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2015 DIGILAW 3037 (ALL)

Shobha Devi v. State of U. P.

2015-09-23

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Indrasen Singh Tomar for the petitioners and Sri Shyam Lal Yadav for the contesting respondents- 4 and 5. 2. The writ petition has been filed against the order of Board of Revenue dated 3.6.2015 by which he has allowed the revision of respondents - 4 and 5 and set aside the order of Collector dated 31.12.2013 dismissing the application of the respondents- 4 and 5 for cancellation of patta under Section 198 (4) of UP Act No. 1 of 1951. 3. It is alleged that the patta of the land in dispute was granted to the petitioners in the year 1998. Respondents - 4 and 5 filed an application under Section 198 (4) of UP Act No. 1 of 1951 on 16.3.2013 for cancellation of patta. In the application it has been stated that there were several holdings of the petitioners and total area of the holdings held by the petitioners exceeds 1.125 hectare and they were not eligible for grant of patta but concealing the material fact the patta has been granted to the petitioners. In the case notices have been issued to the petitioners. The petitioners appeared and filed their reply. The preliminary objection has been made by the petitioners that patta was granted in the year 1998 while the application for cancellation of patta was filed on 16.3.2013 as such it is highly time barred. Under Section 198 (6) of the Act, the limitation for initiation of the proceeding for cancellation of patta is provided five years only. Thereafter the matter was adjourned on several occasions. The Collector by the order dated 11.9.2013 granted time to the parties for adducing their evidence. Subsequently the matter was heard and the Collector by order dated 31.12.2013 found that the application for cancellation of patta is highly time barred. The respondents - 4 and 5 are not aggrieved person as such the application on their behalf was not maintainable. The respondents in their application had not shown that they were coming in the eligible category preferable to the petitioners for allotment of land. No fraud or fabrication in the allotment of land was proved and the land was rightly allotted on the basis of eligibility criteria to the petitioners. On these findings he dismissed the application of respondents 4 and 5. No fraud or fabrication in the allotment of land was proved and the land was rightly allotted on the basis of eligibility criteria to the petitioners. On these findings he dismissed the application of respondents 4 and 5. Respondents - 4 and 5 filed a revision against the aforesaid order before Board of Revenue. The revision was allowed by Board of Revenue by order dated 3.6.2015. The Board of Revenue found that the Collector has dismissed the application of respondents - 4 and 5 without giving any opportunity of evidence to the respondents as such the order of Collector is illegal and liable to be set aside. 4. When the writ petition has been filed the respondents have filed caveat before this Court and they were granted time for filing counter affidavit. The counter affidavit as well as supplementary counter affidavit have been filed and the petitioners have also filed rejoinder affidavit to the counter affidavit as well as supplementary counter affidavit. 5. I have considered the arguments of the counsel for the parties and examined the records. 6. A perusal of the order of Board of Revenue shows that the revision has been allowed only on the ground that the application has been dismissed without giving opportunity of evidence to the respondents. A copy of the order sheet of Collector has been filed by the respondents along with the counter affidavit. The Collector by order dated 11.9.2013 granted time to the parties to file their documentary evidence and thereafter the order was passed on 31.12.2013. Thus three months time was availed by the respondents to file any documentary evidence as well as any other evidence but they could not file any evidence. The findings recorded by the Board of Revenue is perverse, inasmuch as the Board of Revenue has not examined the order sheet of the Collector. 7. It has been highly disputed by the respondents that the petitioners were having more that 10 acre land on the date of grant of patta to them and thus they were not eligible for grant of patta. However the various khataunies were filed which shows that some of the land obtained by the petitioners were subsequent to grant of patta. It has been highly disputed by the respondents that the petitioners were having more that 10 acre land on the date of grant of patta to them and thus they were not eligible for grant of patta. However the various khataunies were filed which shows that some of the land obtained by the petitioners were subsequent to grant of patta. As the patta was granted in the year 1998 the land which was in the names of the petitioners before grant of patta is less than half hectare of the land while under Section 198 (1) (e) the person residing in the village having less than 1.125 hectare land can be treated as landless agricultural labourer and eligible for grant of patta. Thus the argument raised by the respondents in this respect is not sufficient to proceed with the trial of the case. The proceeding under Section 198 (4) of UP Act No. 1 of 1951 so far as it relates to Shobha Devi, petitioner-1 is concerned, it is time barred and liable to be dropped and the Collector has not committed any illegality in dropping the proceeding against Shobha Devi. 8. So far as Kuldeep is concerned, the respondents - 4 and 5 has filed an information issued under Right to Information Act showing that Kuldeep, petitioner-2 was enrolled in the post of Watchman at Manauri Air Force Station, Allahabad since 10.11.1989. Thus he was in government service on the date of grant of patta in the year 1998 and was not eligible for grant of patta. The counsel for the petitioner submits that Kuldeep was falling in the category under Section 198 (1) (e) of UP Act No. 1 of 1951 and was rightly allotted patta in the year 1998. 9. The counsel for the petitioners submits that patta to the petitioners was granted in the year 1998 and proceeding has been initiated in the year 2013. Thus within the prescribed period of five years no inquiry was held in the matter. 10. This Court in Suresh Giri Vs. Board of Revenue U.P., 2010 (109) RD 566 and Dev Sharma Vs. Board of Revenue U.P., 2011 (9) ADJ 716 , has held that in case of fraud, limitation will start from the date of knowledge of fraud. It is for the Collector to decide the fact relating to knowledge of the fraud prior to decide the objection. Board of Revenue U.P., 2010 (109) RD 566 and Dev Sharma Vs. Board of Revenue U.P., 2011 (9) ADJ 716 , has held that in case of fraud, limitation will start from the date of knowledge of fraud. It is for the Collector to decide the fact relating to knowledge of the fraud prior to decide the objection. As such on this ground also the proceeding is not liable to be dropped. 11. In such circumstances, there are three issues remain to be decided. Firstly Kuldeep, petitioner-2 was in government service, secondly Kuldeep, petitioner-2 was bhumidhar or asami in the village Gubara Taiyabpur and thirdly as to whether Kuldeep was falling in the preferential category as prepared by the resolution of Land Management Committee ? For that purpose the original records relating to allotment of land to the petitioners is required to be seen by the Collector. 12. In such circumstances, the writ petition partly succeeds and is partly allowed. The order of Board of Revenue dated 3.6.2015, so far as it relates to Smt. Shobha Devi, petitioner-1, is hereby quashed and so far as it relates to Kuldeep, petitioner-2 is upheld. The Collector may proceed in pursuance of the remand order of Board of Revenue dated 3.6.2015 against Kuldeep, petitioner-2 and decide the case in accordance with law.