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Allahabad High Court
Girish Dutt Tiwari vs State Of U.P. Thru. Addl. Chief Secy. … on 21 May, 2025
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:30172 Court No. - 7 Case :- WRIT - C No. - 9601 of 2024 Petitioner :- Girish Dutt Tiwari Respondent :- State Of U.P. Thru. Addl. Chief Secy. Revenue Sectt. Lko And 23 Others Counsel for Petitioner :- Madan Gopal Tripathi,Amrendra Nath Tripathi,Santosh Kumar Mishra,Shivam Kumar Mishra Counsel for Respondent :- C.S.C.,Pankaj Gupta,Rajeiu Kumar Tripathi,S M Singh Royekwar WITH Case :- WRIT - C No. - 3079 of 2024 Petitioner :- Maya Ram And Others Respondent :- Commissioner , Devipatan Mandal, Gonda And Others Counsel for Petitioner :- Rajeiu Kumar Tripathi,Girdhari Lal Shukla Counsel for Respondent :- C.S.C.,Adarsh Kumar Tripathi,Amrendra Nath Tripathi,Anil Kumar Shukla,Madan Gopal Tripathi,Nitin Srivastava,Pankaj Gupta,Pankaj Kumar Shukla,Sandeep Kumar Ojha Hon'ble Saurabh Lavania,J.
1. With the consent of the parties, both the petitions are being decided by means of this common judgment.
2. Supplementary affidavit filed in WRIT – C No. 3079 of 2024 in Court in today is taken on record.
3. Shri Amrendra Nath Tripathi, Advocate, appeared for the petitioner in WRIT – C No. 9601 of 2024 and for contesting respondent no.7/Girish Kumar in WRIT – C No. 3079 of 2024, Shri Hemant Kumar Pandey, learned Standing Counsel appeared for the State in both the petitions, Shri Rajeiu Kumar Tripathi, Advocate, appeared for the petitioners in WRIT – C No. 3079 of 2024 and for private opposite parties in WRIT – C No. 9601 of 2024. Heard these advocates and perused the record.
4. WRIT – C No. 9601 of 2024 has been preferred seeking following main relief:-
“I. Issue a Writ, Order or Direction in the nature of Certiorari to quash the order dated 14/11/2023 passed in Appeal under section 67 (5) of U.P revenue Code, 2006 bearing no. 2512/2023 computerized no. D202308300002512, Girish Dutt Tiwari Vs Vijay Kumar and others and the order dated 20/10/2023 passed by Assistant Collector/Tahsildar Sadar, Gonda, District-Gonda, whereby the authorities disowned their duty to protect the public utility land bearing Gata no. 509 of Village- Mahadev Pargana, Tehsil and District-Gonda by taking such types of excuses which are frivolous, unreasoned and unreliable in the interest of Justice.
II. Issue a writ order or direction in the nature of mandamus thereby commanding the opposite parties no. 1,2 and 3 to consider for securing the public utility land i.e., Gata no. 509 (Banjar Land) in it’s original position within time framed as this hon’ble court pleases to frame in the interest of justice.”
5. WRIT – C No. 3079 of 2024 has been preferred seeking following main relief:-
“i) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 12.03.2024, passed by Commissioner, Devipatan Mandal, Gonda i.e. opposite party number 1 in Case No. 379/2024, Computerized No. C202408000000379 (Maya Ram Vs. Savitri Devi and others) under Section 210 of the U.P. Revenue Code, 2006 and order dated 01.12.2023, passed by Chief Revenue Officer, Gonda i.e. opposite party number 2 in Case No.03277/2018, Computerized No. D201808300003277 (Mohan Lal Vs. State and others) under Section 66 of the U.P. Revenue Code, 2006, contained as Annexure No. 2 & 3 to the writ petition;
ii) Issue a writ, order or direction in the nature of further certiorari so as to quash the entire proceedings of Case No. 03277/2018, Computerized No. D201808300003277 (Mohan Lal Vs. State and others) under Section 66 of the U.P. Revenue Code, 2006 pending in the Court of Chief Revenue Officer i.e. opposite party number 2;”
6. The brief facts which are relevant for disposal of the petitions are as under :-
(i) The petitioner namely Girish Dutt Tiwari before this Court in WRIT – C No. 9601 of 2024 had filed Writ-C No.4010 of 2023 wherein the following order was passed on 26.05.2023 :-
“Heard learned counsel for petitioner, learned Standing Counsel for the State and Sri Pankaj Gupta, learned counsel for the Gaon Sabha.
Present petition is filed by petitioner claiming that Gata No.509 area 0.1309 Hect., situated in Village Mahadev, Pargana and Tehsil Sadar, District Gonda is a land of Gaon Sabha which is being encroached by private respondents. He submits that certain inquiry has taken place and a report is also submitted which he is challenging in the present writ petition.
After hearing learned counsel for petitioner and learned counsel for opposite parties and looking into the facts and circumstances of the case, petitioner is permitted to make a fresh and detailed application under Section 67 of U.P. Revenue Code, 2006, raising all his grievance to the Sub Divisional Magistrate/Assistant Collector, Tehsil Sadar, District-Gonda within two weeks from today annexing therewith all the documents in support of his case as well as a copy of the present writ petition along with all its annexures and a certified copy of this order.
In case such an application is made, the Sub Divisional Magistrate/Assistant Collector, Tehsil Sadar, District-Gonda, after hearing all the parties concerned, shall decide the same by a reasoned and speaking order within a period of 90 days from the date of receipt of the application along with a certified copy of this order.
With the aforesaid directions, present writ petition is disposed of.
(order on I.A. No.2 of 2023-Amendment/Impleadment Application)
Sri Girdhari Lal Shukla, learned counsel states that he has filed application for impleadment of Sri Harish Dutt Tiwari and Smt. Pushpa Devi, as respondent no.6 and 7 to the writ petition.
It is already provided above that Assistant Collector, Gonda shall decide the application under Section 67 of U.P. Revenue Code, 2006 after hearing all the parties concerned. In case any right of his clients is involved, they shall also be given opportunity of hearing.
The impleadment application is rejected.”
(ii) In terms of the above quoted order dated 26.05.2023, the petitioner preferred an application before Tehsildar, Sadar, District – Gonda (in short “Tehsildar”). This application was decided vide order dated 20.10.2023 by Tehsildar in exercise of power vested under Section 67 of the U.P. Revenue Code, 2006 (in short “Revenue Code”).
(iii) It would be apt to indicate that the dispute between the parties infact is related to Gata No.509/0.0309 Hectare situated at Village Mahadeva, Pargana, Tehsil and District Gonda.
(iv) Over the land in issue, housing pattas were provided to some villagers.
(v) For the purposes of cancellation of pattas, one Mohan Lal instituted proceedings under Section 66 of the Code of 2006 way back on 24.09.2018. This case was filed along with an application for condonation of delay and this application for condonation of delay was decided vide order dated 01.12.2023 passed by Chief Revenue Officer, Gonda (in short “C.R.O.”)which is the subject matter of Writ-C No.3079 of 2020.
(vi) The order dated 20.10.2023 passed by Tehsildar was assailed by means of the appeal preferred by the petitioner/Girish Dutt Tiwari, registered as Appeal No.2512/2023 (Computerized Case No.D202308300002512) (Girish Dutt Tiwari Vs. Vijay Kumar and others). This appeal was rejected vide order dated 14.11.2023, almost on the same reasoning as given in the order dated 20.10.2023. The relevant portion of the order dated 14.11.2023 is extracted herein above :-
“पत्रावली प्रस्तुत हई। उभय पक्षों के विद्वान अधिवक्ता उपस्थित हैं, जिन्हें वाद के ग्राहयता विन्दु पर सुना गया तथा मेरे द्वारा पत्रावली पर उपलब्ध समस्त सुसंगत अभिलेखों का सम्यक रूप से परिशीलन किया गया। तहसीलदार गोण्डा (सदर) द्वारा गिरीशदत्त तिवारी द्वारा मा० उच्च न्यायालय के आदेश के अनुक्रम में प्रस्तुत प्रार्थना पत्र पर उभय पक्षों को सुनने व उपलब्ध जॉच आख्या, आपत्ति एवं अभिलेखों के परिशीलनोपरान्त यह पाया कि वादग्रस्त भूमि पर आवास स्थल आवंटन दिनांकित 24.02.1992 व वृक्षारोपण हेतु स्थल आवंटन दिनांकित 28.03.1992 के निरस्तीकरण का वाद न्यायालय में विचाराधीन है। किसी भी न्यायालय द्वारा उक्त आवंटन को अब तक निरस्त नहीं किया गया है और जब तक आवंटन निरस्त होने के उपरान्त भूखण्ड गांसभा ने निहित नहीं की जाती है तब तक उ० प्र० राजस्व संहिता की धारा 67 के अन्तर्गत किसी भी व्यक्ति के विरुद्ध कार्यवाही किया जाना विधिअनूकूल नहीं है। इस प्रकार जिस आधार पर अपील दिनांक 31.10.2023 प्रस्तुत की गयी है उन सभी विन्दुओं पर अवर न्यायालय के आदेश दिनांकित 20.10.2023 मे समावेश है। अवर न्यायालय द्वारा विवेचनोपरान्त – विधिसंगत विस्तृत आदेश पारित किया गया है, जिसमे किसी हस्ताक्षेप की आवश्यकता प्रतीत नहीं होती है।
आदेश
उपर्युक्त विवेचना के आलोक में श्री गिरीश दत्त तिवारी उपरोक्त द्वारा प्रस्तुत अपील 31.10.2023 विधि विरुद्ध व आधारहीन होने के कारण ग्राहयता स्तर पर निरस्त की जाती है। बाद आवश्यक कार्यवाही पत्रावली अभिलेखागार मे संग्रहीत की जाय।”
vii) The issue involved in WRIT – C No. 3079 of 2024 is to the effect that as to whether the application in terms of Section 5 of Limitation Act, 1963 (in short “Act of 1963”) seeking condonation of delay in instituting a case under Section 66 of U.P. Revenue Code, 2006 (in short “Code of 2006”) would be maintainable or not.
viii) Aforesaid is for the reason that by the impugned order dated 01.12.2023, in WRIT – C No. 3079 of 2024, passed in Case No. 03277/2018 (Mohan Lal Vs. State and Others), the respondent no.2/C.R.O. decided/allowed the application seeking condonation of delay in instituting the case under Section 66 of the Code of 2006 and vide impugned order dated 12.03.2024, in WRIT – C No. 3079 of 2024, passed in Case No. 379/2024, the respondent no. 1/Commissioner, Devipatan Mandal, Gonda, affirmed the order dated 01.12.2023.
7. In the aforesaid background the petitions under consideration have been filed.
8. It is not in dispute that the application in terms of Section 5 of the Act of 1963 seeking condonation of delay in instituting the case under Section 66 of Code of 2006 would not be maintainable.
9. At this stage, it would be apt to refer the judgment passed in the case of Ram Pal Vs. State of U.P., reported in 2014 SCC OnLine All 6487, wherein an application in terms of Section 5 of Act of 1963 seeking condonation of delay in instituting the case under Section 198(4) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short “Act of 1950”) was allowed and this Court interferred in the matter and remanded the matter back to the concerned Authority to frame an issue relating to limitation and decide it as preliminary issue after taking evidence of the parties. The relevant paras of the judgment passed in the case of Ram Pal (Supra) are as under :-
“7. I have considered the arguments of the counsel for the parties and examined the record. Initially in exercise of powers under Section 344 of the Act, U.P. Zamindari Abolition and Land Reforms Rules, 1952 have been framed. Rule 338 read with Appendix III provides limitation for filing various cases/suits under the Act. The cases relating to cancellation of patta were provided under Section 198(2) of the Act and vide Entry 24 of Appendix III, six month limitation from the date of announcement of allotment by Land Management Committee was provided for the cases, filed by the aggrieved persons and three years limitation from the date when the Collector first knew about the irregular allotment was provided for suo moto action by the Collector. Section 198 of the Act was amended by U.P. Act No. 20 of 1982 and under Section 198(6)(a) of the Act, two years limitation for issue of notice under Section 198(5) to the allottee, which is a condition precedent for cancellation of patta, has been provided for patta granted prior to 10.11.1980 and under Section 198(6)(b) of the Act, five years limitation for cancellation of patta granted after to 10.11.1980 has been provided. Thereafter the Act was further amended by U.P. Act No. 24 of 1986 and under Section 198(6)(a) of the Act, seven years limitation for issue of notice under Section 198(5) to the allottee, which is a condition precedent for cancellation of patta, has been provided for patta granted prior to 10.11.1980 and under Section 198(6)(b) of the Act, five years limitation for cancellation of patta granted after to 10.11.1987 has been provided.
8. By the amendment in the Act, by U.P. Act No. 20 of 1982 and U.P. Act No. 24 of 1986, the Act itself provides limitation for initiation of cases for cancellation of patta under Section 198(4) of the Act, as such the limitation as provided in Appendix III (vide Entry 24) has become redundant. In case of contradiction between the Act and the Rules, the Act will prevail. Section 198(6) of the Act now uses the words “every notice to show cause”, thus different limitation as previously provided for suo moto action under Entry 24 of Appendix III has also came to an end and by using words “every notice to show cause” under Section 198(6) of the Act, one limitation for the action on the case filed by aggrieved persons as well as suo moto cancellation of patta has been provided. Full Bench of Board of Revenue U.P. in Virendra Singh’s case (Supra) has not taken notice of legislative change and does not hold the good law.
9. Now the question arises for consideration as to whether delay can be condoned in exercise of powers under Section 5 of Limitation Act, 1963. Section 341 of the Act provides that unless otherwise expressly provides by or under this Act, the provisions of the Limitation Act, 1963 including Section 5 thereof shall apply to the proceedings under the Act. Section 5 of the Limitation Act, 1963 is quoted below:-
5. Extension of prescribed period in certain cases.– Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.–The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
10. Limitation for suits of different natures, appeals and applications have been given in Schedule. First Division of the schedule from Article 1 to 113 prescribes limitation for suit, Second Division of the schedule from Article 114 to 117 prescribes limitation for appeal and Third Division of the schedule from Article 118 to 137 prescribes limitation for applications. Under Section 2(l) of Limitation Act, 1963 it has been clarified that suit does not include an appeal or an application. Under Section 5 of Limitation Act, 1963 delay can be condoned only in the appeals and applications falling under Second Division and Third Division of the schedule. The case for cancellation of patta as given under Section 198(4) of the Act cannot be treated as an application as provided under Third Division of the schedule from Article 118 to 137. Section 198(4) provides the provision of the category of the suit. Section 5 of Limitation Act, 1963 has no application and delay cannot be condoned in exercise of powers under Section 5 of Limitation Act, 1963.
11. Similar controversy came for consideration before Supreme Court in Nasiruddin v. Sita Ram Agarwal, AIR 2003 SC 1543, in which the provisions of Section 13(4) of Rajsthan Premises (Control of Rent and Eviction) Act, 1950, which provides 15 days limitation for deposit of rent as determined by the Court. This 15 days limitation can be extended by the Court maximum up to 90 days. Supreme Court held that on perusal of the said section it is evident that the question of application of Section 5 would arise where any appeal or any application may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not making the appeal or application within such period. Section 13(4) provides that in a suit for eviction on the ground set forth in clause (a) of sub-section (1), the tenant shall on the first date of hearing or on or before such date, the court may on the application fixed in this behalf or within such time the tenant shall deposit in court or pay to the landlord in court as determined under sub-section (3) from the date of such determination or within such further time not exceeding three months as may be extended by the court. Thus, sub-section (4) itself provides for limitation of a specific period within which the deposit has to be made, which cannot be exceeding three months as extended by the court. The matter may be examined from another angle. The deposit by the tenant within 15 days is not an application within the meaning of Section 5 of the Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of Section 5 cannot be extended where the default takes place in complying with an order under sub-section (4) of Section 13 of the Act. The provisions of Section 5 of the Limitation Act must be construed having regard to Section 3 thereof. For filing an application after the expiry of the period prescribed under the Limitation Act or any other special statute, a cause of action must arise. Compliance with an order passed by a court of law in terms of a statutory provision does not give rise to a cause of action. On failure to comply with an order passed by a court of law, instant consequences are provided for under the statute. The court can condone the default only when the statute confers such a power on the court and not otherwise. In that view of the matter we have no other option but to hold that Section 5 of the Limitation Act, 1963 has no application in the instant case.
Thus, Section 5 of the Limitation Act, 1963 has no application as the application for cancellation of patta under Section 198(4), is the original proceedings of the nature of suit and not an application falling in the categories given from Article 118 to 137.
12. As Limitation Act, 1963 has been applied to the proceedings under the Act, as such in view of Section 2(j) of the Limitation Act, prescribed period of limitation can be computed according to the provisions as provided from Section 4 to 24 of Limitation Act, 1963. Section 17 of Limitation Act, 1963 provides as follows:-
17. Effect of fraud or mistake.–(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,–
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him;
the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it, or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:
Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which–
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.
(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:
Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.
13. In the cases where fraud has been committed by the defendant or his agent the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it, or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. In this case, it was alleged by the respondents that Land Management Committee granted patta of the land in dispute to the respondents on 12.07.1993, which was duly approved by Sub-Divisional Officer. They were given possession over the land in dispute and their names were also mutated in the revenue records. Although the land in dispute was already allotted to the respondents and were in their possession, but without any notice/agenda and holding any meeting for allotment of the land in dispute, it was again allotted to the petitioners by resolution dated 30.05.1995 as Pradhan, Sadhuram was relation of some of allottees. Without disclosing the correct facts, approval of Sub-Divisional Officer was obtained secretly on 19.07.1995. It is only on 29.09.2005, they came to know about the allotment of the land to the petitioners and the application under Section 198(4) of the Act was filed on 27.10.2005. From the date of discovery of fact relating to fraudulent allotment, the application was within time and the Collector has jurisdiction to try it on merit.
14. In this case, Additional Collector, by order dated 29.08.2006 condoned the delay in filing the application under Section 198(4) of the Act, in exercise of powers under Section 5 of the Limitation Act, 1963. As held above, provisions of Section 5 of the Limitation Act, 1963 are not applicable to the proceedings under Section 198(4) of the Act, as this proceeding is of the nature of suit. In such circumstances, Additional Collector ought to have framed an issue regarding limitation and after taking evidence of both the parties, he may decide the issue relating to limitation as a preliminary issue. In case fraud and misrepresentation is established and within period of five years the fraud could not came to the knowledge of the respondents, then he may give benefit of limitation under Section 17 of the Limitation Act, 1963.
15. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The orders of Additional Collector dated 29.08.2006, and Board of Revenue U.P. dated 18.12.2007 and 10.07.2013 are set aside. The matter is remanded to Additional Collector to frame an issue relating to limitation and decide it as preliminary issue after taking evidence of the parties and if this issue is decided in favour of the respondents, then proceed to decide the case on merit in accordance with law.”
10. In view of aforesaid, the order(s) dated 12.03.2024 and 01.12.2023 assailed in WRIT – C No. 3079 of 2024 are set aside. The matter is remanded back to the respondent no. 2/C.R.O. to decide the issue of to frame an issue relating to limitation and decide it as preliminary issue after taking evidence of the parties within a period of four months from the date of receipt of certified copy of this order.
11. In so far as, second prayer sought in WRIT – C No. 3079 of 2024 is concerned, on being confronted after taking note of judgment of the Hon’ble Apex Court in the case of Jacky vs. Tiny, reported in (2014) 6 SCC 508, followed recently in the case of K. Valarmathi & Ors. Vs. Kumaresan, reported in 2025 INSC 606, learned counsel for the petitioner Shri Rajeiu Kumar Tripathi submitted that he may be permitted to withdraw the said prayer.
12. Accordingly, the petition i.e. WRIT – C No. 3079 of 2024 is dismissed in part so far as the second prayer is concerned and the petition is allowed so far as it pertains to prayer no. 1. No order as to costs.
13. The issue basically in both the petitions revolves around the Rule 115 Q of the U.P. Zamindari Abolition and Land Reforms. Rules, 1952 (in short “Rules of 1952”) framed under the U.P. Zamindari Abolition and Land Reforms Act, 1950 and this issue was raised by Mohan Lal in the proceeding instituted under Section 66 of the Code of 2006 and this case would be decided, as per law, and authority concerned would take appropriate steps based upon the decision in the said case.
14. Therefore, this Court is of the view that two proceedings before different authorities on the same issue should not be permitted to continue.
15. Thus, reason given in order(s) dated 20.10.2023 and 14.11.2023, for rejecting the case under Section 67 of Code of 2006, assailed in WRIT – C No. 9601 of 2024, which is to the effect that unless land in issue is vested in Gaon Sabha after cancellation of patta(s) the proceedings under Section 67 of Code of 2006 would be unlawful, to the view of this Court is justified.
16. Accordingly, the WRIT – C No. 9601 of 2024 is dismissed.
Order Date :- 21st May, 2025
Mohit Singh/ML/-
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