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2022 DIGILAW 1404 (ALL)

Babulal v. State of U. P.

2022-09-05

AJIT KUMAR

body2022
JUDGMENT : Ajit Kumar, J. Heard Sri K.K. Tiwari and Sri Vimlendra Kumar Upadhyay, learned counsel for the petitioner, Sri J.N. Yadav and Sri B.L. Yadav, learned counsel for the lease holder-private respondent No. 8, Sri Bhupendra Kumar Tripathi, learned counsel for the Gaon Sabha and Sri Abhishek Shukla, learned Standing Counsel for the State respondents. 2. The petitioner before this Court has been a complainant in respect of grant of residential leases to various villagers way back in the year 1973. 3. The petitioner vide paragraph 8 to the writ petition has taken specific plea that petitioner's father was one of the eligible persons for the purposes of allotment of the residential lease upon the land which was reserved for persons belonging to the scheduled caste, however, there are certain backward class persons who have been wholly illegally granted lease. In paragraph 8 to the writ petition it has been averred that the petitioner being harijan is entitled to have lease of the land in question. It is argued that grant of residential lease belonging to other backward caste (OBC) was an act of fraud and, therefore, the complaint even if made after lapse of 46 years, it was sufficient enough for exercise of suo motu power under Section 198(4) of the erstwhile U.P.Z.A. & L.R. Act, 1950 or the provisions contained under Section 66 of the U.P. Revenue Code, 2006. 4. During the course of the argument, learned counsel for the petitioner admitted that father of the petitioner got a small house constructed upon such land and the grievance is that people belonging to the OBC category are interfering with the possession of the petitioner who is now living in that house. 5. Per contra, it is argued by learned counsel appearing for the contesting private respondents, learned counsel appearing for the Gaon Sabha and learned Additional Chief Standing Counsel that no proceedings could be instituted after lapse of 46 years in respect of the leases granted way back in the year 1973 as the allottees have come to be settled upon the land by raising constructions of their respective houses inasmuch as petitioner was not even born in the year 1973 what to say about his being major to set up any claim of eligibility. It is also argued that nowhere it has come in the pleadings nor, in the complaint that father of the petitioner had ever put up his claim for grant of lease or made any complaint against alleged illegal allotment of residential lease. It is also argued that other complainant Rajendra Babu has never approached the Court. 6. Having heard learned counsel for the respective parties and their arguments raised across the bar and having perused the complaint made by the petitioner as well as the pleadings raised in the writ petition, I find that the sole ground taken is that the land could not have been allotted to certain persons who did belong to other backward caste. The petitioner who has approached this Court was admittedly born after the year 1973 when the allotment took place and, therefore, the respondents are justified in submitting that the petitioner could not have raised any objection to the allotment proceedings. 7. As far as the father of the petitioner is concerned, the respondents are justified in their argument that nowhere it has come that father of the petitioner ever filed complaint or pursued any matter with the authority. I also find that in the entire pleadings raised before this Court and in the complaint made before the authority concerned, no plea has been taken that father of the petitioner ever set up any claim for allotment, rather I find that during the course of argument the petitioner's counsel admitted that father of the petitioner had raised certain constructions over the abadi land which was reserved for the persons belonging to the scheduled caste. 8. The question of consideration of prayer of petitioner for holding the leases to be illegal after a lapse of nearly 46 years seems to bring about a lost situation alive as if raised at the time of allotment to reopen an issue whereas much water has already flown under the bridge ever since the initial allotment take place made in the year 1973. The parties must have settled themselves upon the land and except for five OBC persons the allotment is not being questioned in respect of other persons who belonged to scheduled caste. The parties must have settled themselves upon the land and except for five OBC persons the allotment is not being questioned in respect of other persons who belonged to scheduled caste. The exercise of suo motu power in matters of allotment even if there are certain irregularities should not be opened after a long long delay upon a complaint and this aspect has come to be examined by the Court in a number of cases in the past. 9. This Court and the Supreme Court in various of their decisions have held that even for the purposes of exercise of suo motu power upon a complaint being made in that behalf, the old and settled issues cannot be permitted to be reopened, more especially when complainant could not have set up any claim at the time of allotment. 10. In the case of Pyare Lal and others v. Deputy Director of Consolidation, Mainpuri Camp at Etah and others; 2005 (98) RD 106, the Court vide paragraph 10 has held thus: ''10. In the present case, the petitioners Nos. 1 and 2 are challenging the allotment made by Gaon Sabha in favour of respondent Nos. 5 and 6. However, they can only be covered under the definition of aggrieved person if they are able to demonstrate that the decision of Gaon Sabha to allot land in favour of respondent Nos. 5 and 6 wrongfully deprived them of their right of allotment of the said land or they had any title in the said land. Section 198 of the Act prescribes the order of preference to be observed while making allotment of land. Unless, petitioners Nos. 1 and 2 demonstrate that they were applicants for allotment and higher in order of preference than respondent Nos. 5 and 6 and had better claim for allotment than respondents Nos. 5 and 6 and have been wrongfully and illegally deprived of their such rights, they cannot be said to be aggrieved persons. There is not even a whisper in the pleadings that the petitioners were also applicants for allotment of the land and were higher in preference than respondents Nos. 5 and 6. In the absence of any such pleadings petitioner Nos. 1 and 2 cannot be said to be aggrieved persons so as to maintain the proceedings for cancellation of the allotment made in favour of respondent Nos. 5 and 6. In the absence of any such pleadings petitioner Nos. 1 and 2 cannot be said to be aggrieved persons so as to maintain the proceedings for cancellation of the allotment made in favour of respondent Nos. 5 and 6 and as such the writ petition filed by them is not maintainable.'' (emphasis added) 11. In the case of Ramker Chauhan v. Commissioner, Azamgarh and others; 2012(8) ADJ 713 , the Court vide paragraph 4 has held thus: ''4. The power to initiate proceedings for cancellation of the land is provided under Section 198(4) of the Act. As per this Section, the Collector on his own motion or on an application of any person aggrieved by an allotment of land, may cancel the said allotment if he is satisfied that the same is irregular. Sub-section (5) of Section 198 provides that 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. Clause (b) of Section 198 (6) provides that every notice to show-cause mentioned in sub-section (5) may be issued in the case of an allotment of land made on or after November 10, 1980, before the expiry of a period of five years from the date of such allotment or lease or up to November 10, 1987, which ever be later. Thus, it nowhere emerges from sub-section (6) of Section 198 that any exception is provided in respect of allotments which have been made in violation of the statute. The very nature of the power exercised by the Collector under Section 198(4) is to seek cancellation of those allotment which have either been obtained irregularly or illegally. No proceeding can be initiated beyond the period of limitation as provided under the statute irrespective of the fact whether the said allotment is irregular or illegal.'' (emphasis added) 12. In the case of Jitendra Kumar @ Gopal v. State of U.P. and others; 2018(8) ADJ 503 , the Court vide paragraph 7 has held thus: ''7. Having heard the learned counsel for the parties, I am of the view that the impugned orders cannot be sustained. First of all, the notice was barred by limitation. In the case of Jitendra Kumar @ Gopal v. State of U.P. and others; 2018(8) ADJ 503 , the Court vide paragraph 7 has held thus: ''7. Having heard the learned counsel for the parties, I am of the view that the impugned orders cannot be sustained. First of all, the notice was barred by limitation. Secondly, the petitioner by an order of the State had been declared a bhumidhar with transferable rights and the cancellation of the patta was of no consequence and thirdly the ground taken for the cancellation of the patta was also not in existence. If the period of limitation as is prescribed under the Act of 1950 expires then no notice can be issued even if there are irregularities in the patta. Further even if a suo motu notice is to be issued by the Collector then also the question of limitation would arise and notices have to be issued well within the time prescribed by the 1950 Act.'' (emphasis added) 13. In the case of Yadram and others v. State of U.P. and others; (2019) 0 Supreme (All) 2712, the Court vide paragraph held thus: ''5. Having heard learned counsel for the petitioners, learned Standing Counsel and the learned counsel for the Gaon Sabha, I am of the view that an application for cancellation of patta could be filed only within three years of the grant of the same as has been held by this Court in Writ-C No. 22369 of 2009 (Saroj Devi v. State of U.P. and others) decided on 19.4.2019. Further, I hold that even if the application was filed, as has been alleged to have been filed, on 18.12.1992, the same could not be acted upon after notices were issued in the year 2006 as has been held by this Court in Suresh Giri and others v. Board of Revenue, Allahabad and others Limitation is a question of jurisdiction and it can be raised at any point of time as has been held by the Supreme Court in Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead) through Legal Representatives and others, 2015 (128) rd 227 (SC).'' (emphasis added) 14. Again in recent judgment of Chhidda and others v. State of U.P. and others; 2019(8) ADJ 122 , the Court considered various aspects of the matter in relation to the power of Collector under Section 198(4) of U.P.Z.A. & L.R. Act, 1950 and the limitations prescribed under Section 198(6) of U.P.Z.A. &L.R. Act, 1950, the Court vide paragraph 15 has held thus: ''15. The said argument does not merits acceptance for the sole reason that the land in question has to be set apart for public purposes under the U.P. Consolidation of Holdings Act. In the present case there is specific argument and document on record to establish that the consolidation of holdings proceedings pertaining to the land in question were never finalized and were dropped mid away and thus, it cannot be held that any bar as provided under Section 132 of the Act was triggered relating to the land in question. I am also not impressed with the arguments that in the cases which are covered by Section 132 of the Act, no limitation would apply. In this regard, it is relevant to mention that the Hon'ble Supreme Court has categorically held that where no limitation is prescribed action should be taken within a reasonable time, in the present case the proceedings were initiated after about 16 years which can never be termed as a reasonable period. The relevant observation of the Supreme Court in the case of Joint Collector Ranga Reddy District and another v. D. Narsing Rao and others, (2015) 3 SCC 695 and held as under: ''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. 31. 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. 31. 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 vests such power in an authority. 32. 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. 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.'' (emphasis added) 15. Thus principle has been discussed that the law of limitation has been provided in the Statute also gives accrual to the rights of other side. Metaphorically, it is true that a deep-rooted tree should ordinarily not be uprooted because the roots are so embedded inside the earth that it may have a very devastating impact on the nature's ecosystem whereas the new plants can be replanted anywhere. Similarly here also, if today the controversy regarding allotment which is already settled is reopened after lapse of more than 4 decades it will cause more damage to public interest than to serve it. So even on this count also, this Court will be reluctant in reopening an issue of allotment of the year 1973. 16. Besides above, the petitioner being a complainant must have a right on the date of allotment in question. In the year 1973, the complainant was not born and, therefore, he could not have maintained any right to get allotment of land as residential lease. Canvassing for right of father, who himself was not vigilant as he never set up any claim of his own, cannot be permitted and no such complaint at the instance of son be entertained after a lapse of four decades. 17. In such above view of the matter, therefore, I decline to interfere in the matter. 18. It is, however, open for the petitioner to apply for residential lease if Gaon Sabha proposes to do in future. Insofar as the petitioner's right to continue in a house constructed upon such land without there being any interference of third party is continued the petitioner always enjoys liberty to apply for a common law remedy. 19. Writ petition lacks merit and is, accordingly, dismissed.