Allowed

Smt. Shakuntla and 25 Ors. v. State of U.P. and 3 Ors.

Allahabad HC10 May 2019WRIC/33761/2014

Case brief

AI extract

What is this about?

This High Court quashed a revisional order canceling a land lease. The court held that statutory limitation bars cancellation beyond five years for allotments after 1980, mere irregularities do not equate to fraud, and even in fraud cases, action must be taken within a reasonable time.

What did the court decide?

The order dated 25.2.2014 passed by the Additional Commissioner (Judicial), Moradabad was quashed.

Smt. Shakuntla and 25 Ors. Vs State of U.P. and 3 Ors. — Land Acquisition | Allahabad HC (2019)

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AFR

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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. - 33761 of 2014

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Petitioner :- Smt. Shakuntla And 25 Ors. Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Kunwar J.P. Singh Counsel for Respondent :- C.S.C., Arun Kumar Srivastava

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Hon'ble Pankaj Bhatia,J.

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Heard Sri Kunwar J.P. Singh, learned counsel for the petitioners and Sri Arun Kumar Srivastava, learned counsel for the respondents.

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The petitioners have filed the present petition challenging the order dated 25.2.2014 passed by the Additional Commissioner (Judicial) Moradabad Region, Moradabad in Revision No. 21/2012-13 (State of U.P vs. Land Management Committee and others) whereby the revision has been allowed and the order passed by the appellate authority has been set aside.

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

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It is stated that the Land Management Committee Village Bhajanpur, now Majra Ghat, Tehsil Shahbad, District Rampur had allotted land to the petitioners on 11.6.1997 and, in this regard, a resolution was also passed in the meeting of the Gram Sabha. The said allotment dated 11.6.1997 was confirmed by the Sub-Divisional Magistrate, Shahbad vide orders dated 10.1.1997 and 02.11.1997 and an entry was made in the khatauni/revenue records. In terms of the lease granted to the petitioners they are cultivating the land and are in possession thereof. After about 12 years i.e. on 12.1.2009 some villagers made a complaint alleging irregularities in the allotment of land on 11.6.1997 and sought that the land allotted to the petitioners be cancelled in exercise of powers conferred under Section 198 of the U.P. Z.A. & L.R. Act. The said complaint was rejected by the Sub-Divisional Magistrate, Shahbad and

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the allotment of the land in dispute was confirmed in favour of the actual allottees. The SDM while passing the order held that an application has been moved seeking the cancellation of the lease deeds on the ground that the allotments have not been done in accordance with law and thus the period of limitation would have no application, the SDM repelled the submissions and held that the applications were clearly barred by limitation.

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Aggrieved against the confirmation by the Sub-Divisional Magistrate, the State preferred an appeal under Section 198(4) of the U.P. Z.A. & L.R. Act which was registered as Case No. 31 of 2008-09 (State vs. Musaida and others). The said appeal was heard by the Additional Collector, Rampur and vide order dated 27.1.2010 dismissed the appeal filed by the State mainly on the ground that the application for cancellation has been moved after 14-15 years of the allotment of the land which is barred by limitation and as such the same was dismissed as having been filed beyond the prescribed period of limitation vide order dated 27.1.2010, (Annexure-2 to the writ petition).

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Aggrieved against the said order dated 27.1.2010 passed in appeal the State of U.P. preferred a revision before the Additional Commissioner (Judicial) Moradabad Region, Moradabad which was registered as Revision No. 21 of 2012-13 challenging the order dated 27.1.2010 mainly on the ground that the allotment of the lease in favour of the petitioners were not in accordance with law and lot of irregularities were done and as such it was prayed that the same were granted by playing a fraud and thus no limitation would come in the way and the Appellate Court had erred in dismissing the appeal on the ground of limitation. In revision, it was also stated that in the cases of lease which are not granted in accordance with law, no limitation is prescribed when suo motu cognizance is taken. The Revisional Court, vide the impugned order dated 25.2.2014, after hearing the parties, held that the Appellate Court had merely decided the appeal on technical grounds/limitation. He further held that the land in question

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belongs to Gram Sabha Majhara and without any agenda, publication or information and without preparing a list of eligible persons, the leases had been granted and the sanction was obtained by the Pargana Adhikari on 10.9.1997. It was also recorded that in some cases no prior sanction was taken under section 28-C of the Panchayat Raj Act and some of the allottees were not the residents of the Gram Sabha and the leases had been executed in their favour showing the name of residents of Gram Sabha and thus fraudulent leases was granted. It was recorded that the sanction dated 11.6.1997 should not have been accorded in view of the irregularity in the allotment. The Revisional Court had also held that whenever any leases are granted, which are not in accordance with law, the same can be cancelled even after the expiry of the period of limitation by exercising suo motu powers for which no limitation is prescribed. He relied upon two judgements of the Court which were based upon the facts that whenever leases are executed by playing fraud the limitation would not apply. On the said basis the revision was allowed by quashing the order dated 27.1.2010 and the file was remitted to the Appellate Court alongwith certified copy of the order.

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Learned counsel for the petitioners has argued that the Revisional Authority has erred in allowing the revision by recording facts which were not correct inasmuch as earlier, at the time of grant of lease there was only one village Gram Sabha, however, subsequently, after demarcation two Gram Sabhas were created and thus it was wrong to record that the petitioners were not the residents of Gram Sabha. It is argued that the status of residents of the Gram Sabha as on the date of grant of lease should have been considered and not the status of the petitioners as on the date of decision. The counsel for the petitioners has further argued that it is wrong to say that one of the petitioner's wife was a Pradhan, namely Khalil, son of Amjadi whereas the correct fact is that the lease was given in favour of Amjadi and after her death Sri Khalil had stepped into the shoes of Amjadi and thus the status of wife of Khalil

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should not have been taken into consideration as has been done by the Revisional Authority. Learned counsel for the petitioner has next argued that Section 198(6) of the U.P.Z.A. & L.R. Act provides for limitation for issuing a show cause notice prior to passing of an order for cancellation of allotment of lease. Section 198 sub-section (4) & (6) of the Act are quoted here under:

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“(4) The [Collector] may of his own motion and shall on the application of any persons 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.

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(5) No order for cancellation of an allotment or lease shall be made under sub-section (4), unless a notice to show cause is served on the person in whose favour the allotment or lease was made or on his legal representatives:

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Provided that no such notice shall be necessary in proceedings for the cancellation of any allotment or lease where such proceedings were pending before the Collector or any other court or authority on August 18, 1980.

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(6) Every notice to show cause mentioned in subsection (5) may be issued-

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(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

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(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 upto November 10, 1987, whichever be later.”

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Learned counsel for the petitioners argued that the lease in question was allotted on 11.6.1997 and thus by virtue of Section 198(6)(b) a show cause notice could be issued only within a period of five years whereas in the present case the proceedings itself were initiated after about 12 years on 12.1.2009. The counsel for the petitioners argued that whenever statute

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prescribes a limitation, as in the present case, the same has to be interpreted strictly as it amounts to taking away the valuable rights vested in the land holder.

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Learned counsel for the petitioners next argued that the revision was liable to be dismissed as the case in question did not fall in any of the conditions stipulated in Section 333 of the U.P. Z.A. & L.R. Act and thus the Revisional Authority has erred in exercising the jurisdiction without any of the ingredients for exercise of the revisional jurisdiction being present in the case in question. Lastly, learned counsel for the petitioners argues that even if for the sake of arguments it is presumed that the revision was maintainable, the Revisional Court could not have recorded any findings on fact except for correcting the illegality which the Revisional Court finds while exercising the revisional powers under Section 333 of the Act. Thus, the exercise of powers by the Revisional Court are beyond the scope of powers conferred upon the Reivisional Court under Section 333 of the Act. He argues that the Reivisional Court has recorded the findings of fact without even considering the evidence and thus the order deserves to be quashed.

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Learned counsel for the petitioners has placed strong reliance on the judgement of this Court in the case of Suresh Giri and others vs. Board of Revenue and others, 2000 Law Suit (All) 630 which has been followed by the judgement of this Court in the case of Jiya Ram vs. State of Uttar Pradesh, Laws (ALL) 2011 1297 to substantiate his submissions that the limitation prescribed under Section 198(6) is sacrosanct.

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Learned counsel for the respondents, on the other hand, has justified the exercise of powers under Section 333 of the Act. It is also stated that leases have not been cancelled by the Revisional Court and only the order passed by the Appellate Court has been set aside and the matter has been remanded as such the writ petition deserves to be dismissed.

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Testing the submissions made by learned counsel for the petitioners and the counsel for the respondents, at the bar, the following questions emerge for consideration by this Court:

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(a) Whether any show cause notice proposing cancellation of lease on the grounds of material irregularity while granting the lease can be issued beyond the period of limitation prescribed under Section 198(6) of the Act?

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(b) Whether the Revisional Court in exercise of its powers under Section 333 can record findings of fact without taking any evidence on record?

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(c) Whether the leases which are granted without observing the statutory provisions prescribed for grant of lease can be termed as fraudulent? and

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(d) Whether in the case of fraud an action can be taken for cancellation of the lease without any period of limitation?

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Section 195 of the Act confers the power on the Land Management Committee to admit any person as Bhumidhar with non-transferable right with the prior approval of the Tehsildar (the word “Tehsildar” has been replaced by Assistant Collector by virtue of U.P. Act No. 11 of 2002).

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Section 197 of the said Act confers the power on the Land Management Committee to admit any person as Aasami of any land, and Section 198 of the said Act provides that for admitting any person to land under Section 195 or Section 197 of the Act, the Land Management Committee shall observe the following order of preference as enumerated in the sub-section 1 of Section 198 of the Act. Section 198(4) of the Act confers the power on the Collector, who may of his own motion, or on an application made by any person aggrieved enquire into the matter and if he is satisfied that the allotment is irregular he may cancel the allotment and the lease, if any. Sub-section 5 of Section 198 provides for issuance of a show cause notice prior to passing of any order under Section 198(4) by the Collector and Section 198(6) of the Act provides for limitation for issuance of a show cause notice.

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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 10^th 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 10^th 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 10^th 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.

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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.

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Now coming to the second question as to whether a lease granted without following the order of preferences as prescribed under Section 198(1) of the Act can be termed as fraudulent leases. The word “fraud” connotes some positive act with an intention to deprive and acquire any benefits. The word “fraud” necessary entails the establishing of a positive act within intent and a mere irregularity cannot be equated with the term “fraud”. The entire averments made against the petitioners are that huge

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irregularities were committed while allotting the lands, the averments made against the petitioners are that they were not the residents of Gram Sabhas and in one case the wife of the petitioner was a Gram Sabha Pradhan. A plain reading of Section 198(1) does not create any bar for allotment of land to any person who is the spouse of a Gram Pradhan.

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The counsel for the petitioners has already submitted that at the time of the allotment the Gram Sabha was the same, however, at the time of exercise of power under Section 198(4) two Gram Sabhas were created and thus the finding is erroneous on the face of it. As regards the other irregularity, learned counsel for the petitioners has already submitted that the land was allotted in the name of the mother of the petitioner which came to him through succession and merely because his wife happened to be a Pradhan, the property which came through succession cannot be termed as obtained by fraud. There is no finding or even an averment that the mother of petitioner no. 25 was the wife of any Gram Pradhan and thus there is no foundation even on facts to suggest that there was any fraudulent act on the part of the petitioners while granting the lease. Thus, on the facts, I hold that the allotment of land in favour of the petitioners cannot be termed as fraudulent by any stretch of imagination nor are there any pleadings or evidence in support of the said contention.

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Now coming to the question of powers conferred under Section 333 of the U.P. Z.A & L.R. Act. The said section confers the power of revision in the cases where the Revisional Authority have reasons to believe that the lower authority has exercised a jurisdiction not vested by law or has failed to exercise jurisdiction so vested or has acted in the exercise of jurisdiction illegally or with material irregularity, the Revisional Court can intervene and pass such orders as deem fit. Section 333 of the Act is quoted here-in-below:

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Power to call for cases- (1) The Board or the Commissioner or the Additional Commissioner may call for the record of any suit or proceeding [other than proceeding under sub-section (4-A) of section

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198] decided by any court subordinate to him in which no appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceeding, and if such subordinate court appears to have:

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(a) exercised a jurisdiction not vested in it by law; or

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(b) failed to exercise a jurisdiction so vested; or

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the Board or the Commissioner or the Additional Commissioner, as the case may be, may pass such order in the case as he thinks fit.

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(2) if an application under this section has been moved by any person either to the Board or to the Commissioner or to the Additional Commissioner, no further application by the same person shall be entertained by any other of them.

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From the plain reading of said section, it is clear that the revisional jurisdiction can be exercised only to correct jurisdictional errors committed by the authorities and by no stretch of imagination can be equated with an appellate power.

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From the plain reading of the order impugned, it is clear that none of the three situations existed before the revisional authority namely that the order passed in appeal was not within jurisdiction, the order dated 27.1.2010 was not in exercise of a jurisdiction vested in the Additional Collector and thus could not be termed as failure to exercise a jurisdiction, there was nothing on record against the order of Additional Collector to suggest that he had exercised his jurisdiction illegally or with material irregularity. The Additional Collector in the order which was set aside by the Revisional Court had rightly rejected the appeal as the application for cancelling of the lease on account of material irregularity had been filed beyond the prescribed period of limitation and there was no illegality or material irregularity in the said order to enable the exercise of Revisional Court jurisdiction as has been done by the revisional authority by means

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of the impugned order.

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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:

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“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.

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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

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vests such power in an authority.

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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.”

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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:

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(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.

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(B) The Revisional Court in exercise of its powers under Section 333 of the Act cannot record findings of fact that too without taking any evidence on record at the revisional stage.

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(C) The leases without observing the statutory provisions prescribed for grant of lease cannot be termed as fraudulent and

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(D) Even if fraud is alleged the recourse for cancellation should be taken within a reasonable time.

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The writ petition is allowed and the order dated 25.2.2014 passed by the Additional Commissioner (Judicial) Moradabad Region, Moradabad is hereby quashed.

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No order as to costs.

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Order Date :- 10.5.2019 Puspendra

Smt. Shakuntla and 25 Ors. v. State of U.P. and 3 Ors.

Case brief

What is this about?

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Smt. Shakuntla and 25 Ors. v. State of U.P. and 3 Ors.

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