exercise may affect the validity. But what would constitute reasonable time would depend upon the facts of each case.

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27. To the same effect is the decision of this Court in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham V.K. Suresh Reddy and Ors., (2003) 7 SCC 667 where this Court held that even in cases of fraud the revisional power must be exercised within a reasonable period and that several factors need to be kept in mind while deciding whether relief sooner be denied only on the ground of delay. The Court said:

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"In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act."

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28. To the same effect is the view taken by this Court in Sulochana Chandrakant Galande. v. Pune Municipal Transport and Others (2010) 8 SCC 467 where this Court reiterated the legal position and held that the power to revise orders and proceedings cannot be exercised arbitrarily and interminably. This Court observed:

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"The legislature in its wisdom did not fix a time-limit for exercising the revisional power nor inserted the words "at any time" in Section 34 of the 1976 Act. It does not mean that the legislature intended to leave the orders passed under the Act open to variation for an indefinite period inasmuch as it would have the effect of rendering title of the holders/allottee(s) permanently precarious and in a state of perpetual uncertainty. In

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case, it is assumed that the legislature has conferred an everlasting and interminable power in point of time, the title over the declared surplus land, in the hands of the State/allottee, would forever remain virtually insecure. The Court has to construe the statutory provision in a way which makes the provisions workable, advancing the purpose and object of enactment of the statute".

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29. In State of H.P. And Orss. v. Rajkumar Brijender Singh and Ors. (2004) 10 SCC this Court held that in the absence of any special circumstances a delay of 15 years in suo motu exercise of revisional power was impermissible as the delay was unduly long and unexplained. This Court observed:

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"We are now left with the second question which was raised by the respondents before the High Court, namely, the delayed exercise of the power under sub-section (3) of Section 20. As indicated above, the Financial Commissioner exercised the power after 15 years of the order of the Collector. It is true that sub-section (3) provides that such a power may be exercised at any time but this expression does not mean there would be no time-limit or it is in infinity. All that is meant is that such powers should be exercised within a reasonable time. No fixed period of limitation may be laid but unreasonable delay in exercise of the power would tend to undo the things which have attained finality. It depends on the facts and circumstances of each case as to what is the reasonable time within which the power of suo motu action could be exercised. For example, in this case, as the appeal had been withdrawn but the Financial Commissioner had taken up the matter in exercise of his suo motu power, it could well be open for the State to submit that the facts and circumstances were such that it would be within reasonable time but as we have already noted that the order of the Collector which has been interfered with was passed in January 1976 and the appeal preferred by the State was also withdrawn sometime in March 1976. The learned counsel for the appellant was not able to point out such other special facts and [pic]circumstances by reason of which it could

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be said that exercise of suo motu power after 15 years of the order interfered with was within a reasonable time. That being the position in our view, the order of the Financial Commissioner stands vitiated having been passed after a long lapse of 15 years of the order which has been interfered with. Therefore, while holding that the Financial Commissioner would have power to proceed suo motu in a suitable case even though an appeal preferred before the lower appellate authority is withdrawn, maybe, by the State. Thus the view taken by the High Court is not sustainable. But the order of the Financial Commissioner suffers from the vice of the exercise of the power after unreasonable lapse of time and such delayed action on his part nullifies the order passed by him in exercise of power under sub-section (3) of Section 20".

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30. We may also refer to the decision of this Court in M/s Dehri Rohtas Light Railway Company Ltd. V. District Board, Bhojpur and Ors (1992) 2 SCC 598 where the Court explained the legal position as under:

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"The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own [pic]facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not as to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway

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undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed".

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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.

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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

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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.”

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Thus, the settled law that emerges from the judgement of the Supreme Court is that a power cannot be exercised after a long delay and the power should be exercised within a reasonable time. In this case, admittedly, the power has been exercised after about 22 years that too at the instance of Zila Udyog Kendra who were aware of the allotment made in favour of the petitioner as early as in the year 1987 when the Civil Suit No. 963 of 1987 was filed. No steps were taken seeking cancellation of the lease and an application was filed in the year 2008 that too without any justification for not having initiated the application without a reasonable time.

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In view of the settled law of the Supreme Court, as quoted above, I am of the view that the application filed for cancellation of the lease in favour of the petitioner in the year 2008 was hopelessly barred by limitation and, thus, the order dated 18.6.2011 is without any jurisdiction whatsoever and deserves to be quashed. This Court in Writ-C No. 33761 of 2014 (Smt. Shakuntla And 25 Ors. vs. State Of U.P. And 3 Ors.) had considered a similar question with regard to the actions to be taken where no limitation is prescribed and held that the action taken after about 12 years was beyond the prescribed period and cannot be termed as reasonable time.

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The recourse taken by the respondent no. 2 in the impugned order to section 5 of the Indian Limitation Act is flawed on two grounds. Firstly, Section 198-C(6) of the U.P.Z.A. & L.R. Act does not prescribe any limitation and secondly the foundation for invoking the principles of Section 5 were wholly missing and, in fact, there was no application for condonation of delay and thus the principles of Section 5 could not be applied as has been wrongly done in the impugned order by the

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respondent no. 2.

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Thus holding that where no limitation is prescribed the acts should be done within a reasonable time and in the present case the initiation of proceedings after about 22 years cannot be termed as a reasonable time more so in view of the fact that Zila Udyog Kendra was aware of the entire facts in the year 1987 itself. Thus, the order dated 18.6.2011, passed by Additional Collector, (Finance & Revenue) Deoria, deserves to be set aside and is, accordingly, quashed.

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The writ petition is allowed.

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No order as to costs.

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Order Date :- 10.5.2019 Puspendra

Smt. Dhankali v. State of U.P. and Another

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What is this about?

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Smt. Dhankali v. State of U.P. and Another

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