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2015 DIGILAW 613 (ALL)

Shyam Bihari v. State of U. P.

2015-03-27

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. 1. Both these writ petitions arise out of the same proceedings under section 198(4) of the U.P. Zamindari Abolition and Land Reforms Act and involve identical questions and have been heard and are being decided together. I have heard Sri Rajesh Mishra learned Counsel for the petitioners in both writ petitions as also Sri Ashish Srivastava who represents respondent No. 5 Land Management Committee and learned Standing Counsel. 2. Suo motu proceedings were initiated for cancellation of leases alleged to have been executed in favour of about thirty six persons. These thirty six persons had been allotted respective areas of Plot Nos. 67/1, 67/20 and 67 having a total area of 0.6070 hectare. The allotments were made in the year 1967. 3. Notice of suo moto proceedings notices were issued on 3.3.2008. On receipt thereof the petitioners are stated to have filed their objections. The Collector, Firozabad by his order dated 8.7.2009 cancelled the allotments in favour of all the thirty six allottees. This order of the Collector is common in both the petitions. 4. Against the order of the Collector separate revisions were filed by the petitioners in those two writ petitions and they have been dismissed by separate orders. However, both these revisions have been dismissed for the identical reasons that the land which was subject matter of allotment was reserved for pasture and was therefore land of public utility within the meaning of section 132 of the U.P.Z.A. and L.R. Act wherein bhumidhari rights could not accrue in favour of any person. 5. The primary contention of learned Counsel for the petitioners in both the writ petitions is that since the allotment was made in the year 1967 no notice could have been issued under section 198(4) almost forty years after the allotment was made in view of section 198(6) of the Act. It is therefore submitted that the proceedings were clearly barred by time and that the two Courts below have passed the impugned orders without adverting to this aspect of the matter. 6. The additional submission insofar as Writ Petition No. 10405 of 2015 is concerned is that after the allotment was made, the allottee, in pursuance of the government orders became bhumidhars with transferable rights. They thereafter executed a sale deed in favour of the petitioners in this writ petition. 6. The additional submission insofar as Writ Petition No. 10405 of 2015 is concerned is that after the allotment was made, the allottee, in pursuance of the government orders became bhumidhars with transferable rights. They thereafter executed a sale deed in favour of the petitioners in this writ petition. It is therefore contended that the petitioners in this Writ Petition No. 10405 of 2015 are bona fide purchasers of the land for notice and the allotment, therefore, could not be cancelled. 7. It is further submitted that the petitioners are poor persons and in case the impugned orders are not set aside they stand to suffer irreparable injury inasmuch as they have already paid the sale consideration for the land in question but are now going to be deprived of the land in pursuance of the impugned order. In support of his contention, as regards the question of limitation, learned Counsel for the petitioners has placed reliance on the judgment in the case of Ram Dev and another v. State of U.P. and others 2008 (105) RD 307 (HC), specially paragraph 24 of the said judgment. 8. He has also placed reliance on a judgment in the case of In re : Begum Shanti Tufail Ahmad Khan v. reported in 2006 (1) ADJ 332 , specially paragraph 22 of this judgment. 9. The next judgment relied upon is in the case of Suresh Giri and others v. Board of Revenue, U.P. at Allahabad and others 2010 (3) ALJ 354 , wherein it has been held that the period of limitation provided under section 198(6) for cancellation of a lease would be the same even in suo-moto proceedings. 10. The alternative submission made by learned Counsel for the petitioners is that since they have remained in possession over the land in question for an extremely long period of time, their possession may be regularized subject to payment of such adequate damages as may be determined by this court. In support of this submission reliance has been placed upon a judgment in the case of Shree Pal and others v. State of U.P. and others and Budhaee v. Collector, Fatehpur and others 2005 (98) RD 741 (HC). 11. Learned Counsel for the Land Management Committee has submitted that the land which was subject matter of allotment was admittedly reserved as pasture land. 11. Learned Counsel for the Land Management Committee has submitted that the land which was subject matter of allotment was admittedly reserved as pasture land. It was therefore land of public utility covered under section 132 of the Act, therefore, the same could not have been the subject matter of allotment in view of the clear embargo contained in the section. The allotment, therefore, was void ab-initio and therefore the question of limitation raised by learned Counsel for the petitioners is of no consequence. Since the allotment was void there is no valid allotment in the eyes of law and a void transaction has to be ignored and that law of limitation is not attracted in the case of a void transaction/allotment. 12. Upon the question of regularization of the possession of petitioners subject to payment of adequate damages, Sri Ashish Srivastava has placed reliance on a Division Bench decision of this Court in the case of Jagat Narain and 15 others v. State of U.P. Thru Secry. and 3 others, decided on 9.2.2015. This judgment has been rendered in a reference made to the Division Bench. Reference was made for examining the legal position as to whether directions could be issued for regularizing the possession of unauthorized persons subject to payment of damages. 13. The Division Bench after examining the various judgments in this regard including the judgment rendered by the Single Judge in the case of Budhaee which has also been relied upon by the petitioners, has held that an order for eviction cannot be substituted by an order for payment of damages in lieu of eviction as it is not consistent with law. 14. I have considered the submissions made by learned Counsel for the parties and perused the record. 15. Section 198(6) provides the limitation for issuance of show cause notice for cancellation of lease. It consists of two parts, the first part provides the limitation for issuance of notice for cancellation of allotment before November 10, 1980 and it provides that the show cause notice can be issued before expiry of a period of seven years from the said date, namely November, 10, 1980. This is the limitation which would be applicable in the instant case. It is therefore, the contention of learned Counsel for the petitioners that the show cause notice could have been issued on or before November, 10, 1987 and not thereafter. This is the limitation which would be applicable in the instant case. It is therefore, the contention of learned Counsel for the petitioners that the show cause notice could have been issued on or before November, 10, 1987 and not thereafter. In the instant case, since the notices was issued in the year 2008 the proceedings were clearly barred by time. 16. The submission of learned Counsel for the petitioners in this regard would definitely have substance in case the lease was sought to be cancelled on the ground of some irregularity. However, in the instant case, the cancellation is sought on the ground that the land which is subject matter of allotment was land covered by section 132 of the Act. The said section 132 reads as follows "132 Land in which (bhumidhari) rights shall not accrue--Notwithstanding anything contained in section 131, but without prejudice to the provisions of section 19, (bhumidhari) rights shall not accrue in-- (a) pasture lands or lands covered by water and used for the purpose of growing singhara or other produce or land in the bed of a river and used for casual or occasional cultivation; (b) such tracts of shifting or unstable cultivation as the State Government may specify by notification in the Gazette; and (c) lands declared by the State Government by notification in the Official Gazette, to be intended or set apart for taungya plantation or grove lands of a (Gaon Sabha) or a Local Authority or land acquired or held for a public purpose and in particular and without prejudice to the generality of this clause-- (i) land set apart for military encamping grounds; (ii) lands included within railway or canal boundaries' (iii) lands situate within the limits of any cantonment; (iv) lands included in sullage farms or trenching grounds belonging as such to a local authority; (v) lands acquired by a town improvement trust in accordance with a scheme sanctioned under section42 of the U.P. Town Improvement Act, 1919 (U.P. Act VII of 1919) or by a municipality for a purpose mentioned in Clause (a) or Clause (c) of section 8 of the U.P. Municipalities Act, 1916 (U.P. Act VII of 1916); and (vi) lands set apart for public purposes under the U.P. Consolidation of Holdings Act, 1953 (U.P. Act V of 1954)." 17. The plots in question are admittedly reserved for pasture land and therefore in view of section 132 no bhumidhari rights could accrue herein. The embargo contained in section 132 is absolute. It is therefore clear that the land in question being pasture land could not have been the subject matter of allotment and in view of the total embargo imposed by section 132 of the Act, the said allotment was void ab-initio. 18. The contention of learned Counsel for the Land Management Committee that a lease which is void ab-initio is necessarily to be ignored. No limitation for ignoring it is provided under law. This submission has force. For the same reason the judgments relied upon by learned Counsel for the petitioners have no application in the instant case and therefore do not help the petitioners. 19. Insofar as, the judgment in the case of Ram Dev (supra) is concerned it would be relevant to note the following observation therein: "As far as the view of the Trial Court that question of eligibility has become irrelevant when the land is covered under section 132 and it could not have been leased out, no exception can be taken". In view of what has been extracted above it must necessarily be held that the judgment in the case of Ram Dev relied upon by the petitioner, far from helping his case, is directly against him. 20. Even the question of regularizing the possession of the petitioners subject to payment of adequate damages, has been categorically decided by the Division Bench of this Court in the case of Jagat Narain (supra) wherein it has been held that such a approach is not proper being contrary to the provisions of U.P.Z.A. and L.R. Act. Also the judgments relied upon by the petitioners have been overruled by the Division Bench and therefore the submission of learned Counsel for the petitioners in this regard lacks substance. In view of the above discussion the writ petition is completely devoid of merits and is dismissed.