Allahabad High Court
Hanif And Others vs State Of U.P. And Others on 6 March, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:32958 Court No. - 50 Case :- WRIT - B No. - 389 of 2008 Petitioner :- Hanif And Others Respondent :- State of U.P. and Others Counsel for Petitioner :- D.P. Rai,Om Prakash Rai Counsel for Respondent :- C.S.C.,V.K. Singh Hon'ble Chandra Kumar Rai,J.
1. Heard Mr. Om Prakash Rai, learned counsel for the petitioners, Mr. Sunil Kumar Singh, learned counsel for the gaon sabha and Mr. Om Anand, learned Standing Counsel for the State-respondents.
2. Brief facts of the case are that the petitioners were granted agricultural lease on 16.3.1991/ 14.8.1995. The lease granted in favour of the petitioners was approved in accordance with the provisions of the Act. On the basis of lease executed in favour of the petitioners, the name was accordingly, recorded in the revenue records as bhumidhar with non-transferable rights. The suo-motu proceedings for cancellation of the petitioner’s lease was initiated in the year 2006 and the Additional Collector has cancelled the petitioners’ lease vide order dated 14.8.2006 on the ground that plot in question comes under the public utility plot. The revision filed by the petitioners has been dismissed vide order dated 13.11.2007. Hence this writ petition for the following reliefs:
“a. issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 13.11.2007 passed by respondent no.2 in revision no.145 of 2005-06, Atare vs. Mahipal and others (Annexure No.6 of the writ petition) and order dated 4.8.2006 passed by respondent no.3 (Annexure No.4 of the writ petition).
b. issue a writ, order or direction in the nature of mandamus directing the respondents not to dispossess the petitioners from the land in dispute.
c. issue any other writ, order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
d. Award costs of this writ petition to the petitioners.”
3. This Court entertained the matter on 5.1.2008 in view of the reference made to the full Bench in Writ-B No.40986 of 2001 (Brahm Singh vs. Board of Revenue U.P. Alld. And Others).
4. Parties have exchanged their pleadings in the matter.
5. Learned counsel for the petitioners submitted that the petitioners alongwith their predecessor were granted agricultural lease in accordance with law, as such, suo-motu cancellation proceeding initiated after about 14 years cannot be entertained and allowed by the authorities. He further submitted that on the basis of lease executed in favour of the petitioners alongwith their predecessor, the petitioners came in possession and remained recorded in the revenue record. He further submitted that in view of the ratio of law laid down by this Court in the case reported in 2018 (140) RD 1 (Rishi Pal & Others Vs. State of U.P. & Others) time barred proceeding cannot be entertained and allowed by the authorities.
6. Learned Standing Counsel and learned counsel for the gaon sabha submitted that the full Bench has decided the controversy in Brahm Singh (supra) and has held that the Collector include Additional Collector also as such, the revision filed by the petitioners on the ground that Additional Collector cannot pass the order for cancellation of lease is misconceived. They further submitted that the lease has been cancelled on the ground that the plot in question comes under the public utility plots, as such, there is no illegality in the order cancelling the petitioners’ lease. They further submitted that no interference is required in the matter and writ petition is liable to be dismissed.
7. I have considered the argument advanced by learned counsel for the parties and perused the records.
8. There is no dispute about the fact that the petitioners alongwith their predecessor were granted agricultural lease on 16.3.1991 which was approved on 14.8.1995. There is also no dispute about the fact that suo-motu proceeding was initiated in the year 2006 and the lease of the petitioner has been cancelled as well as revision filed by the petitioners has also been dismissed.
9. In order to appreciate the controversy involved in the matter, perusal of Section 198 (6) of U.P. Zamindari Abolition and Land Reforms Act, 1950 will be relevant for perusal, which is as under:
Section 198 of U.P.Z.A & L.R. Act :-
(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 upto November 10, 1987, whichever be later.”
10. In the instant matter, suo-motu proceeding for cancellation has been initiated after about 14 years and the ground for cancellation is that plots come under the public utility plot. C.H. Form-45 annexed along with the rejoinder affidavit demonstrates that majority of the plots were recorded as banjar in the revenue records, as such, the ground taken in the impugned order for cancellation of lease is misconceived. No revenue entry has been annexed by the State or gaon sabha along with their counter affidavit in order to demonstrate that plots in question were recorded as public utility plot.
11. Perusal of the relevant paragraphs of the judgement rendered by this Court in Rishi Pal (Supra) will be necessary which is as under:-
“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 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.
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.
(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. Perusal of relevant portion of the of this Court reported in (2018 All. C.J. 118) Jitendra Kumar Urf Gopal v/s State of U.P. and Others will be also relevant which is as under:-
“8. 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.
9. What is more, once when a tenure holder who was earlier granted a patta becomes a bhumidhar with transferable rights, then howsoever much the patta which was granted earlier is cancelled it would not affect his right as a bhumidhar and he shall continue to remain a bhumidhar over the land in question.
10. Under such circumstances, the order dated 13.12.2010 passed by respondent no. 3 and the order dated 7.10.2013 passed by respondent no. 2 are hereby quashed.
The writ petition is allowed.”
13. Perusal of the judgement rendered by this Court in the case of Rishipal (Supra) & Jitendra Kumar (Supra) demonstrate that time barred cancellation proceeding cannot be entertained in the facts & circumstances of the case.
14. Considering the entire facts and circumstances as well as the ratio of law laid down by this Court in Rishi Pal (supra) as well as Jitendra Kumar (Supra), the impugned order dated 13.11.2007 passed by respondent no.2 and order dated 4.8.2006 passed by respondent no.3 are liable to be set aside and the same are hereby set aside.
15. The writ petition stands allowed and the authorities are directed to record the name of the petitioners in the revenue records on the basis of lease executed in their favour.
16. No order as to costs.
Order Date :- 6.3.2025
Rameez