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2023 DIGILAW 199 (ALL)

Phool Singh v. State of U. P.

2023-01-19

CHANDRA KUMAR RAI

body2023
JUDGMENT Chandra Kumar Rai, J. Heard Mr. Umar Iqbal Khan, Advocate assisted by Mr. Laxmi Shankar, learned counsel for the petitioners, Mr. L.K. Tripathi, learned Additional Chief Standing Counsel for respondent nos.1 & 2 and Mr. Sunil Kumar Singh, learned counsel for respondent no.3 i.e. Land Management Committee. 2. The brief facts of the case is that petitioners, who are resident of Village- Budhiya, Pargana- Dasna, Tahsil- Dhaulana, District- Hapur, are pursuing the case for cancellation of lease under Section 198 (4) of U.P.Z.A. & L.R. Act against the allottee, who were granted patta through proposal dated 2.1.1997 and the patta was approved on 26.2.1997 by Sub-Divisional Officer in respect of 60 allottees out of 84. According to the petitioners out of 60 allottees, so many are ineligible, as such, their patta are to be cancelled. Complaints were made by private persons for cancellation on the ground that patta is based on fraud, accordingly, a Case No.15 of 1997-98, under Section 198 (4) of U.P.Z.A. & L.R. Act was registered before Additional Collector. The Gaon Sabha supported the patta granted to the patta holders, accordingly, Additional Collector vide order dated 21.1.1999 dismissed the application filed under Section 198 (4) of U.P.Z.A. & L.R. Act but liberty was given to make a further enquiry in respect to ineligible persons. Against the order dated 21.1.1999, the revision was allowed by Additional Commissioner. Revision filed by petitioners against the order of Additional Commissioner was pending before the Board of Revenue. A fresh patta cancellation proceeding has been initiated by private complainant / petitioners after 14 years from 26.2.1997, which has been registered as Case No.D2014117300648 (Phool Singh v. Pushpa & Others), under Section 198 (4) of U.P.Z.A & L.R. Act and Additional Collector vide order dated 28.11.2014 cancelled the allotment dated 2.1.1997 / 26.2.1997 in respect of 31 allottees out of 60. Against the order dated 28.11.2014, allottees, Pushpa Devi & Others filed Revision No.6 of 2014-15 (Pushpa Devi & Others v. Phool Singh & Others), under Section 333 of U.P.Z.A. & L.R. Act, which was allowed by Additional Commissioner, Meerut Division, Meerut setting aside the order dated 15.4.2015 on the ground that proceedings are time barred due to provisions contained under Section 198 (6) of U.P.Z.A. & L.R. Act as well as the same is hit by principle of res-judicata. Petitioners challenged the order dated 15.4.2015 through Revision No.81 of 2015 (Computerized Case No.C201511000000081), under Section 333 of U.P.Z.A. & L.R. Act, which has been dismissed by the Board of Revenue vide order dated 13.5.2022, hence this writ petition for quashing the orders dated 13.5.2022 passed in different revision by the Board of Revenue, order dated 15.4.2015 passed by Additional Commissioner in Revision No.6/ 2014-15 as well as to affirm the order dated 28.11.2014 passed by Additional Collector, the other reliefs were also claimed in the writ petition. 3. Counsel for the petitioners submitted that Additional Collector vide order dated 28.11.2014 has rightly cancelled the patta of 31 allottees exercising jurisdiction, under Section 198 (4) of U.P.Z.A. & L.R. Act. He further submitted that fraud vitiates the illegal proceedings, as such, the illegal and fraudulent patta was rightly cancelled by Additional Collector vide order dated 28.11.2014 but the order dated 28.11.2014 has been illegally set aside in revisional exercise of jurisdiction by Additional Commissioner on the ground of Section 198 (6) of U.P.Z.A & L.R. Act as well as on principle of res-judicata, which is wholly illegal approach of Additional Commissioner. He further submitted that quasi-judicial authority has illegally ignored the fact finding report submitted by the authorities. He further submitted that record of the proceedings be summoned and appropriate enquiry be setup to protect the State property. He further submitted that there is violation of Section 28 (C) of U.P. Panchayat Raj Act, which vitiates the allotment made in favour of ineligible person. Counsel for the petitioners filed written argument also in support of his oral argument. He placed reliance upon the following judgments of Hon'ble Apex Court as well as of High Court:- On the point of exercise of jurisdiction under Article 226 of Constitution of India:- "(i) 2003 (3) MLJ 436 , Salem Cooperative Society Sugar Mill Limited, Mohanur v. Kuppannan. (ii) 2002 (1) SCC 319 , Ouseph Mathai & Others v. M. Abdul Kadir. (iii) (1998) 8 SCC 1 , Whirlpool Corporation v. Registrar of Trade Marks. On the point of aggrieved persons:- (i) 2011 (113) RD 642, Janki Devi v. State of U.P." 4. I have considered the argument advanced by learned counsel for the petitioners and perused the records. 5. (iii) (1998) 8 SCC 1 , Whirlpool Corporation v. Registrar of Trade Marks. On the point of aggrieved persons:- (i) 2011 (113) RD 642, Janki Devi v. State of U.P." 4. I have considered the argument advanced by learned counsel for the petitioners and perused the records. 5. There is no dispute about the fact that patta proposed on 2.1.1997 in favour of 84 persons, was approved in favour of 60 allottees vide order dated 26.2.1997 passed by Sub- Divisional Officer. There is also no dispute about the fact that proceedings for cancellation have been initiated on the private complaint and the first complaint was ultimately decided on 21.1.1999, under Section 198 (4) of U.P.Z.A. & L.R. Act by Additional Collector rejecting the cancellation application but liberty was given to make enquiry in respect of ineligible person. There is also no dispute about the fact that Revision No.70 of 2002-03 filed by allottees, Nahar Singh & Others, was disposed of and liberty for making enquiry against some ineligible allottees was again ordered. There is also no dispute about the fact that complainant, Phool Singh and Others, who are petitioners before this Court also filed Revision No.17 of 2017 before the Board of Revenue, which was dismissed vide order dated 13.5.2022, holding that there is no necessity to make enquiry of ineligibility, if once the case under Section 198 (4) of U.P.Z.A. & L.R. Act has been dismissed. There is also no dispute about the fact that second proceeding initiated for cancellation of patta by private party in the year 2011 i.e. after about 14 years, was allowed by Additional Collector vide order dated 28.11.2014, hence Revision No.6 of 2014-15 filed by allottees against the order dated 28.11.2014, was allowed by Additional Commissioner vide order dated 15.4.2015 and the second patta cancellation proceeding, under Section 198 (4) of U.P.Z.A & L.R. Act was found in violation of Section 198 (6) of U.P.Z.A. & L.R. Act as well as the same is hit by principle of res-judicata. There is also no dispute about the fact that Revision No.80 of 2015 filed by State of U.P. against the order dated 15.4.2015 has been dismissed vide order dated 13.5.2022 by the Board of Revenue. 6. There is also no dispute about the fact that Revision No.80 of 2015 filed by State of U.P. against the order dated 15.4.2015 has been dismissed vide order dated 13.5.2022 by the Board of Revenue. 6. There is material that first patta cancellation proceeding, which was initiated within limitation, was dismissed vide order dated 21.1.1999 finding no error or illegality in grant of patta approved on 26.2.1997, as such, the order to make enquiry in respect of patta granted in 1997 was wholly illegal and arbitrary, as such, the same has been ultimately found by the Board of Revenue order for making enquiry in respect of same allottees while rejecting the entire case for patta cancellation as illegal. This Court is also of the view that if patta cancellation proceeding initiated by private complaint has been cancelled finding that there was violation of the Act and Rules, then there is no question for making enquiry in respect of some of the allottees and the impugned orders do not suffer from any error of law. 7. So far as second patta cancellation proceeding initiated by some private complainant after 14 years for grant of patta in spite of the pendency of the first patta cancellation proceedings were found to be hit by provisions of Section 198 (6) of U.P.Z.A. & L.R. Act as well as by principle of res-judicata. This Court in Writ-C No.1192 of 2013 (Rishi Pal & Others v. State of U.P. & Others) decided on 6.3.2018 discussed the scope of Sections 198 (6) of U.P.Z.A. & L.R. Act, the relevant portion of the judgment is as follows: "Having heard the learned counsel for the parties, I am of the view that the orders dated 1.6.2011 and 23.3.2012 cannot be sustained and are to be quashed. The pattas were executed in the year 1992. Under Sub-section (6) of Section 195 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the complaint which was filed in the year 2003-04 was barred by limitation by almost six years. Further, I hold that since the question of limitation goes to the very root of the matter, even though it was not agitated before the courts below, it can definitely be raised here in this Court. Section 3 of the Indian Limitation Act would also be relevant. Further, I hold that since the question of limitation goes to the very root of the matter, even though it was not agitated before the courts below, it can definitely be raised here in this Court. Section 3 of the Indian Limitation Act would also be relevant. The same is being reproduced here as under: "Section 3.- Bar of limitation - (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purpose of this Act, - (a) A suit is instituted, - (i) in an ordinary case, when the plaint is presented to the proper officer; (ii) in the case of pauper, when his application for leave to sue as a pauper is made; and (iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set off or a counter-claim, shall be treated as a separate suit and shall be deemed to have been instituted - (i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter-claim, on the date on which the counter-claim is made in Court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court" The question of limitation had to be therefore looked into by the Court even if he defendant/opposite party had not raised it. Further, after the application which was filed by Hardas was dismissed for non prosecution then he alone could have filed the application for restoration. State was a party whose actions were being adjudicated upon in the complaint which was filed by Hardas. It could not therefore, have supported the restoration application of Hardas. The writ petition is, therefore, allowed. The orders dated 1.6.2011 and 23.3.2012 are quashed. It is made clear that this relief would be confined to the petitioners who had filed the instant writ petition." 8. It could not therefore, have supported the restoration application of Hardas. The writ petition is, therefore, allowed. The orders dated 1.6.2011 and 23.3.2012 are quashed. It is made clear that this relief would be confined to the petitioners who had filed the instant writ petition." 8. Considering the ratio of law laid down by this Court in Rishi Pal (supra), the impugned judgment passed by the Additional Commissioner and the Board of Revenue on the second patta cancellation proceeding is just and proper as the same is hit by Section 198 (6) of U.P.Z.A. & L.R. Act as well as the principle of res-judicata. 9. The another aspect of the case is that in place of challenging the patta by the State/Gaon Sabha, granted in the year 1997 to the allottees, the writ petition under Article 226 of the Constitution of India filed by private complainants before this Court is abuse of process of law. 10. It is also material that some petitioners as private complainants have initiated second patta cancellation proceedings ,which were held to be barred by Section 198 (4) of U.P.Z.A. & L.R. Act as well as res-judicata, as such, the writ petition before this Court at the instance of petitioners / private complainants in place of State/ Gaon Sabha / Land Management Committee is nothing but harassment of the allottees, who were granted patta in the year 1997 i.e. 25 years before. 11. Case law cited by learned counsel for the petitioners will not be applicable in the present set of case and circumstances, the instant proceedings relates to Section 198 (4) of U.P.Z.A. & L.R. Act, which will be conducted in accordance with the provisions of U.P.Z.A. & L.R. Act as well as the rules framed thereunder, any other procedure cannot be adopted to examine the lease granted to lease holders. 12. Considering the entire facts and circumstances of the case as well as ratio of law laid down by this Court in Rishi Pal (supra), no interference is required against the impugned orders. 13. The writ petition is devoid of merit and the same is dismissed accordingly.