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2014 DIGILAW 1524 (ALL)

RAM PAL v. STATE OF U. P.

2014-05-12

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Hon’ble Ram Surat Ram (Maurya), J.—Heard Sri Rohit Singh, for the petitioners, Standing Counsel, for State of U.P., Rajesh Yadav, Standing Counsel for Gram Panchayat and Santosh Srivastava, for contesting respondents. 2. The writ petition has been filed for quashing the orders of Additional Collector dated 29.8.2006, condoning the delay in filing application for cancellation of pattas under Section 198 (4) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) and Board of Revenue U.P. dated 18.12.2007 dismissing the revision of the petitioners and 10.7.2013 dismissing the review application of the petitioners, filed against the aforesaid orders. 3. Kiran and others (respondents-5 to 12) (hereinafter referred to as the respondents) filed an application (registered as Case No. 52 of 2005-06) under Section 198 (4) of the Act, on 27.10.2005 for cancellation of pattas dated 30.5.1995, allotting the land in dispute by Land Management Committee to the petitioners, as approved by Sub-Divisional Officer, by order dated 19.7.1995. It has been stated by the respondents that Land Management Committee granted patta of the land in dispute to the respondents on 12.7.1993, which was duly approved by Sub-Divisional Officer. They were given possession over the land allotted to them and their names were also mutated in the revenue records. Although the land in dispute was already allotted to the respondents and they were in possession of it, but without any notice/agenda and holding any meeting for allotment of the land in dispute, it was again allotted to the petitioners by resolution dated 30.5.1995. Without disclosing the correct facts, approval of Sub-Divisional Officer was obtained secretly on 19.7.1995. Although there were various landless persons of schedule castes category, but the land in dispute was illegally allotted to the persons other than schedule castes. Plot 332 and 562 were pasture land and pots 339 and 524 were reserved for plantation and flaying sites and falling within the categories of land mentioned under Section 132 of the Act, but these plots were also allotted. Bablu, Rajendra, Ravindra and Mahesh Pal were sons of Sadhuram and Smt. Usha was wife of Sadhuram, Vinod, Anil and Sunil were sons of Bhopal, brother of Sadhuram, the then Pradhan, but land has been allotted to them without prior permission of the Collector. Bablu, Rajendra, Ravindra and Mahesh Pal were sons of Sadhuram and Smt. Usha was wife of Sadhuram, Vinod, Anil and Sunil were sons of Bhopal, brother of Sadhuram, the then Pradhan, but land has been allotted to them without prior permission of the Collector. Alongwith the application another application for condonation of delay was filed stating therein that allotment was made without any notice and holding any meeting as such the respondents had no knowledge about the allotment. When the petitioners were getting Credit Card from the Lekhpal for agricultural loan on 29.7.2005, then for the first time they came to know about the allotments made in favour of the petitioners. In the meantime election intervened and after expiry of the election, the application was filed. 4. The petitioners filed their objection dated 11.8.2006 in delay condonation application and also filed their written statement. Delay condonation application was heard by Additional Collector, who by order dated 29.8.2006 held limitation for filing application for cancellation of patta would start from date of knowledge as held by Full Bench of Board of Revenue U.P. in Virendra Singh v. State of U.P., 1994 RD 540 and Kunwar Lal v. Land Management Committee, 2005 (98) RD 508. On these findings, delay in filing the application for cancellation of patta, has been condoned. The petitioners filed a revision (registered as Revision No. 92 of 2005-06) from the aforesaid order. The revision was heard by the Member, Board of Revenue, U.P., who by his order dated 18.12.2007 dismissed the revision. The petitioners filed a review application (registered as Review Application No. 08 of 2007-08) which was also dismissed by order dated 10.7.2013. Hence this writ petition has been filed. 5. The counsel for the petitioners submitted that five years limitation as provided under Section 198 (6) (b) of the Act, is applicable in the present case, for issuing notice in an application under Section 198 (4) of the Act for cancellation of patta. In this case, the pattas were granted by Land Management Committee to the petitioners on 30.5.1995, (approved by Sub-Divisional Officer by order dated 19.7.1995). The application for cancellation of pattas was filed on 27.10.2005 i.e. long after expiry of five years limitation for issuing notice. Section 5 of the Limitation Act, 1963 has no application and delay in filing the application under Section 198 (4) of the Act cannot be condoned. 6. The application for cancellation of pattas was filed on 27.10.2005 i.e. long after expiry of five years limitation for issuing notice. Section 5 of the Limitation Act, 1963 has no application and delay in filing the application under Section 198 (4) of the Act cannot be condoned. 6. In reply to the aforesaid arguments, the counsel for the respondents submitted that land in dispute was already allotted to the respondents and was not vacant on the spot. Without ejecting the respondents from it, without any notice/agenda and holding any meeting for allotment of the land in dispute, it was again allotted to the petitioners by resolution dated 30.5.1995. Without disclosing the correct facts, approval of Sub-Divisional Officer was obtained secretly on 19.7.1995. Sadhuram, the then Pradhan, by committing fraud got the allotment in favour of the petitioners and his family members of the land, which had already been allotted to the respondents or the land falling within the categories of Section 132 of the Act. When the petitioners were getting Credit Card on the land in dispute from Lekhpal for agricultural loan on 29.7.2005, then for the first time the respondents came to know about the allotments made in favour of the petitioners. In the circumstances of the case, delay in filing the application has been rightly condoned. The matter is still pending before the Court below and the petitioners have remedy to agitate their grievances on merit before Additional Collector. In the matter relating to condonation of delay, no interference is required by this Court. He relies upon Full Bench judgment of Board of Revenue U.P. in Virendra Singh v. State of U.P., 1994 RD 540 (FB), in which it has been held that for exercise of suo moto action under Section 198 (4) of the Act, there is no limitation and judgment of this Court in Suresh Giri v. Board of Revenue U.P., 2010(2) ADJ 514 and Dev Sharma v. Board of Revenue U.P., 2011 (9) ADJ 716 , in which it has been held that in case of fraud, limitation will start from the date of knowledge of fraud. 7. I have considered the arguments of the counsel for the parties and examined the record. Initially in exercise of powers under Section 344 of the Act, U.P. Zamindari Abolition and Land Reforms Rules, 1952 have been framed. 7. I have considered the arguments of the counsel for the parties and examined the record. Initially in exercise of powers under Section 344 of the Act, U.P. Zamindari Abolition and Land Reforms Rules, 1952 have been framed. Rule 338 read with Appendix III provides limitation for filing various cases/suits under the Act. The cases relating to cancellation of patta were provided under Section 198 (2) of the Act and vide Entry 24 of Appendix III, six month limitation from the date of announcement of allotment by Land Management Committee was provided for the cases, filed by the aggrieved persons and three years limitation from the date when the Collector first knew about the irregular allotment was provided for suo moto action by the Collector. Section 198 of the Act was amended by U.P. Act No. 20 of 1982 and under Section 198 (6) (a) of the Act, two years limitation for issue of notice under Section 198 (5) to the allottee, which is a condition precedent for cancellation of patta, has been provided for patta granted prior to 10.11.1980 and under Section 198 (6) (b) of the Act, five years limitation for cancellation of patta granted after to 10.11.1980 has been provided. Thereafter the Act was further amended by U.P. Act No. 24 of 1986 and under Section 198 (6) (a) of the Act, seven years limitation for issue of notice under Section 198 (5) to the allottee, which is a condition precedent for cancellation of patta, has been provided for patta granted prior to 10.11.1980 and under Section 198 (6) (b) of the Act, five years limitation for cancellation of patta granted after to 10.11.1987 has been provided. 8. By the amendment in the Act, by U.P. Act No. 20 of 1982 and U.P. Act No. 24 of 1986, the Act itself provides limitation for initiation of cases for cancellation of patta under Section 198 (4) of the Act, as such the limitation as provided in Appendix III (vide Entry 24) has become redundant. In case of contradiction between the Act and the Rules, the Act will prevail. In case of contradiction between the Act and the Rules, the Act will prevail. Section 198 (6) of the Act now uses the words “every notice to show-cause”, thus different limitation as previously provided for suo moto action under Entry 24 of Appendix III has also came to an end and by using words “every notice to show-cause” under Section 198 (6) of the Act, one limitation for the action on the case filed by aggrieved persons as well as suo moto cancellation of patta has been provided. Full Bench of Board of Revenue U.P. in Virendra Singh’s case (Supra) has not taken notice of legislative change and does not hold the good law. 9. Now the question arises for consideration as to whether delay can be condoned in exercise of powers under Section 5 of Limitation Act, 1963. Section 341 of the Act provides that unless otherwise expressly provides by or under this Act, the provisions of the Limitation Act, 1963 including Section 5 thereof shall apply to the proceedings under the Act. Section 5 of the Limitation Act, 1963 is quoted below : 5. Extension of prescribed period in certain cases.—Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.—The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. 10. Limitation for suits of different natures, appeals and applications have been given in Schedule. First Division of the schedule from Article 1 to 113 prescribes limitation for suit, Second Division of the schedule from Article 114 to 117 prescribes limitation for appeal and Third Division of the schedule from Article 118 to 137 prescribes limitation for applications. Under Section 2 (l) of Limitation Act, 1963 it has been clarified that suit does not include an appeal or an application. Under Section 5 of Limitation Act, 1963 delay can be condoned only in the appeals and applications falling under Second Division and Third Division of the schedule. Under Section 2 (l) of Limitation Act, 1963 it has been clarified that suit does not include an appeal or an application. Under Section 5 of Limitation Act, 1963 delay can be condoned only in the appeals and applications falling under Second Division and Third Division of the schedule. The case for cancellation of patta as given under Section 198 (4) of the Act cannot be treated as an application as provided under Third Division of the schedule from Article 118 to 137. Section 198 (4) provides the provision of the category of the suit. Section 5 of Limitation Act, 1963 has no application and delay cannot be condoned in exercise of powers under Section 5 of Limitation Act, 1963. 11. Similar controversy came for consideration before Supreme Court in Nasiruddin v. Sita Ram Agarwal, AIR 2003 SC 1543 , in which the provisions of Section 13 (4) of Rajsthan Premises (Control of Rent and Eviction) Act, 1950, which provides 15 days limitation for deposit of rent as determined by the Court. This 15 days limitation can be extended by the Court maximum up to 90 days. Supreme Court held that on perusal of the said section it is evident that the question of application of Section 5 would arise where any appeal or any application may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not making the appeal or application within such period. Section 13(4) provides that in a suit for eviction on the ground set forth in clause (a) of sub-section (1), the tenant shall on the first date of hearing or on or before such date, the Court may on the application fixed in this behalf or within such time the tenant shall deposit in Court or pay to the landlord in Court as determined under sub-section (3) from the date of such determination or within such further time not exceeding three months as may be extended by the Court. Thus, sub-section (4) itself provides for limitation of a specific period within which the deposit has to be made, which cannot be exceeding three months as extended by the Court. The matter may be examined from another angle. The deposit by the tenant within 15 days is not an application within the meaning of Section 5 of the Limitation Act, 1963. The matter may be examined from another angle. The deposit by the tenant within 15 days is not an application within the meaning of Section 5 of the Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of Section 5 cannot be extended where the default takes place in complying with an order under sub-section (4) of Section 13 of the Act. The provisions of Section 5 of the Limitation Act must be construed having regard to Section 3 thereof. For filing an application after the expiry of the period prescribed under the Limitation Act or any other special statute, a cause of action must arise. Compliance with an order passed by a Court of law in terms of a statutory provision does not give rise to a cause of action. On failure to comply with an order passed by a Court of law, instant consequences are provided for under the statute. The Court can condone the default only when the statute confers such a power on the Court and not otherwise. In that view of the matter we have no other option but to hold that Section 5 of the Limitation Act, 1963 has no application in the instant case. Thus, Section 5 of the Limitation Act, 1963 has no application as the application for cancellation of patta under Section 198 (4), is the original proceedings of the nature of suit and not an application falling in the categories given from Article 118 to 137. 12. As Limitation Act, 1963 has been applied to the proceedings under the Act, as such in view of Section 2 (j) of the Limitation Act, prescribed period of limitation can be computed according to the provisions as provided from Section 4 to 24 of Limitation Act, 1963. Section 17 of Limitation Act, 1963 provides as follows : 17. 12. As Limitation Act, 1963 has been applied to the proceedings under the Act, as such in view of Section 2 (j) of the Limitation Act, prescribed period of limitation can be computed according to the provisions as provided from Section 4 to 24 of Limitation Act, 1963. Section 17 of Limitation Act, 1963 provides as follows : 17. Effect of fraud or mistake.—(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,— (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him; the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it, or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production: Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which— (i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or (ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or (iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed. (2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the Court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order: Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be. 13. In the cases where fraud has been committed by the defendant or his agent the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it, or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. In this case, it was alleged by the respondents that Land Management Committee granted patta of the land in dispute to the respondents on 12.7.1993, which was duly approved by Sub-Divisional Officer. They were given possession over the land in dispute and their names were also mutated in the revenue records. Although the land in dispute was already allotted to the respondents and were in their possession, but without any notice/agenda and holding any meeting for allotment of the land in dispute, it was again allotted to the petitioners by resolution dated 30.5.1995 as Pradhan, Sadhuram was relation of some of allottees. Without disclosing the correct facts, approval of Sub-Divisional Officer was obtained secretly on 19.7.1995. It is only on 29.9.2005, they came to know about the allotment of the land to the petitioners and the application under Section 198 (4) of the Act was filed on 27.10.2005. From the date of discovery of fact relating to fraudulent allotment, the application was within time and the Collector has jurisdiction to try it on merit. 14. In this case, Additional Collector, by order dated 29.8.2006 condoned the delay in filing the application under Section 198 (4) of the Act, in exercise of powers under Section 5 of the Limitation Act, 1963. As held above, provisions of Section 5 of the Limitation Act, 1963 are not applicable to the proceedings under Section 198 (4) of the Act, as this proceeding is of the nature of suit. As held above, provisions of Section 5 of the Limitation Act, 1963 are not applicable to the proceedings under Section 198 (4) of the Act, as this proceeding is of the nature of suit. In such circumstances, Additional Collector ought to have framed an issue regarding limitation and after taking evidence of both the parties, he may decide the issue relating to limitation as a preliminary issue. In case fraud and misrepresentation is established and within period of five years the fraud could not came to the knowledge of the respondents, then he may give benefit of limitation under Section 17 of the Limitation Act, 1963. 15. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The orders of Additional Collector dated 29.8.2006, and Board of Revenue U.P. dated 18.12.2007 and 10.7.2013 are set aside. The matter is remanded to Additional Collector to frame an issue relating to limitation and decide it as preliminary issue after taking evidence of the parties and if this issue is decided in favour of the respondents, then proceed to decide the case on merit in accordance with law.