Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 227 (ALL)

Shyam Bihari Yadav v. State Of U. P.

2024-01-19

CHANDRA KUMAR RAI

body2024
JUDGMENT : Chandra Kumar Rai, J. 1. Counsel for the petitioners is permitted to implead the Gaon Sabha as respondent no.5 and shall serve the copy upon Mr. Rameshwar Prasad Shukla, learned counsel for respondent-Gaon Sabha. 2. Heard Mr. R.C. Upadhyay, learned counsel for the petitioners, Mr. Rajesh Kumar Tiwari, learned Additional Chief Standing Counsel for the State respondents and Mr. Rameshwar Prasad Shukla, learned counsel for respondent no.5, Gaon Sabha. 3. Brief facts of the case are that lease for agriculture purpose was executed in favour of private respondents on 5.6.1994 in respect to plot No. 73/ 0.042, 168/ 0.055, 271/ 0.272, 280/ 0.111. Proceeding for cancellation of lease executed on 5.6.1994 under Section 198 (4) of U.P.Z.A. and L.R. Act initiated by one Sommar was dismissed vide order dated 11.9.2003. Sommar challenged the order dated 11.9.2003 through revision under Section 333 of U.P.Z.A. and L.R. Act before Commissioner which was partly allowed by Commissioner vide order dated 19.11.2004 cancelling lease of Durgawati for part of the area. A restoration application dated 7.6.2019 filed by D.G.C. (Revenue) after 14 years 6 months against the order dated 19.11.2004 was rejected by Commissioner vide order dated 19.1.2023 hence this public interest litigation on behalf of petitioners being resident of Village for the following reliefs:- "(i) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 19.11.2004 passed in revision No. 96/ 135-A under Section 333 of U.P.Z.A. and L.R. Act in revision Sommar Vs. Durgawati by the Commissioner, Azamgarh and revisional order dated 19.1.2023 passed by Commissioner, Azamgarh in revision No. 137/A C201915000001235 of 2019-23 Sommar Vs. Durgawati and order dated 11.9.2003 passed by District Magistrate Azamgarh. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents concern to remove the illegal encroachment to the respondent no.4 on the Gata Nos. 73, 168, Gata Nos. 269 and 280 total area 480 kadi granted patta in 1994 in the name of Smt. Durgawati Devi wife of Sarju resident of Village Pyarepur, Tehsil Nizamabad, District Azamgarh." 4. Counsel for the petitioners submitted that agricultural lease was executed in illegal manner in the year 1994. He further submitted that cancellation proceeding was initiated in collusive manner and the illegal lease granted in favour of the lease holders have been affirmed. Counsel for the petitioners submitted that agricultural lease was executed in illegal manner in the year 1994. He further submitted that cancellation proceeding was initiated in collusive manner and the illegal lease granted in favour of the lease holders have been affirmed. He submitted that the instant public interest litigation has been filed challenging the orders passed in the proceeding under Section 198 (4) of the U.P.Z.A. and L.R. Act. He further submitted that without following the procedure prescribed under the U.P.Z.A. and L.R. Act and the rules framed thereunder at the relevant point of time, the lease deed was executed, as such, the same should be cancelled in the public interest. He further placed the judgment of this Court reported in 2000 (0) Supreme (All) 1084 Mathai Lal Dube Vs. District Magistrate, Sant Kabir Nagar. He further placed the judgment of Hon'ble Apex Court reported in AIR 1982 SC 149 Supreme Court S.P. Gupta Vs. Union of India and AIR 1991 SC 1902 Bangalore Medical Trust Vs. B.S. Muddappa and others in order to demonstrate if the jurisdiction has been exercised in the illegal manner, then the orders as well as the proceeding can be annulled at any point of time. 5. On the other hand, Mr. Rajesh Kumar Tiwari, learned Additional Chief Standing and Mr. Rameshwar Prasad Shukla, learned counsel for respondent no.5/ Gaon Sabha submitted that instant public interest litigation is not maintainable. 6. I have considered the arguments advanced by learned counsel for the parties and perused the records. 7. There is no dispute about the fact that agricultural lease was executed in the year 1994. There is also no dispute about the fact that earlier cancellation proceeding under Section 198 (4) of U.P.Z.A. and L.R. Act was initiated in which the lease granted in the year 1994 were affirmed with certain modification. 8. 7. There is no dispute about the fact that agricultural lease was executed in the year 1994. There is also no dispute about the fact that earlier cancellation proceeding under Section 198 (4) of U.P.Z.A. and L.R. Act was initiated in which the lease granted in the year 1994 were affirmed with certain modification. 8. In order to demonstrate the controversy involved in the matter, the perusal of Section 198 (6) of U.P.Z.A. and L.R. Act/ 128 (1-A) of the U.P. Revenue Code, 2006 will be relevant for perusal:- "Section 198 (6)-Every notice to show cause mentioned in sub-section (5) may be issued— (a) in the case of an allotment of land made before November 10, 1980 (hereinafter referred to as the said date), before the expiry of a period of [seven years] from the said date; and (b) in the case of an allotment of land made on or after the said date, before the expiry of a period of [five years from the date of such allotment or lease or up to November 10, 1987, whichever be later]." "Section 128 (1) (A)-Any application under sub-section (1)may be moved in the case of an allotment of land made before the commencement of this Code, within five years from the date of such commencement and in the case of an allotment of land made on or after the date of such commencement, within five years from the date of such allotment or lease.]" 9. The perusal of the aforementioned provision demonstrate that limitation has been prescribed for cancellation of agricultural lease. 10. In the instant matter, the lease for agriculture purpose was executed in the year 1994 and the cancellation proceeding initiated has been decided vide order dated 19.11.2004, as such, the further consideration of the order passed in lease cancellation proceeding by way of public interest litigation is abuse of process of law. 11. This Court in the case reported in 2018 (140) RD 1 (Rishi Pal & Others Vs. State of U.P. & Others) has considered the scope of Section 198 (6)of the U.P. Revenue Code, 2006 and has held that if the cancellation proceeding is barred by limitation then the limitation question can be considered before the Writ Court even though the same has not been raised before the Collector/ Commissioner/ Board of Revenue. The relevant paragraph nos. State of U.P. & Others) has considered the scope of Section 198 (6)of the U.P. Revenue Code, 2006 and has held that if the cancellation proceeding is barred by limitation then the limitation question can be considered before the Writ Court even though the same has not been raised before the Collector/ Commissioner/ Board of Revenue. The relevant paragraph nos. 7 to 13 of the judgment are as follows:- "7. 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. 8. The pattas were executed in the year 1992. Under Subsection (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. 9. 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 relvant. 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. Section 3 of the Indian Limitation Act would also be relvant. 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" 10. The question of limitation had to be therefore looked into by the Court even if he dendant /opposite party had not raised it. 11. 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. 12. The writ petition is, therefore, allowed. The orders dated 1.6.2011 and 23.3.2012 are quashed. 13. It is made clear that this relief would be confined to the petitioners who had filed the instant writ petition." 12. Considering the entire facts and circumstances as well as the ratio of law laid down by this Court in Rishi Pal (Supra), the instant public interest litigation cannot be entertained against the impugned orders passed in respect to the agricultural lease executed in the year 1994. 13. Considering the entire facts and circumstances as well as the ratio of law laid down by this Court in Rishi Pal (Supra), the instant public interest litigation cannot be entertained against the impugned orders passed in respect to the agricultural lease executed in the year 1994. 13. The case law cited by learned counsel for the petitioners is not applicable in the present facts and circumstances of the case. 14. No interference is required in the matter. 15. The instant public interest litigation is misconceived and accordingly dismissed.