Smt. Shyamo Devi vs The State Of Uttar Pradesh Thr. ...

2024 INSC 430 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5539 OF 2012

SMT. SHYAMO DEVI AND OTHERS …APPELLANT(S)

VERSUS

STATE OF U.P. THROUGH SECRETARY AND OTHERS …RESPONDENT(S)

JUDGEMENT

Aravind Kumar, J.

1. This appeal is directed against the judgment dated 19.01.2010

passed in Writ Petition No.1995 of 2010 by the High Court of judicature at

Allahabad whereunder the writ petition filed by the appellants herein

Signature Not Verified (hereinafter referred to as ‘writ petitioners or petitioners’) challenging the Digitally signed by Indu Marwah Date: 2024.05.16 15:44:34 IST Reason: order dated 23.09.2009 passed in Revision No.68 of 2008-09 came to be

dismissed and said order came to be upheld for the reason that the revision

1 petition is not maintainable and consequently the order dated 07.02.2008

passed by the Additional Collector holding that proceedings for

cancellation of the patta could be started at any time came to be upheld.

2. By our order dated 13.03.2024, we had made it clear that since

none had appeared on behalf of the appellants (writ petitioners) no further

adjournment would be granted and in the interest of justice one last

opportunity came to be extended to the writ petitioners. However, even

today when the matter is called in the second round none has appeared on

behalf of the appellants. Hence, we have proceeded to examine the case on

merits by considering the pleas advanced in the appeal, grounds urged

therein and the arguments advanced on behalf of the respondents’ counsel.

3. Short facts leading to the filing of this appeal are as under:

4. In the year 1969-70, the khasra plot No.185 in Rampur Kedhar

Village, UP was designated as a Panchayat Ghar but later it was declared

unsuitable in 1993. On the request of the village Pradhan a portion of the

said plot was re-assigned for residential use by the Assistant Collector and

subsequently different plots of land in said survey number came to be

allotted to different individuals including the writ petitioners under Section

122-C(i)(d) of Uttar Pradesh Zamindari Abolition and Land Reforms Act

(hereafter referred to as ‘UPZALR Act’ for short).

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5. After 13 years, the Secretary/Lekhpal of Bhumi Prabandhank

Samiti, Rampur forwarded a report to the jurisdictional Tehsildar opining

thereunder that plot No.185 had been originally designated as Panchayat

Ghar and classified under Section 132 of UPZALR Act and accordingly

recorded in the revenue records, which had been unlawfully allotted for

residential use. Hence, he proposed for cancellation of the allotments made

and to take possession of the land from all the allottees including writ

petitioners. The Tehsildar in turn forwarded a proposal to the District

Magistrate for cancellation of the allotment vide communication dated

18.06.2007. This, resulted in show cause notices dated 05.07.2007 being

issued to the writ petitioners and same was duly replied by them by filing

objections on 04.10.2007. An application came to be filed by the

petitioners to decide the issue of the limitation as preliminary issue, since

the proceedings had been initiated after 13 years from the date of allotment

contending inter alia that within a period of 3 years the proceedings ought

to have been initiated. The Additional Collector by order dated 07.02.2008

was of the view that action initiated being suo moto, no limitation has been

provided under Section 122-C(6) of UPZALR Act; that during the

consolidation proceedings the land had been specified “Panchayat Ghar”

and it was covered under Section 132(6) of the UPZALR Act; the

allotment of land being irregular and no time limit having been fixed for

3 cancellation of allotment made under Section 122-C(6). Hence, he arrived

at a conclusion that there is no limitation fixed under the Act and

proceeded to reject the application filed.

6. Being aggrieved by the said order the revision petition came to be

filed before the Additional Commissioner which came to be entertained on

merits and dismissed.

7. Being aggrieved by the aforesaid two (2) orders, the writ

petitioners challenged the same in Writ Petition No.1995 of 2010 which

came to be dismissed on two grounds namely the revision petition filed

was not maintainable in the teeth of Section 122-C(7); and, on the ground

that impugned order dated 07.02.2008 passed by the Additional Collector

over-ruling the objections of the writ petitioners with regard to limitation is

correct and it was meritless. Hence, this appeal.

8. As already noticed by us herein above, none have appeared on

behalf of the writ petitioners. Shri Tanmaya Agarwal, learned counsel

appearing for the respondent-state has vehemently contended that fraud

vitiates all acts and in the instant case the revenue was empowered under

the UPZALR Act to cancel the illegal and fraudulent allotment of land

made in favour of the writ petitioners and as such suit had been instituted

for cancellation of allotment for which no limitation has been specified

4 under Section 122-C(6) of UPZALR Act and particularly when the land in

question had been reserved as Panchayat Ghar it would be governed under

Section 132 of the UPZALR Act. He would also submit that even

otherwise where a bhumidhar uses the land for a purpose not connected

with agriculture, horticulture or animal husbandry same would be in

contravention of Section 143 and admittedly no permission had been

procured for the usage of the land for residential purposes as required

under Section 143. Hence, he would contend that the authorities were

within their jurisdiction to initiate the proceedings for cancelling the

allotment and the revenue authorities as well as the High Court had rightly

refused to interfere with the impugned order dated 07.02.2008 and rejected

the writ petition whereunder they had sought for the suit being dismissed

as barred by limitation. Hence, he prays for rejection of this appeal.

9. Having heard the learned Counsel representing the State, it would

be apposite to note the order dated 17.07.2012 passed by this Court. It

reads:

“Leave granted.

In the meanwhile, the parties are directed to maintain status quo in respect of the disputed land, as it is obtaining today. This would necessarily mean that neither party shall change the present character of the property or alienate the same to any other person in any manner whatsoever.”

(Emphasis Supplied by us)

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10. The writ petitioners who are rustic and illiterate villagers had

submitted applications for allotment of land for purposes of house

construction in the village Dhodhar, Tehsil Thakurdwara, District

Moradabad. Pursuant to the same the writ petitioner’s husband/father

amongst others were allotted 150 sq. yards land each in Gata No. 185 Mi.

The said allotment came to be approved by the Sub-District Magistrate on

27.06.1994 and allotment was made in pursuance to the proposal dated

15.05.1994 forwarded by The Land Management Committee, Rampur,

Dhodhar. Hence, the writ petitioners and other allottees have put up

construction by putting up residential accommodation and have been

residing therein with their family members. However, after a period of 13

years namely on 13.06.2007 the Lekhpal submitted a report for

cancellation of such allotment on the ground that the land allotted to the

writ petitioners and other allottees were classified as Panchayat Ghar and

as per Section 132 of UPZALR Act the same could not have been allotted

to the writ petitioners. Based on the said report, Tehsildar, on 18.06.2007

forwarded a report to the Sub-District Magistrate, proposing thereunder to

initiate proceedings and recommended for cancellation of the allotment.

Hence, the proceedings for cancellation of the allotment came to be

initiated by issuance of show cause notice dated 05.07.2007 to all the

allottees.

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11. Thus, it emerges from the afore-stated facts that the authorities

initiated the proceedings for cancellation of the allotment initially based on

the report dated 13.06.2007 of the Lekhpal which was undisputedly after

13 years from the date of allotment. It is no doubt true that there is no

limitation fixed for initiation of the proceedings under the UPZALR Act as

contended by the learned Counsel for the Respondents. This Court in

Additional Commssioner, Revenue and Others v. Akhalaq Hussain and

Another, (2020) 4 SCC 507 vide paragraph 28 has held that sub-section

(6) of Section 122C empowers the collector to enquire with regard to the

manner of allotment being irregular and may proceed to cancel the

allotment if he satisfies that such allotment is irregular. Section 122C (6)

reads as under:

“122C (6) The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land under this section inquire in the manner prescribed into such allotment, and if he is satisfied that the allotment is irregular, he may cancel the allotment, and thereupon the right, title and interest of the allottee and of every other person claiming through him in the land allotted shall cease.”

12. However, the question which requires to be addressed is whether

such initiation of the proceedings can be at any length of time or at any

point of time where no limitation is prescribed. This Court in State of

7 Punjab Vs. Bhatinda Milk Producer Union Limited reported in (2007)

11 SCC 363 has held:

“18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors.”

13. This Court had an occasion to consider similar issue in the matter

of Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh

Reddy, (2003) 7 SCC 667 namely the exercise of suo moto power under

sub-section (4) of Section 50-B of Andhra Pradesh (Telangana Area)

Tenancy and Agriculture Lands Act, 1950 (for short ‘AP Act’) i.e., can it be

at any time or such power is to be exercised within a reasonable time and if

so, within what time? The facts obtained in the said case was that the

owners of the subtle land executed various sale deeds in favour of different

persons on plain paper and possession of the lands was also delivered to

the purchasers. The vendees applied under Section 50-B of the AP Act for

validation of sales and the concerned Tehsildar issued validation

certificates on various dates. The said orders of the Tehsildar came to be

challenged before the Joint Collector of the District by the Special

Tehsildar and authorised officer (land reforms) which appeals came to be

dismissed in 1988. It is thereafter the Joint Collector issued show cause

notices purporting to exercise the suo moto power under sub-section (4) of

8 Section 50-B of the Act to both the vendors and the vendees as to why the

validation certificates issued in the year 1974 or earlier should not be

cancelled after considering the objections filed in response to the show

cause notices, the Joint Collector set aside the validation certificates in

1989. The learned Single Judge before whom challenge was laid accepted

the plea of the writ petitioners by arriving at a conclusion that suo moto

power of revision ought to have been exercised within a reasonable period,

though Section 50-B (4) of the Act empowers the authority to exercise

such suo moto power at any time. The impleading applicants who had filed

the complaint, assailed the order of learned Single Judge before the

Division Bench without success. In so far as the validation certificates

which were found to be fraught with fraud came to be set aside by the

Division Bench and also taking into account that the parties did not

produce the documents.

14. Sub-section (4) of Section 50-B of the AP Act can be juxtaposition

with sub-section (6) of Section 122-C of the UPZALR Act for immediate

reference and it reads:

Section 122-C (6) Section 50-B (4) of UPZALR Act of AP Act

122-C (6) The Collector may of his own 50-B (4) The Collector may, suo-motu at motion and shall on the application of any time, call for and examine the record any person aggrieved by an allotment of relating to any certificate issued or land under this section inquire in the proceedings taken by the Tahsildar under

9 manner prescribed into such allotment, this section for the purpose of satisfying and if he is satisfied that the allotment is himself as to the legality or propriety of irregular, he may cancel the allotment, such certificate or as to the regularity of and thereupon the right, title and interest such proceedings and pass such order in of the allottee and of every other person relation thereto as he may think fit:

claiming through him in the land allotted Provided that no order adversely affecting shall cease. any person shall be passed under this sub-

section unless such person has had an opportunity of making his representation thereto.

15. In Ibrahimpatnam’s case (supra) wherein sub-section (4) of

Section 50-B was pressed into service discloses that the expression ‘the

collector may, suo moto at any time; is occurring while such expression is

conspicuously absent in sub-section (6) of Section 122-(C) of UPZALR

Act. In the aforesaid case, it came to be held by the Apex Court that suo

moto power should be exercised within a reasonable period even in case of

fraud and within a reasonable time from the date of discovery of fraud and

it depends on facts and circumstances of each case. It came to be further

held:

“12. The learned Single Judge has referred to and relied on various decisions including the decisions of this Court as to how the use of the words “at any time” in sub-section (4) of Section 50-B of the Act should be understood. In the impugned order the Division Bench of the High Court approves and affirms the decision of the learned Single Judge. Where a statute provides any suo motu power of revision without prescribing any period of limitation, the power must be exercised within a reasonable time and what

10 is “reasonable time” has to be determined on the facts of each case.

13. In the light of what is stated above, we are of the view that the Division Bench of the High Court was right in affirming the view of the learned Single Judge of the High Court that the suo motu power under sub-section (4) of Section 50-B of the Act is to be exercised within a reasonable time.

19. It is also necessary to note that the suo motu power was sought to be exercised by the Joint Collector after 13-15 years. Section 50-B was amended in the year 1979 by adding sub-section (4), but no action was taken to invalidate the certificates in exercise of the suo motu power till 1989.

There is no convincing explanation as to why the authorities waited for such a long time. It appears that sub-section (4) was added so as to take action where alienations or transfers were made to defeat the provisions of the Land Ceiling Act. The Land Ceiling Act having come into force on 1-1-1975, the authorities should have made inquiries and efforts so as to exercise the suo motu power within reasonable time. The action of the Joint Collector in exercising suo motu power after several years and not within reasonable period and passing orders cancelling validation certificates given by the Tahsildar, as rightly held by the High Court, could not be sustained.”

In the teeth of the expression ‘any time’ not being found in sub-section (6)

of Section 122-C, it would not detain us for too long to set aside the

impugned orders.

16. However, in order to satisfy ourselves as to whether the issue of

fraud would arise in the instant case? And if so, whether such foundational

facts had been laid in the proceedings initiated? Or such fraud, if any, has

been committed by the writ petitioners or attributed to them under the

show cause notices has also been examined. The foundational facts

11 narrated herein above, at the cost of repetition requires to be noticed

namely the report or the communication of the Lekhpal dated 13.06.2007

forwarded to the Tehsildar. Perusal of the same does not even suggest or

indicate of such fraud having occurred or alleged against writ petitioners.

However, in the report dated 18.06.2007 submitted by the Tehsildar to the

District Magistrate, it has been stated therein that subject land had been

preserved for Panchayat Ghar and it is based on the information furnished

by the peshkar working in the office Sub-District Magistrate who is said to

have intimated that the file does not bear the signature of the then Sub-

District Magistrate and the Tehsildar is also said to have found certain

irregularities. In other words, on the basis of such presumed irregularities

he has jumped to the conclusion that allotment was irregular, against law

and approval of allotment was on the basis of forged signature of Sub-

District Magistrate. However, the basis of such conclusion namely

signature of the Sub-District Magistrate having been forged is not specified

or in other words report is silent. It is also interesting to note that no

allegation of whatsoever nature has been attributed to the allottees of they

having forged the signature/s. In this background, we are of the considered

view that the principles enunciated by this Court in Ibrahimpatnam’s case

(supra) would be squarely applicable to the facts on hand and as such the

order impugned herein cannot be sustained.

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17. We also make it clear that though the power of the Collector is

available to initiate suo moto action for cancellation of allotment under

sub-section (6) of Section 122-C in case of fraud and such foundational

facts would disclose the same, it would suffice to initiate the proceedings

as fraud vitiates all proceedings as held in Akhalaq Hussain’s case

referred to supra. By making this position of law explicitly clear and in the

facts and circumstances of the present case as unfolded which is discussed

in detail herein above disclosing same not being laid in show cause notices,

we are of the considered view that impugned order as well as the orders

impugned before the writ court would not be sustainable.

18. Yet another factor which has swayed in our mind to quash the

impugned order is the fact that pursuant to the allotment made on

27.06.1994 the allottees who are poor rustic villagers have constructed

their houses and the allotment was made based on the approval granted by

the then Sub-District Magistrate and they have been residing in the

residential buildings so constructed by them for the last several years and

to unsettle the same would result in heaping injustice to those poor hapless

persons and particularly when the subject land has been utilized for

allotment to the poor and houseless persons.

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19. For the cumulative reasons afore-stated, appeal is allowed and the

impugned order dated 19.01.2010 as well as the order dated 07.02.2008,

passed by Additional Collector- respondent No.3 herein and the order

dated 23.09.2009 passed by the Additional Commissioner,

(Administration) Moradabad Division are hereby set aside subject to

observation made herein above. No order as to costs.

.........…………….J. (C.T Ravi Kumar)

…….…………….J. (Aravind Kumar) New Delhi, May 16, 2024

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