# Chhidda & Ors v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-17
- **Case number:** Writ C No. 25103 of 2013
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhidda-ors-v-state-of-u-p-ors-44985
- **Pages:** 9

## Headnote

A. U.P.Z.A. & L.R. Act, 1950 - Order
cancelling the lease- beyond limitationproceeding initiated after 16 years -and
without observing principles of natural
justice-impugned order quashed.

Held, In the present case there is specific
argument and document on record to establish
that the consolidation of holdings proceedings
pertaining to the land in question were never
finalized and were dropped mid away and thus,
it cannot be held that any bar as provided
under Section 132 of the Act was triggered
relating to the land in question. I am also not
impressed with the arguments that in the cases
which are covered by Section 132 of the Act,
no limitation would apply. (Para 15)

Writ Petition allowed. (E-9)

List of cases cited: -

## Text

1102 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid provision has been made in the
U.P. Victim Compensation Scheme, 2014.
The provisions of the aforesaid scheme
will not apply in so far as the application
submitted by the respondent no.2 before
the respondent no.1 is concerned.

24. In view of the same, the aforesaid
objections raised by the petitioners is no
force.

25. On the basis of the aforesaid
facts, the Commission has ordered for the
grant of compensation.

26. In view of the facts as narrated
above as well as from perusal of the
judgement of two different Division
Benches of this Court passed in Writ C
No.15570 of 2016, State of U.P. and 2
others Vs. N.H.R.C. and 3 others,
(supra) and Writ C No.7890 of 2014,
State of U.P. and 2 others Vs. National
Human Rights Commission (supra) it is
clear that the respondent no.1 has full
power and authority to direct the
District Magistrate/Superintendent of
Police to make the compensation to the
victim as has been done in the present
case.

27. In the facts and circumstances of
the case, Commission is entitled to do so
where it finds either a violation of human
rights or negligence in the prevention of
violation of human rights.

28. The order dated 7.11.2016 passed
by respondent no.1/U.P. Human Rights
Commission, Lucknow does not want any
interference specially under Article 226 of
the Constitution of India.

29. The writ petition is devoid of
merits and accordingly dismissed. No
order as to cost.
----------
(2020)1ILR 1102

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2019

BEFORE
THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 25103 of 2013

Chhidda & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri R.P.S. Chauhan

Counsel for the Respondents:
C.S.C.

A. U.P.Z.A. & L.R. Act, 1950 - Order
cancelling the lease- beyond limitationproceeding initiated after 16 years -and
without observing principles of natural
justice-impugned order quashed.

Held, In the present case there is specific
argument and document on record to establish
that the consolidation of holdings proceedings
pertaining to the land in question were never
finalized and were dropped mid away and thus,
it cannot be held that any bar as provided
under Section 132 of the Act was triggered
relating to the land in question. I am also not
impressed with the arguments that in the cases
which are covered by Section 132 of the Act,
no limitation would apply. (Para 15)

Writ Petition allowed. (E-9)

List of cases cited: -

1. Joint Collector Ranga Reddy District and
another Vs. D. Narsing Rao and others, 2015 3
SCC 695
1 All. State of U.P. & Ors. Vs. U.P. Human Rights Commission, Lucknow & Anr.
1103
2. Smt. Shakuntla and others Vs. State of U.P.
& others, Writ C No.33761 of 2014

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard learned counsel for the
petitioners, learned standing counsel for the
State and perused the material on record.

2. The petitioners have filed the present
writ petition challenging the order dated
26.10.2009 passed by respondent no.3 in Case
No.2/13/36/2004 (Vikram Singh and others Vs.
Ratiram and others), Case No.36/2009 (State
Vs. Hari Singh), Case No.37/2009 (State Vs.
Mangu), Case No.52/2009 (State Vs. Hari
Singh), Case No.55/2009 (State Vs. Churdi) and
Case No.56/2009 (State Vs. Luxman) under
Section 198(4) U.P.Z.A. & L.R. Act and against
the order dated 29.3.2001 passed by respondent
no.2 in Revision No.92/2010-11 under Section
333 of U.P.Z.A. & L.R. Act and order dated
10.9.2012 passed by respondent no.2 in Misc.
Case No.45/2011-12.

3. The averments in brief are as under:-

4. The Plot Nos. 205, 205/1 and 110/4
situate at village Hasan Garhi Tehsil Kanth
District Moradabad was Navi Prati land
recorded in the revenue records under category
5(1) was allotted to the petitioners, they being
landless persons and eligible for allotment of
land on lease. It is stated that the Land
Management Committee of Gaon Sabha passed
a resolution dated 29.1.1987 and allotted land of
Khata No.194 on lease in favour of the
petitioners in the following manner:-

Serial
Numb
er
Name of
Allottee
Plot Number
and Area in
Hect.
Place of Land
1
Chhedda 110/4/0.443
Hasangarhi
2
Rajpal
205/1/1.00
"
3
Churdi
205/1/0.405
"
4
Hari
Singh
205/0.417
"
5
Luxman 205/1/0.417
"
6
Mangu
205/0.930
"

5. It is further stated that the
resolution of the Land Management
Committee dated 29.1.1987 was approved
by the Sub Division Magistrate, Kanth,
Moradabad vide his order dated 21.2.1987
and in pursuance to the said leases the
names of the petitioners were duly mutated
in the revenues records and since then the
petitioners are in continuous possession
over the land in question. It is further
stated that vide order dated 23.8.2002
passed by Sub Divisional Officer, Kanth
under Section 131 of the Land Revenue
Act,
the
petitioners
were
declared
Bhumidhars of the aforesaid land with
transferable rights. The petitioners have
also placed on record the Khatauni
pertaining to the allotment of land in
favour of the petitioners.

6. After about 16 years one Vikram
Singh son of Chunni filed his objection
under
Section
198(4)
of
the
U.P.
Zamindari Abolition and Land Reforms
Act, 1950 (hereinafter referred to as the
Act) seeking the cancellation of the leases
granted to the petitioners on the ground
that the same were leased out to the
petitioners without following the proper
procedure, although the said objections
were filed after about 16 years, the Sub
Divisional Officer, Kanth entertained the
said objections and called for a report from
the Tehsildar. It is stated that Naib
Tehsildar submitted some ex-parte report
on 10.3.2004 (Annexuire-3 to the writ
petition). The Tehsildar vide his report
submitted that the land in question was
entered in category 6 which is a public
utility land and the allotment of the said
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
land was illegal, unless order was passed
under Section 132 (c) of the Act
converting
the
land
from
category
category 6 to category 5 and there being
no order to that effect on record, the
allotment of the land in question in favour
of the petitioners is illegal.

7. Perusal of the said report on record
shows that the Tehsildar never took the
views of the petitioners prior to preparing
his report. The petitioners allege that in
pursuance to the said ex-parte report the
Sub Divisional Officer, Kanth forwarded
the matter before the respondent no.3 for
initiating the proceedings for cancellation
of leases under Section 198(4) of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950. The petitioners state that on
4.7.2009 a show cause notice was served
on the petitioners by the respondent no.3
calling upon the petitioners to file
objections as to why the cancellation of
the allotment of the land in question may
not be proceeded with only on the ground
that allotment of the land was barred under
Section 132 of the Act.

8. In response to the said show cause
notice the petitioners preferred their
objections highlighting the facts regarding
the allotment of the land as well as the
petitioners being declared as Bhumidhars
way back in the year 2002. It was also
highlighted that in the land revenue
records of 1391 Fasli up to 1397 Fasli
were being produced wherein the land in
question was recorded as cultivable Navin
Perti. The petitioners also challenged the
issuance of show cause notice beyond the
prescribed period of limitation and on the
question of non-joinder of necessary
parties. The respondent no.3 vide his order
dated 26.10.2009 (Annexure-6 to the writ
petition) recorded that the Tehsildar in his
report had recorded that the allotment of
the land was barred under Section 132 of
the Act which was established by the
report of the Tehsildar and proceeded to
hold that the allotment of the land was
illegal and erroneous and, thus proceeded
to cancel the leases granted in favour of
the petitioners. The petitioners came to
know of the ex-parte report of the
Tehsildar only when the order dated
26.10.2009 was passed. The petitioners
challenged the order dated 26.10.2009 by
filing a Revision No.92/2010-11 under
Section 333 of U.P. Zamindari Abolition
and Land Reforms Act, 1950 before the
respondent no.2. In the said Revision
specific grounds were taken that the
proceedings initiated were beyond the
prescribed period of limitation as also that
the land in question was not affected by
Section 132 (2) of the Act. The respondent
no.2 vide his order dated 29.3.2011
dismissed the Revision relying upon the
C.H. Form Nos.41, 45 and holding that the
land in question was a public utility land
specified under Section 132 of the Act and
the allotment of the said land was wholly
illegal.

9. The petitioners thereafter preferred
a Review application under Section 47 (1)
C.P.C., the said Review petition was
dismissed on the question of limitation.
The petitioners have alleged in the writ
petition filed before this Court that an
information was sought by filing R.T.I.
application
with
regard
to
the
consolidation
proceedings
relating
to
village Hasan Garhi, Tehsil Kanth, District
Moradabad. In response to the said
application it was informed that the
consolidation proceedings were initiated
by issuing notification under Section 4 (2)
of the U.P. Consolidation of Holdings Act
on 16.4.1992, published on 12.9.1992,
1 All. Chhidda & Ors. Vs. State of U.P. & Ors.
1105
however, subsequently a notification was
issued under Section 6 (1) of the Act dated
4.5.2000, published on 24.6.2000 whereby
the
consolidation
proceedings
were
dropped
(Annexure-12
to
the
writ
petition). The petitioners have also brought
on record a certified copy of the Khatauni
pertaining to revenue records of 1391 Fasli
to 1397 Fasli showing that the land was
recorded under category 5 (1) and not
under the category 6.

10. In the backdrop of the facts
referred above, the counsel for the
petitioners argued that the C.H. Forms 41
& 45 are forged documents in view of the
fact that the consolidation proceedings had
been admittedly dropped under Section 6
(1) of the U.P. Consolidation of Holdings
Act. It is further argued that the
proceedings
initiated
against
the
petitioners are specifically barred under
Section 198 (6) of the Act. The petitioners
have also challenged the orders on the
ground of violation of principles of natural
justice inasmuch as the ex-parte report of
the Tehsildar was never provided to the
petitioners. It is further submitted that
even the said report of the Tehsildar,
which is the sole basis for cancellation of
the leases of the petitioners, does not even
take into consideration the revenue records
wherein the land in question was recorded
under category 5 (1) and not under
category 6. On 10.5.2013 this Court while
entertaining the writ petition passed
following order which is reproduced
herein below:-

"Heard Sri R.P.S. Chauhan,
learned
counsel
for
the
petitioners,
learned Standing Counsel appearing for
the State-respondents and Sri Vijai Bhan
Singh, holding brief of Sri M.N. Singh,
learned counsel for the Gaon Sabha.

The submission is that the
petitioners
were
granted
lease
on
21.2.1987 and in view of section 131 of the
U.P. Zamindari Abolition and Land
Reforms Act, 1950, they were declared as
Bhumidhars with transferable right on
23.8.2002.
The
proceeding
for
cancellation of the lease was initiated on
the instance of an individual on 26.7.2003.
In view of sub section (6) of section 198 of
the U.P. Zamindari Abolition and Land
Reforms Act, 1950, the proceeding was
barred by time, but both the courts below
have erred in cancelling the lease treating
the land falling under section 132 of the
U.P. Zamindari Abolition and Land
Reforms Act, 1950 on the ground that the
same is recorded in the consolidation
records as river.

Sri Chauhan contends that the
petitioners
have
filed
documentary
evidence
while
filing
the
review
application showing that the village in
question
was
never
notified
for
consolidation and the entire records, on
which basis the Tehsildar has submitted
the report, is forged.

The matter requires scrutiny.

Issue notice.

Notices on behalf of respondent
nos. 1 to 4 have been accepted by the
office of learned Chief Standing Counsel,
whereas Sri M.N. Singh has put in
appearance on behalf of respondent no. 5.
Therefore, notices need not be served
again to the aforesaid respondents.

Issue notice to respondent no. 6
through registered post returnable at an
early date.

Steps be taken within two weeks.

In
the
meantime,
counter
affidavit, if any, may be filed by learned
counsel for the respondents.

As an interim measure, without
prejudice to right and contention of the
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
parties and subject to further orders of this
Court, the eviction of the petitioners from the
land in dispute shall remain stayed, provided:

(i) petitioner nos. 2 and 6
deposit Rs. 5,000/- (Rupees five thousand
only) and the remaining petitioners, i.e.,
petitioner nos. 1, 3, 4 and 5, deposit Rs.
2,500/- (Rupees two thousand five hundred
only) within a period of two months from
today before the respondent no. 4;

(ii) the above amount shall be
deposited every year in the same month in
which the first deposit is made;

(iii) the condition of deposit will
not apply in case the State Government
declares the area under drought or flood;

(iv) the amount so deposited
shall be kept in a separate account;

(v) in case the writ petition is
allowed, the amount so deposited shall be
returned to the petitioners as per the
deposits of each petitioners with interest
and in case the writ petition is dismissed,
the amount so deposited shall go to the
Gaon Sabha;

(vi) in case of default of the
above conditions, the interim protection
granted today shall stand vacated;

(vii) in the meantime, neither any
construction shall be made over the land
in dispute nor any third party right shall
be created."

11. In response to the averments
made in the writ petition Lekhpal has filed
a counter affidavit wherein it has been
repeatedly said that the land in question is
recorded under category 6 and have
justified the cancellation of the leases.
There is no reply to the specific averments
of the petitioners that the consolidation
proceedings
although
initiated
were
dropped. There is no reply to the specific
averments that the C.H. Form Nos. 41 &
45 are forged documents. The respondents
have even failed to file any document to
establish that the land in question was a
public utility land. There is no reply to the
specific averments with regard to the
limitation.

12. In the backdrop of the
submission made at the bar the following
questions arise for consideration:-

i) Whether any show cause
notice proposing cancellation of lease can
be issued beyond the period of limitation
prescribed under Section 198 (6) of the
U.P. Zamindari of Abolition and Land
Reforms Act, 1950 ?

ii) Whether the cancellation of
lease granted to the petitioners can be
termed as a valid exercise of power ?

13. The counsel for the petitioners
has placed reliance upon a judgment of
this Court dated 10.5.2019 passed in Writ
C No.33761 of 2014 (Smt. Shakuntla and
others Vs. State of U.P. & others) in
support of his case. Relevant part of the
said case is reproduced herein below:-

"Section 195 of the Act confers
the power on the Land Management
Committee to admit any person as
Bhumidhar with non-transferable right
with the prior approval of the Tehsildar
(the word "Tehsildar" has been replaced
by Assistant Collector by virtue of U.P.
Act No. 11 of 2002).

Section 197 of the said Act
confers
the
power
on
the
Land
Management Committee to admit any
person as Aasami of any land, and Section
198 of the said Act provides that for
admitting any person to land under
Section 195 or Section 197 of the Act, the
Land
Management
Committee
shall
observe the following order of preference
as enumerated in the sub-section 1 of
1 All. Chhidda & Ors. Vs. State of U.P. & Ors.
1107
Section 198 of the Act. Section 198(4) of
the Act confers the power on the Collector,
who may of his own motion, or on an
application made by any person aggrieved
enquire into the matter and if he is
satisfied that the allotment is irregular he
may cancel the allotment and the lease, if
any. Sub-section 5 of Section 198 provides
for issuance of a show cause notice prior
to passing of any order under Section
198(4) by the Collector and Section 198(6)
of the Act provides for limitation for
issuance of a show cause notice.

It is thus clear from a plain
reading of Section 198(6) (b) that in the
cases where the allotment of the land is
made on or after 10th November 1980 a
show cause notice proposing to cancel the
lease can be issued only within a period of
five years from the date of allotment or
upto 10th November 1987 whichever is
later. The said limitation is prescribed for
exercise of power by the Collector where
the allotments are made in an irregular
manner under Section 198(4) of the Act. In
the present case applications were filed by
the third persons alleging that huge
irregularities
were
committed
while
allotting the land and a prayer was made
for exercise of powers under Section
198(4) for cancellation of the lease. The
said power for cancelling the lease, in the
cases,
where
allegations
are
made
alleging irregularity while allotment can
be exercised only within the period of five
years prescribed from the date of the
allotment or upto 10th November 1987. In
the present case, the land was allotted on
21.2.1987 and thus the show cause notice
could be issued only upto 20.2.1992 and
not thereafter. The action of divesting
anybody
of
its
rights
in
land
is
confiscatory in nature and thus the
statutory
enactment
pertaining
to
limitation has to be strictly interpreted.

From the plain reading of
Section 198(6)(b) of the Act, it is clear that
the power of cancellation/issuance of show
cause notice can be done only within the
limitation as prescribed and not thereafter.
The proceedings in the present case
having been initiated after about 16 years
are clearly barred by limitation thus
rendering the entire proceedings as
without jurisdiction."

14. It has been argued at the bar that
where allotment of the land in question
specifically barred as in the present case
under Section 132 of the Act, no limitation
will apply. Section 132 of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 provides as under:-

"132.
Land
in
which
[bhumidhari] rights shall not accrue. -

Notwithstanding
anything
contained in Section 131, but without
prejudice to the provisions of Section 19,
[bhumidhari] rights shall not accrue in -

(a)
pasture
lands
or
lands
covered by water and used for the purpose
of growing singhara or other produce or
land in the bed of a river and used for
casual or occasional cultivation;

(b) such tracts of shifting or
unstable
cultivation
as
the
State
Government may specify by notification in
the Gazette; and

(c) lands declared by the Slate
Government by notification in the Official
Gazette, to be intended or set apart for
taungya plantation or grove lands of a
[Gaon Sabha] or a Local Authority or land
acquired or held for a public purpose and
in particular and without prejudice to the
generality of this clause-
1108 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) lands set apart for military
encamping grounds;

(ii) lands included within railway
or canal boundaries;

(iii) lands situate within the
limits of any cantonment;

(iv) lands included in sullage
farms or trenching grounds belonging as
such to a local authority;

(v) lands acquired by a town
improvement trust in accordance with a
scheme sanctioned under Section 42 of the
U.P. Town Improvement Act, 1919 (U.P.
Act V11 of 1919) or by a municipality for
a purpose mentioned in Clause (a) or
Clause (c) of Section 8 of the U.P.
Municipalities Act, 1916 (U.P. Act VII of
1916); and

(vi) lands set apart for public
purposes under the U.P. Consolidation of
Holdings Act, 1953 (U.P. Act V of 1954)."

15. The said argument does not
merits acceptance for the sole reason that
the land in question has to be set apart for
public
purposes
under
the
U.P.
Consolidation of Holdings Act. In the
present case there is specific argument and
document on record to establish that the
consolidation of holdings proceedings
pertaining to the land in question were
never finalized and were dropped mid
away and thus, it cannot be held that any
bar as provided under Section 132 of the
Act was triggered relating to the land in
question. I am also not impressed with the
arguments that in the cases which are
covered by Section 132 of the Act, no
limitation would apply. In this regard, it is
relevant to mention that the Hon'ble
Supreme Court has categorically held that
where no limitation is prescribed action
should be taken within a reasonable time,
in the present case the proceedings were
initiated after about 16 years which can
never be termed as a reasonable period.
The relevant observation of the Supreme
Court in the case of Joint Collector
Ranga Reddy District and another Vs.
D. Narsing Rao and others, 2015 3 SCC
695 and held as under:

"25. The legal position is fairly
well-settled by a long line of decisions of
this Court which have laid down that even
when there is no period of limitation
prescribed for the exercise of any power,
revisional or otherwise, such power must
be exercised within a reasonable period.
This is so even in cases where allegations
of fraud have necessitated the exercise of
any corrective power. We may briefly
refer to some of the decisions only to bring
home the point that the absence of a
stipulated period of limitation makes little
or no difference in so far as the exercise of
the power is concerned which ought to be
permissible only when the power is
invoked within a reasonable period.

31. To sum up, delayed exercise
of revisional jurisdiction is frowned upon
because if actions or transactions were to
remain forever open to challenge, it will
mean avoidable and endless uncertainty in
human affairs, which is not the policy of
law. Because, even when there is no
period of limitation prescribed for exercise
of such powers, the intervening delay, may
have led to creation of third party rights,
that cannot be trampled by a belated
exercise
of
a
discretionary
power
especially when no cogent explanation for
the delay is in sight. Rule of law it is said
must run closely with the rule of life. Even
in cases where the orders sought to be
revised are fraudulent, the exercise of
power must be within a reasonable period
of
the
discovery
of
fraud.
Simply
describing an act or transaction to be
fraudulent will not extend the time for its
correction to infinity; for otherwise the
1 All. Chhidda & Ors. Vs. State of U.P. & Ors.
1109
exercise of revisional power would itself
be tantamount to a fraud upon the statute
that vests such power in an authority.

32. In the case at hand, while the
entry sought to be corrected is described
as fraudulent, there is nothing in the notice
impugned before the High Court as to
when was the alleged fraud discovered by
the State. A specific statement in that
regard was essential for it was a
jurisdictional fact, which ought to be
clearly asserted in the notice issued to the
respondents. The attempt of the appellantState to demonstrate that the notice was
issued within a reasonable period of the
discovery of the alleged fraud is, therefore,
futile. At any rate, when the Government
allowed the land in question for housing
sites to be given to Government employees
in the year 1991, it must be presumed to
have known about the record and the
revenue entries concerning the parcel of
land made in the ordinary course of
official business. In as much as, the notice
was issued as late as on 31st December,
2004, it was delayed by nearly 13 years.
No explanation has been offered even for
this delay assuming that the same ought to
be counted only from the year 1991.
Judged from any angle the notice seeking
to reverse the entries made half a century
ago, was clearly beyond reasonable time
and was rightly quashed."

16. The orders impugned in the
present writ petition are also liable to be
quashed as having been passed without the
observance of principles of natural justice.
It is clearly borne out from the record that
the Tehsildar never gave any opportunity
to the petitioners before preparing the
report in question, a copy of the
Tehsildar's report was never provided to
the petitioners prior to the passing of the
order dated 26.10.2009. The veracity of
the Tehsildar's report was not even
considered by the respondent no.3 before
passing the order dated 26.10.2009 and,
thus, the orders cancelling the lease based
only upon ex-parte report, I am afraid are
liable to be quashed the orders as having
been
passed
without
observing
the
principles of natural justice.

17.

The
writ
petition
merits
acceptance and the orders impugned are
liable to be quashed on both counts i.e.
that the orders cancelling the lease has
been passed beyond the prescribed period
of limitation as well as on the ground that
the orders passed are without observing
the principles of natural justice.

18. Thus, in view of the findings
recorded above, the orders dated 26.10.2009
and 29.3.2011 as well as the order dated
10.9.2012 are liable to be quashed.

19. Accordingly, the order dated
26.10.2009 passed by respondent no.3
Additional
Collector
(City)
District
Moradabad in Case No.2/13/36/2004,
36/2009, 37/2009, 52/2009, 55/2009 and
Case No.56/2009 under Section 194(4)
U.P.Z.A. & L.R. Act, 1950 and the order
dated 29.3.2001 passed by respondent no.2
Additional
Commissioner
(Administration)
Moradabad
Division,
Moradabad in Revision No.92/2010-11
(Chhidda and others Vs. State of U.P. and
others) and the order dated 10.9.2012
passed by respondent no.2 Additional
Commissioner
(Administration)
Moradabad Division Moradabad in Misc.
Case No.45/2011-12 (Chhidda and other
Vs. State of U.P. & others, Annexures-6, 8
and 11 to the writ petition), are quashed.
1110 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The writ petition is allowed.
However, there will be no order as to
costs.
----------
(2020)1ILR 1109

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2019
BEFORE
THE HON'BLE ANJANI KUMAR MISHRA, J.

Writ C No. 29335 of 2019

Jayveer ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shiv Nath Singh, Sri Surya Bhan Singh,
Sri Akhilesh Kumar

Counsel for the Respondents:
C.S.C., Sri Anuj Bajpai

A. U.P. Panchayat Raj Act, 1947 - Section
12-J - Temporary arrangement in certain
cases - ground of challenge - Post of
Pradhan, in question, reserved for a
member of the Scheduled Caste - A
member
of
the
Gram
Panchayat
belonging to the general category has
been
nominated
by
the
District
Magistrate to function as Pradhan -
Order passed by District Magistrate set
aside. (Para 10 & 13)

Held: - Once it is admitted that the post of
Pradhan, was of a seat reserved for a member
of
the
Scheduled
Caste
and
members
belonging to the Schedule Caste were available
for being nominated to discharge the powers
and functions of Pradhan under Section 12-J of
the Act. They should have been preferred over
a member belonging to the general category as
the seat in question was one reserved for a
Scheduled Caste. (Para 11)

Writ Petition allowed. (E-7)

List of cases cited: -

1. Brij Rani Singh Vs State of U.P. 2000 volume
2 AWC 1775

2. Udaiveer Vs State Election Commission of
UP, 2009 (106) RD 151

3. Shyamu Vs State of U.P. and others, 2010
(8) ADJ 459
(Delivered by Hon'ble Anjani Kumar
Mishra, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel
for the State-respondents.

2. On the previous occasion, time
had been granted to the learned Standing
Counsel to obtain instructions. Today, on
the matter being called out, Learned
Standing Counsel has stated that despite a
communication having been sent, no
instructions have been received from the
respondents.

3. Although no notice has been
issued to respondent no:3 in the writ
petition, the same is being decided finally,
in view of the order proposed to be passed.
In
case
the
said
respondent
feels
aggrieved, it shall be open for her to apply
for recall of this order.

4. The writ petition seeks a writ of
certiorari,
quashing
the
order
dated
24.07.2018, passed by the respondent no.
2, the District Magistrate, Shahjahanpur,
under Section 12-J of the U.P. Panchayat
Raj Act.

5. It appears that the elected Pradhan of
Gram
Panchayat
Munni
Khera,
District
Shahjahanpur, was incapable of discharging his
functions, as such, on account of his
incarceration. Therefore, the respondent no. 3 has