Court No. - 44
Case :- WRIT - C No. - 43047 of 2010 Petitioner :- Ram Preet And Others Respondent :- State Of U.P. And Ors.
Counsel for Petitioner :- Kripa Shankar Singh,A.P. Tiwari,Gaurav Singh,Kripa Shanker Singh(Senior Adv.),Manoj Kumar Bhatt,Ram Kumar Gautam,Sunil Kumar Upadhyay Counsel for Respondent :- C.S.C.,Atul Kumar Pandey
Hon'ble Pankaj Bhatia, J.
Sub. Civil Misc. Impleadment Application No.11 of 2019.
Sri Udai Raj, the applicant has filed the present application seeking impleadment as a necessary party under Order 1 Rule 10 C.P.C. It is stated that the applicant was granted the lease, however, the said lease was later on cancelled, he claims that despite grant of lease the possession of the lease land has not been given. The application does not fall within the scope of Order 1 Rule 10 C.P.C. as the applicant is neither a necessary nor a proper party, the application is accordingly rejected.
Heard Sri Kripa Shankar Singh, Senior Advocate assisted by Sri Gaurav Singh, learned counsel for the petitioners, standing counsel for the State and perused the material on record.
The brief submission of the counsel for the petitioners is that the proceedings for cancellation of lease granted in the year 1993, have been initiated in suo moto exercise of powers after expiry of 17 years which is specifically barred under Section 198 (6) of the U.P.Z.A. & L.R. Act. He further argues that for five lease deeds, one common show cause notice was issued which itself is illegal as five separate lease were granted to 5 different persons, the petitioners herein. He has relied upon the judgment of this Court in the case of Shakuntala Vs. State of U.P. & others {2019 (144) RD 453}.
Learned standing counsel on the other hand, has argued that since the very exception, the petitioners were not entitled to grant of lease as they were ineligible, he further argues that in the cases where the initial lease deed is in violation of the provisions of law, the limitation as prescribed under Section 198 (6) of the U.P.Z.A. & L.R. Act will not apply. He has relied upon the judgment of the Board of Revenue (Full Bench) in the case of Virendra Singh Vs. State of U.P. and the Full Bench judgment of this Court in the case of Nutan Kumar and others Vs. IInd. Additional District Judge and others 1993 (2) AWC 1090.
On the basis of the arguments advanced at the bar and the judgments as well as pleadings, what is to be considered by this Court is whether the initiation of proceedings in exercise of suo moto powers are available after a passage of 17 years and whether one show cause notice can be issued for cancellation of the lease deed to five different lessees and whether no limitation period is prescribed for initiation of proceedings under Section 198 (4) of the U.P.Z.A. & L.R. Act where the lease is alleged to have been obtained by playing fraud.
A perusal of the copy of the show cause notice dated 3.5.2010 (Annexure No.6 to the writ petition) reveals that an information was received by the Collector that five persons (Petitioners) named in the show cause notice had been granted lease on 20.1.1993 although they were not eligible and, thus, a recommendation has been made for cancellation of the lease. In the said show cause notice it was further alleged that in the report it has been alleged that all the lessees belonged to one family and were thus not eligible, further it was alleged that the report states that the lessee Ram Shanker and Ram Briksh are in Government job and a lease has been executed in the name of wife of the said two persons. It was further stated that the lessee Ram Nayan is a Government employee and all the lessees are 'Aheer' by caste, in the said village approximate 70% persons are Scheduled Caste who have been ignored while granting the lease to the petitioners. Based upon the said allegations, the petitioners were called upon to show cause as to why the lease may not be cancelled.
The petitioners filed their reply to the said show cause notice wherein it was also argued that the show cause notice was barred under the provisions of Section 198 (4) of the U.P.Z.A. & L.R. Act and the proceedings were time barred.
The Collector vide its order dated 14.7.2010 passed an order cancelling the lease in favour of the petitioners mainly on the allegations levelled in the show cause notice, holding that the petitioners were not eligible to be granted the lease.
The said order has been challenged by means of the present writ petition. This Court while delivering the judgment in the case of Smt. Shakuntla and 25 others Vs. State of U.P. and 3 others, framed the following four questions for its consideration:-
(a) Whether any show cause notice proposing cancellation of lease on the grounds of material irregularity while granting the lease can be issued beyond the period of limitation prescribed under Section 198(6) of the Act ?
(b) Whether the Revisional Court in exercise of its powers under Section 333 can record findings of fact without taking any evidence on record ?
(c) Whether the leases which are granted without observing the statutory provisions prescribed for grant of lease can be termed as fraudulent ? And
(d) Whether in the case of fraud an action can be taken for cancellation of the lease without any period of limitation ?
This Court after considering the entire law on the subject and relying upon the judgment of the Apex Court in the case of Joint Collector Ranga Reddy District and another Vs. D. Narsing Rao and others, 2015 3 SCC 695, held as under:-
(A) A show cause notice proposing cancellation of the lease on the ground of material irregularity while granting the lease cannot be issued beyond the period of limitation prescribed under Section 198(6) of the Act.
(B) The Revisional Court in exercise of its powers under Section 333 of the Act cannot record findings of fact that too without taking any evidence on record at the revisional stage.
(C) The leases without observing the statutory provisions prescribed for grant of lease cannot be termed as fraudulent and
(D) Even if fraud is alleged the recourse for cancellation should be taken within a reasonable time.
Reverting to the submission of the counsel for the respondents that in the event of an order of allotment based upon fraud, no limitation is applicable, I am not impressed with the said arguments for two reasons firstly that this Court in the judgment of Smt. Shakuntla (supra), relying upon an Apex Court judgment has already held that even in the cases of fraud, action should be taken within a reasonable time and secondly for the reason that even the show cause notice does not allege the allotment of lease by playing a fraud, tenor of the allegations levelled in the show cause notice can at best be termed as "irregularity in grant of lease" as such the judgments cited by the standing counsel are of no avail.
As a consequence of the discussions and findings recorded above, I am of the view that the order dated 14.7.2010 passed by the Collector cancelling the lease granted in favour of the petitioners in the year 1993 is wholly arbitrary, illegal and beyond the limitation prescribed for exercise of powers under Section 198 (6) of the U.P.Z.A. & L.R. Act.
Considering the facts and circumstances of the case, the order dated 14.7.2010 passed by respondent no.2, District Magistrate, Sant Kabir Nagar is quashed.
The writ petition is accordingly allowed. No order as to costs.
Order Date :- 17.12.2019 Hasnain