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2019 DIGILAW 1003 (ALL)

Saroj Devi v. State of UP

2019-04-19

SIDDHARTHA VARMA

body2019
JUDGMENT : SIDDHARTHA VARMA, J. 1. The instant writ petition has been filed against the order dated 17.7.2006 passed by the Sub-Divisional Magistrate, Khurja, District Bulandshahar and against the order dated 27.8.2008 passed by the Revisional Court by which the earlier order was confirmed. 2. Brief facts of the case are that when on the basis of a complaint of the Pradhan-Ramveer Singh dated 25.3.2006, a report was submitted by the Tehsildar dated 30.6.2006 with regard to plot no.56 measuring 0.114 hectare and plot no.246 measuring 0.847 hectare (total 0.961 hectare) of the petitioner that they were wrongly entered as her bhumidhari with non-transferable rights then the entries in the revenue records in her favour were struck off and the land in question was entered as a property of the Gaon Sabha. Allegedly, a notice was issued to the petitioner which was never received by her and on the basis of the statement made by the Pradhan, her name was struck off by the order dated 17.6.2006. 3. Learned counsel for the petitioner has assailed the orders on the following grounds: (i) When it was concluded by the Sub-Divisional Officer that the petitioner was not living in the village and, therefore, the notice was not served upon her then an effort ought to have been made to serve the petitioner by publication. (ii) In the absence of any notice, the order becomes void. (iii) The petitioner was allotted the patta in the year 1984. Thereafter her name was entered in the various revenue records and continuously after 1984 the entries in favour of the petitioner viz-a-viz plot nos.56 and 246 were found in the revenue records. Never were the entries doubted. The petitioner also paid her revenue and the revenue was also accepted by the Tehsil Authorities. Therefore, for the Sub-Divisional Officer to say that the records, with regard to the allotment of the pattas and also with regard to the grant of patta, were not available with the Tehsil Authorities which necessitated the cancelling of the pattas and removal of the name of the petitioner, was patently erroneous. Learned counsel submitted that in the year 1984 when patta was granted to the petitioner, there were 83 others who were granted pattas and no proceeding with regard to any of the other allottees was undertaken. Learned counsel submitted that in the year 1984 when patta was granted to the petitioner, there were 83 others who were granted pattas and no proceeding with regard to any of the other allottees was undertaken. In fact, learned counsel relying upon Annexure-RA-1 which is a Khatauni of the years 1388F to 1396F has drawn the attention to Serial No.28 which deals with the Khata of the petitioner and has also drawn the attention of the Court to the noting against Serial No.28, which is as follows : ^^vkns'k vuqlkj Jheku uk;c rglhynkj [kqtkZ }kjk iÍk jftLVj dzekad la0 6522@3387 ds [ksr 246 3 ch?kk 19 fcLok ls xzke lekt [kkfjt djds Jherh ljkst nsoh ifRu jktiky flag fuoklh xzke crkSj vladze.kh; Hkwfe/kj ntZ gksosA 3-3-87^^ In this context, learned counsel submits that when there were no records available with the Tehsil Authorities, then it could not be said that the petitioner was not granted any patta. He submitted that the duty to keep the record properly was that of the Registrar Kanoongo and if the record was not traceable, no adverse inference could be drawn against the petitioner. Learned counsel for the petitioner has also drawn the attention of the Court to Annexure Nos.RA-3, RA-4, RA-5, RA-6, RA-7, RA-8, RA-9 and RA-10 and submitted that they were the Khataunis with regard to the other allottees who were granted pattas along with the petitioner and their pattas were never cancelled and in fact they had now been made bhumidhars with transferable rights. The names of the pattedars, whose Khataunis had been attached as Annexure Nos.RA-1, and RA-3 to RA-10, also find place in the original Khatauni in which the name of the petitioner was at Serial No.28 and, therefore, the petitioner submits that without perusing these records, the Sub-Divisional Officer had wrongly concluded that there was no patta in favour of the petitioner. (iv) As per section 198(4) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, the Collector is the Authority who can cancel the patta but in the instant case, the Sub-Divisional Officer had initiated the proceedings and had also cancelled the patta and, therefore, the impugned orders were passed by an authority which had no jurisdiction to pass the order. (v) The petitioner was granted the lease in the year 1984 and the cancellation proceedings were initiated in the year 2006. (v) The petitioner was granted the lease in the year 1984 and the cancellation proceedings were initiated in the year 2006. Learned counsel for the petitioner has stated that section 198 of the Act, as it stood on the date when the proceedings were initiated, did not have any limitation prescribed for the filing of the application for the cancellation of a patta. As per Appendix-III, which had been prepared under Rule 338 of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 at Serial No.24, the application raising objections to allotment of land could be filed within 6 months of the grant of the patta. Learned counsel for the petitioner relying upon this provision submitted that the application could have been filed only within six months of the allotment of the land. In the instant case, he submits that the application was brought almost after 22 years and, therefore, it was barred by limitation. Learned counsel for the petitioner while was taking recourse to Item 24 in Appendix-III, pointed out that even though the limitation for bringing the application for cancellation of the allotment of land was earlier provided under section 198(2) of the Act and on the date when the application/complaint was filed, section 198(2) had been removed from the Statute book, yet the period provided for filing the application, since was not provided anywhere else, it had to be taken to be six months. However, in the alternative, he submitted that since section 198(2) of the Act had been deleted from the Statute book then the limitation to file the application should be taken from the Limitation Act. Learned counsel for the petitioner submitted that as per section 341 of the U.P. Zamindari Abolition and Land Reforms Act, Limitation Act was applicable in the proceedings under the U.P. Zamindari Abolition and Land Reforms Act and, therefore, if for any reason there was no limitation provided for filing of the application under section 198, then recourse had to be taken to the provisions of the Limitation Act and the Limitation Act provided that if any Act did not provide the limitation for the filing of any application, then the residual clause had to be taken recourse to. Learned counsel relied upon Article 137 which provided that the limitation for filing an application for which no period of limitation had been provided elsewhere in the Limitation Act, would be three years. In this regard, learned counsel has relied upon a judgment of this Court reported in Chandradeo Pandey & Ors. Vs. Sukhdeo Rai & Ors., (1972) AIR Allahabad 504 and submitted that Article 137 of the Limitation Act when was applied to applications even under the Code of Civil Procedure for which no limitation had been provided, then this period of limitation could be definitely made applicable to applications under the U.P. Zamindari Abolition and Land Reforms Act where no period of limitation was provided. Learned counsel submitted that when no limitation had been provided for filing of the application for the cancellation of a patta, then recourse had to be taken to Article 137 of the Limitation Act as Limitation Act had been specifically applied to the proceedings under the U.P. Zamindari Abolition and Land Reforms Act and, therefore, submits that if Item No.24 of Appendix-III would be deemed to be deleted because of the deletion of section 198(2) of the U.P. Zamindari Abolition and Land Reforms Act then the limitation for filing of application for cancellation of a patta would be three years. Learned counsel for the petitioner submitted that the period of limitation for taking action for the cancellation of patta would, however, not be applied if the patta was taken by the petitioner by exercising fraud etc. However, he submits that fraud is something which had to be established beyond all reasonable doubt and a finding as to whether fraud had been committed, cannot be based on suspicion and conjectures. In this regard, learned counsel relied upon the head-note of the judgment reported in Narayana Chettyar & Anr. Vs. Official Assignee, (1941) AIR PC 93 : A.L.N. High Court Rangoon & Anr., wherein the Privy Council had held as follows : "fraud like any other charge of a criminal proceedings, must be established beyond reasonable doubt. A finding as to fraud cannot be based on suspicion and conjectures". 4. Vs. Official Assignee, (1941) AIR PC 93 : A.L.N. High Court Rangoon & Anr., wherein the Privy Council had held as follows : "fraud like any other charge of a criminal proceedings, must be established beyond reasonable doubt. A finding as to fraud cannot be based on suspicion and conjectures". 4. In the instant case, learned counsel for the petitioner submits that there was no finding of fraud arrived at after a proper framing of charge of fraud and, therefore, a finding of fraud on the basis of mere conjectures cannot be taken to be correct at all. In the result, learned counsel for the petitioner submits that the application for the cancellation of the patta could have been brought within three years from the grant of it and not beyond it. However, if Appendix-III of the Act had to be relied upon then the application could be filed within 6 months of the grant of patta. Learned counsel, therefore, submits that when the application was thoroughly barred by limitation, it could not be adjudicated upon and should have been thrown out at the first instance. Learned counsel for the petitioner further relying upon the decisions of this Court reported in Suresh Giri & Ors. Vs. Board of Revenue, Allahabad & Ors., (2010) ACJ 528 and Subhag & Anr. Vs. Board of Revenue, U.P. at Allahabad & Ors., (2011) 114 RevDec 219 submitted that under section 198(6), the period for issuing notice before cancellation of allotment was five years from the date of allotment, if the allotment was made after 10.11.1980. However, learned counsel for the petitioner submitted that when the application itself could not have been entertained, the question of limitation for issuing of notice would not have arisen at all. 5. In the end, learned counsel for the petitioner submitted that when the petitioner was being singled out from the list of 84 allottees, then it could be safely stated that the action was malafide. Learned counsel for the petitioner, however, submitted that even if the patta was found to be non-existent since the petitioner was entered as a Bhumidhar since 1984 till the date of cancellation, it would be deemed that the petitioner was in possession over Gaon Sabha land and advantage ought to have been given to her under section 122-B(4F) of the U.P. Zamindari Abolition and Land Reforms Act. 6. 6. Learned Standing Counsel Sri Rajesh Kumar, however, in reply submitted that when no record was available with the Tehsil, the simple entry of the name of the petitioner in the Khataunis would not give the petitioner any right. Learned Standing Counsel also submitted that when no limitation was provided for filing an application then it would be deemed that the application could be filed wherever a the fault was detected. The arguments of the learned Standing Counsel was also adopted by the learned counsel appearing for the Gaon Sabha. 7. Having heard learned counsel for the parties, I am of the definite view that the orders passed cannot be sustained in the eyes of law and, therefore, deserve to be quashed. 8. The patta was granted in the year 1984. The limitation if had to be taken as per Appendix-III (Item No.24), then it ought to have been six months from the date of allotment and if it was to be presumed that Item No.24 would stand deleted because of the deletion of section 198(2), then because the Limitation Act had been applied to the proceedings under the U.P. Zamindari Abolition and Land Reforms Act, the only irresistible conclusion would be that for the filing of the application for cancellation of a patta, the limitation would be three years. Further, I find that since the finding of fraud was based only on surmises and conjectures and was not arrived at after framing of a definite charge, it cannot be said that there was any fraud committed by the petitioner in obtaining the patta and, therefore, the period of limitation had to be looked into before adjudicating upon the complaint. I further find that the observation made by the Sub-Divisional Officer that the entries made in the revenue records viz-a-viz the petitioner, had to be deleted as no patta was found to be in existence and no record was available regarding the allotment of patta also, is unsustainable. The khatauni entries since the year 1984 till the date when the petitioner's patta was cancelled definitely show that there were orders on the basis of which the name of the petitioner was entered against plot nos.56 and 246. The khatauni entries since the year 1984 till the date when the petitioner's patta was cancelled definitely show that there were orders on the basis of which the name of the petitioner was entered against plot nos.56 and 246. Still further if the khataunis attached as Annexures RA-3 to RA-10 are seen, it becomes abundantly clear that the allottees who were allotted pattas along with the petitioner in the year 1984 had continued to be the pattedars and now were also bhumidhars with transferable rights. So far as the finding regarding the absence of record is concerned, suffice it to say that it is the responsibility of the Revenue Authorities to keep the records properly. If the khatauni entries of almost 22 years is to be believed then it becomes difficult to understand as to how it had been found that there was no basis for it. The entries were there especially when there was an order transcribed in the khatauni of the years 1388 to 1396 Fasli which stated that the name was mutated in the khatauni on the basis of the patta granted to the petitioner. 9. So far as the findings of fraud etc. are concerned, again it can be specifically stated that when there was no charge framed on the basis of which the finding of fraud was arrived at, the finding becomes absolutely unsustainable in the eyes of law. Also the fact that the Sub-Divisional Officer had passed the order in the face of the definite provision contained under section 198(4) of the Act that the Collector alone could cancel the patta, the order becomes without jurisdiction. 10. Under such circumstances, the order dated 17.7.2006 passed by the Sub-Divisional Magistrate, Khurja, District Bulandshahar and the order dated 27.8.2008 passed by the Revisional Court are quashed. 11. The writ petition is, accordingly, allowed.