# Nirmala Devi v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 438
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-28
- **Case number:** J. Writ C No. 26762 of 2023
- **Bench:** Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nirmala-devi-v-state-of-u-p-ors-50894
- **Pages:** 19

## Headnote

Civil Law - Constitution of India,1950Article 226-challege to-cancellation of
land allotment-the dispute concerns the
allotment of land to one Naresh Singh in
1979,
later
transferred
to
the
petitioner(Nirmala Devi) and recorded in
revenue records-After 39 years, in 2017, a
complaint by one Pradeep Kumar led to
proceedings
to cancel the allotment,
alleging non-residency of the original
allottee(Naresh Singh) in the concerned
Gram
Sabha-The
District
Magistrate
initially found the proceedings barred by
limitation but ruled the allotment "illegal"
based on the inquiry report, initiating suo
moto proceedings for cancellation-the
petitioner challenged this, arguing that
the
delay
of
39
years
made
the
proceedings inavalid and that no fraud
was involved in the allotment or transferHeld, the court reviewed the provisions of
Section
128
of
the
U.P.
Revenue
Code,2006 which allows for cancellation
of allotments but imposes a five year
limitation on applications by aggrieved
persons-No specific limitation applies to
suo moto actions-The court held that
actions, even if suo moto, must be
initiated within a "reasonable time"-The
39 year delay was deemed unreasonableinitiation of proceedings after such a delay
was
arbitrary
and
unsustainable-The
orders
dated
14.09.2018(District
Magistrate's decision to proceed suo
moto)
and
29.05.2023
(Additional
Commissioner's
dismissal
of
the
petitioner's revision as interlocutory) were
quashed.(Para 1 to 56)

The writ petition is allowed. .( E-6)

List of cases cited:

## Text

_Characters 0–39,980 of 64,143. This is a partial read: ask again with offset=39980 for what follows._

438 INDIAN LAW REPORTS ALLAHABAD SERIES
rights claimed in secured asset falls under
the sub-clause (a) or sub-clause (b) or subclause (c) or sub-clause (d) of clause (i),
then notwithstanding anything to the
contrary contained in any other law for the
time being in force, the Debt Recovery
Tribunal may pass such order as it deems
fit in accordance with the provisions of this
Act."

8. In view of the above, we are not
inclined to entertain the writ petition for the
reliefs prayed for. The writ petition being
devoid of merits, is dismissed leaving it
open for the petitioner to invoke the
remedy available to him under the law.
----------
(2024) 2 ILRA 438
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2023
BEFORE

THE HON'BLE SYED QAMAR HASAN RIZVI,
J.

Writ C No. 26762 of 2023

Nirmala Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vishal Khandelwal

Counsel for the Respondents:
C.S.C., Sri Anil Kumar, Sri Avinash Chandra
Srivastava, Sri Satish Kumar Pandey

Civil Law - Constitution of India,1950Article 226-challege to-cancellation of
land allotment-the dispute concerns the
allotment of land to one Naresh Singh in
1979,
later
transferred
to
the
petitioner(Nirmala Devi) and recorded in
revenue records-After 39 years, in 2017, a
complaint by one Pradeep Kumar led to
proceedings
to cancel the allotment,
alleging non-residency of the original
allottee(Naresh Singh) in the concerned
Gram
Sabha-The
District
Magistrate
initially found the proceedings barred by
limitation but ruled the allotment "illegal"
based on the inquiry report, initiating suo
moto proceedings for cancellation-the
petitioner challenged this, arguing that
the
delay
of
39
years
made
the
proceedings inavalid and that no fraud
was involved in the allotment or transferHeld, the court reviewed the provisions of
Section
128
of
the
U.P.
Revenue
Code,2006 which allows for cancellation
of allotments but imposes a five year
limitation on applications by aggrieved
persons-No specific limitation applies to
suo moto actions-The court held that
actions, even if suo moto, must be
initiated within a "reasonable time"-The
39 year delay was deemed unreasonableinitiation of proceedings after such a delay
was
arbitrary
and
unsustainable-The
orders
dated
14.09.2018(District
Magistrate's decision to proceed suo
moto)
and
29.05.2023
(Additional
Commissioner's
dismissal
of
the
petitioner's revision as interlocutory) were
quashed.(Para 1 to 56)

The writ petition is allowed. .( E-6)

List of cases cited:

1. Ghanshyam & 11 Ors Vs U.O.I. & ors. Writ-C.
5606 of 2020

2. Siemens Ltd. Vs St. of Mah. & ors.. (2006) 12
SCC 33

3. Joyous Blocks & Panels Pvt. Ltd & anr. Vs
Asst. Commr, Commercial Taxes, Ballygunj
Charge & anr. (2022) SCC Online Cal 2032

4. Subhag & anr.. Vs Board of Revenue U.P. at
Alld & ors.. (2011)114 RD 219

5. Suresh Giri & ors.. Vs Board of Revenue U.P.
at Alld & ors.. (2010)109 RD 566

6. Jiya Ram & ors.. Vs St. of U.P. &
ors..(2012)115 RD 372.
2 All. Nirmala Devi Vs. State of U.P. & Ors.
439
7. Smt. Bhoodevi Vs Board of Revenue &
ors..(1994) RD 92 (HC)

8. Kishnu & ors.. Vs Sheesh Pal & & ors..
(2011)7 ADJ 684

9. Suresh Giri & ors.. Vs Board of Revenue &
ors.. (2010)3 AWC 2834.

10. Jairam Vs St. of U.P. & ors.. (2013) RD 119
567

11. Smt. Sona Devi Vs Board of Revenue Writ-B
No. 48418 Of 2015.

12. St. of Punj. & ors.. Vs Bhatinda Distt Coop.
Milk Producers Union (2007) 11 SCC 363

13. SEBI Vs Sunil Krishna Khaitan & ors.. in
(2023) 2 SCC 643

14. Jagdish Vs St. of Kar.(2021 12 SCC 812

15. M/s North Eastern Chemicals Indus.(P) Ltd.
& anr.. Vs M/S Ashok Paper Mill (Assam) Ltd &
anr., Civil Appeal No. 2669 of 2013

16. Smt. Shakuntla & ors.. Vs St. of U.P. & ors..
(2019)5 AWC 5007

17. Ajaib Singh Vs The Sirhind Co-Op. Mktg.
Cum-Processing Service Socy Ltd & ors.. (1999)
6 SCC 82

18. Kishnu & ors.. Vs Sheesh Pal & ors..(2011)7
ADJ 684

 (Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. Heard Sri Vishal Khandelwal,
learned counsel for the petitioner; Sri
Awadesh Kumar Patel, learned Standing
Counsel appearing on behalf of the
State-respondent nos. 1 to 3, Shri A.C.
Srivastava, learned counsel for the Land
Management
Committee
(respondent
no. 4) and Sri Satish Kumar Pandey,
learned counsel for the respondent no.
5.

2. The present writ petition has been
filed seeking a writ in the nature of
certiorari quashing the impugned order
dated 29.05.2023 passed by the Additional
Commissioner (Judicial), Agra Division,
Agra (respondent no. 2) dismissing the
Revision having Case No. 02238 of 2018
as well as the order dated 14.09.2018
passed by the District Magistrate/Collector,
Mainpuri (respondent no. 3), by means of
which the Collector (respondent no. 3),
took the decision to suo moto proceed for
cancellation of the allotment and lease in
Case No.1858 of 2018.

3. With the consent of the learned
counsel for the parties, this Court proceeds
to decide the present Writ Petition at the
admission stage itself.

4. The facts in a nutshell, as are
available on record before this Court, are
that by a Resolution passed by the Land
Management Committee (respondent no. 4)
in its meeting held on 19.05.1979, lease
was granted in favour of 150 persons
including one Naresh Singh, son of Munshi
Lal. In pursuance of the said lease, plot no.
60-M ad-measuring area 0.202-hectare,
plot no. 360 ad-measuring area 0.526
hectare and plot no. 363 ad-measuring area
0.405 hectare were allotted in favour of the
said Naresh Singh and accordingly his
name was entered in the revenue records.

5. Subsequently, the aforesaid Naresh
Singh transferred the said plots in favour of
the petitioner whereby the petitioner was
delivered possession of the same and
subsequently, her name was recorded in the
revenue records
as
'bhumidhar
with
transferable rights'.

6. After a lapse of about 39 years, on
an application/complaint dated 21.09.2017
440 INDIAN LAW REPORTS ALLAHABAD SERIES
moved by Pradeep Kumar (respondent
no.5); proceeding for cancellation of
allotment and lease, under Section 128 of
the U.P. Revenue Code, 2006, was
instituted against the aforesaid Naresh
Singh and also against the petitioner being
the transferee of Naresh Singh. The said
proceeding was registered as Case No.
01858 of 2018.

7. The petitioner along with the
aforesaid
Naresh
Singh
preferred
preliminary
objections
regarding
the
maintainability of the said proceeding on
the ground of limitation. A reply to the
notice was also filed by the petitioner on
29.05.2019, asserting therein that the
aforesaid proceeding is not legally tenable;
firstly, for the reason that the same is barred
by time having been initiated after a lapse
of about 39 years and secondly, the
complainant/applicant (respondent no.5)
was a minor at the time when the allotment
in question was made in the year 1979 and
being a minor, he was not eligible for the
grant of the said lease in his favour, as
such, he does not fall within the category of
an 'aggrieved person'. Further, there was
no illegality or infirmity in the allotment in
question in favour of Naresh Singh and the
same was made perfectly in accordance
with the procedure as prescribed under law,
after due approval of the resolution and the
names in Aakar Pattra 57-kha, as has been
reported by the Tehsil authorities and is
available in the concerned Records. As
such, the proceeding under Section 128
of the U.P. Revenue Code, 2006 are not at
all maintainable and is liable to be
dropped.

8. The District Magistrate/Collector,
Mainpuri (respondent no.3) called for an
inquiry report and in pursuance of the same
the Sub-Divisional Officer concerned got
the said inquiry conducted through the
Tehsildar and forwarded the same to the
Collector (respondent no.3) on 08.12.2017.
On the basis of the same, the Collector
(respondent no.3) proceeded with the
aforesaid proceeding and passed the order
dated 14.09.2018, categorically holding
therein that although, the said proceeding is
'barred by time' (कालबानिि है) but as per the
report submitted by the Sub Divisional
Officer, the lessee was not a resident of the
concerned Gaon Sabha at the time of the
allotment and lease as such the allotment in
question is 'proved illegal' (अवैिानिक सानबि है).
Thereby, the Collector (respondent no. 3)
decided
to
proceed
suo
moto,
for
cancellation of the allotment and lease and
consequently, issued notice to the lessee.

9. Assailing the aforesaid order dated
14.09.2018, the petitioner along with the
aforesaid Naresh Singh filed a Revision
before the Commissioner, Agra Division,
Agra, under section 210 of the U.P.
Revenue Code, 2006, which was registered
as Case No. 02238 of 2018. The main
ground raised by the petitioner in the said
Revision was that the aforesaid proceeding
under section 128 of the U.P. Revenue
Code, 2006 is vitiated as it could only be
instituted up to the period of five years
after the grant of lease, but since the
proceeding
in
question
has
been
initiated beyond the prescribed period,
rather, after a lapse of about 39 years,
the same is not at all maintainable. It
was further pleaded by the petitioner
that the question of limitation goes to
the root of the jurisdiction of the Court
and as such, the Collector (respondent
no.3) could not have proceeded with the
case in the teeth of the fact that the
Collector (respondent no.3) by the same
order himself held the proceeding as
barred by time.
2 All. Nirmala Devi Vs. State of U.P. & Ors.
441

10.

The
learned
Additional
Commissioner,
Agra
Division,
Agra
(respondent no. 2) declined to entertain the
aforesaid revision by treating the aforesaid
order dated 14.09.2018 passed by the
learned Collector (respondent no.3) to be
an order of interlocutory nature and
dismissed the said Revision having Case
No. 02238 of 2018; vide order dated
29.05.2023, with the observation that the
Revisionists have ample opportunity to
contest their case before the respondent
no.3.

11. Being aggrieved by the abovementioned orders dated 29.05.2023 and
14.09.2018, the petitioner preferred the
instant writ petition, inter alia, praying for
the following reliefs:

"i. Issue a writ, order or direction
in the mature of Certiorari quashing the
impugned
order
dated:
29.5.2023
(Annexure No. 9) passed by the respondent
no. 2 Additional Commissioner (Judicial),
Agra Division, Agra, in Revision No.
02238/2018
(computerized
no.
C201801000002238) as well as that of
order dated: 14.9.2018 (Annexure No. 6)
passed by the respondent no. 3- District
Magistrate/Collector, Mainpuri, in Case
No.
1858/2018
(computerised
no.
D20181490001858).

ii. Issue any other writ, order or
direction as this Hon'ble Court may deem
fit
and
proper
in
the
facts
and
circumstances of the case.

iii. Award the cost of the
petitioner to the petitioner."

12. At the very outset, Shri Awadesh
Kumar Patel, learned Standing Counsel
appearing
on
behalf
of
the
State
(respondent nos. 1 to 3) and Shri Avinash
Chandra
Srivastava,
learned
Standing
Counsel
for
the
Land
Management
Committee (respondent no. 4) have raised
serious objections on the maintainability of
the present writ petition and have made the
following submissions:

12.1. It has been contended on
behalf of the respondents that the order
impugned in the present Writ Petition is
simply a show cause notice and the
petitioner has every opportunity to defend
her case before the learned District
Magistrate/Collector (respondent no.3) by a
detailed reply to the show-cause notice and
as such the writ petition is not at all
entertainable under Article 226 of the
Constitution of India. In support of his
submission, the learned Standing Counsel
has relied upon the judgment passed by this
Court in the case of Ghanshyam and 11
others versus Union of India and 2
others: Writ-C No. 5606 of 2020.

13. Refuting to the objections raised
by the learned standing counsels on the
maintainability of the present writ petition;
Sri Vishal Khandelwal, learned counsel for
the petitioner has advanced the following
submissions:

13.1. He submits that in the
present case, the impugned order dated
14.09.2018
passed
by
the
Collector
(respondent no. 3) is a premeditated order
that has finally decided the question of
limitation and moreover, determined the
allotment and lease of the plots in question,
as 'proved illegal' (अवैिानिक सानबि है). The said
show
cause
notice
is
inflicted
by
premeditated adjudication on the legality of
the question of allotment and lease holding
the same to be illegal thereby adversely
affecting the valuable rights of the
petitioner. Therefore, the said impugned
order dated 14.09.2018/show cause notice
442 INDIAN LAW REPORTS ALLAHABAD SERIES
is not a mere show cause notice simpliciter
and as such deserves interference by this
Court in exercise of its powers under
Article 226 of the Constitution of India. In
support of his case, he has placed before
this Court, the judgment passed by the
Hon'ble Supreme Court in the case of
Siemens
Ltd.
versus
State
of
Maharashtra and others, reported in
(2006) 12 SCC 33; and the judgment
passed by the Hon'ble Calcutta High Court
in the case of Joyous Blocks and Panels
Pvt. Ltd. and another versus Assistant
Commissioner,
Commercial
Taxes,
Ballygunj Charge and another, reported
in 2022 SCC Online Cal 2032.

14. Addressing on the merits of the
case, Sri Vishal Khandelwal, learned
counsel for the petitioner pressed the
following arguments:

14.1.
He
submits
that
undisputedly
the
proceeding
for
cancellation of the allotment and lease
granted in the year 1979 has been initiated
after a lapse of about 39 years, i.e., in the
year 2017. Thus, the same is highly barred
by the limitation as contemplated under
Section 128 of the U.P. Revenue Code,
2006. Further, the said bar of limitation
applies to the proceedings initiated on the
basis of application/complaint as well as
suo moto proceedings.

14.2. Moreover, the proceeding
for cancellation of allotment and lease was
initiated on the basis of an ex-parte inquiry
report dated 08.12.2017 as no prior notice
of the aforesaid inquiry was ever given to
the petitioner or to the aforesaid Naresh
Singh as they were never afforded any
opportunity to participate in the aforesaid
inquiry. Not only this much, even the said
inquiry report was not formally proved in
the manner as provided under law, and
therefore, the same is inadmissible as
evidence and cannot be relied upon.

14.3.
Further,
proceeding
in
question whereby the lease has been sought
to be cancelled is based on the ground of
alleged ineligibility of the allottee namely
Naresh Singh (through whom the petitioner
is claiming) that he was a resident of
different village at the time of allotment in
question, is not an illegality but a mere
irregularity, if any, in the grant of lease and
that does not come within the purview of
fraud, especially when that the tehsil report
itself
categorically
acknowledges
the
resolution of the respondent no. 4 passed in
its meeting held on 29.5.1979 regarding the
allotment and also entry of the name of the
allottee at serial no. 78 in the Aakar Pattra
57 kha, as is evident from the said Tehsil
report as contained in Annexure No.5 to the
writ petition. Therefore, the allegations
made in the impugned orders are contrary
to the records inasmuch as the same do not
match the facts mentioned in the said
report.

14.4. The next submission of the
learned
counsel
is
that
the
Land
Management
Committee
passed
the
resolution dated 29.5.1979 for allotment in
favour of 150 persons including one Naresh
Singh son of Munshi Lal, who after
acquiring the status of 'bhumidhar with
transferable rights' transferred the plots in
question in favour of the petitioner and
accordingly the petitioner was delivered
possession and later on her name was duly
entered in the revenue records, as is evident
from the khatauni as contained in Annexure
No.1 to the writ petition. Therefore, after
the change of the legal status of the allottee
from
lessee
to
'bhumidhar
with
transferrable rights', no proceeding for
cancellation of allotment and lease under
section 128 of the U.P. Revenue Code,
2006 is maintainable.
2 All. Nirmala Devi Vs. State of U.P. & Ors.
443

14.5. Further, he contended that a
large number of villagers filed affidavit as
contained in Annexure No.10 to the writ
petition, deposing therein that the allottee
was residing in the village concerned.

14.6. It has been vehemently
argued by Shri Khandelwal that the
respondent no.5 does not come within the
purview of 'aggrieved person' as the
complainant was a minor at the time when
the allotment in question was made in the
year 1979 and being a minor, he was not
eligible for the grant of the said lease in his
favour. Further, by way of single resolution
the lease was granted to 150 persons
including Naresh Singh, but the present
proceeding has been initiated only against
the petitioner/ Naresh Singh at the behest of
the respondent no.5 who is not even
qualified to move the application as per the
requirement contemplated under Section
128 of the U.P. Revenue Code, 2006.

14.7. The learned counsel further
contended
that
the
proceedings
for
cancellation of the allotment and lease is
solely based on the allegation that the
allottee was not a resident of the Gram
Sabha concerned at the time of allotment in
question. He submits that for the sake of
argument even if it be assumed, though not
admitted to be true that the allottee was
ineligible for allotment and lease, that
may at the most be taken as an
irregularity, and cannot be attributed
as fraud on the part of the allottee,
especially when the inquiry report
dated 08.12.2017 specifically provides
that there is a valid resolution of the
Land Management Committee for the
said allotment and a due entry in the
Aakar Pattar 57 kha.

14.8. As, in the present case,
neither there is any allegation of fraud nor
fraud has been specifically pleaded or
proved, the limitation of 5 years as
stipulated under section 128 of the U.P.
Revenue Code, 2006, is inevitable.

14.9.
Moreover,
the
learned
counsel drew attention of this Court to the
provisions of section 198 of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950. He submitted that the same is
pari materia to section 128 of the U.P.
Revenue Code, 2006. He submits that it has
been held by this Court, time and again,
that the period of limitation as stipulated in
the Act cannot be stretched beyond its
limits irrespective of the fact that the
proceeding for cancellation of allotment
and lease was initiated on an application by
the aggrieved person or by the Collector,
suo moto. In support of this contention, he
has placed reliance on the judgments
passed by this Court in the case of Subhag
and Another versus Board of Revenue
U.P. at Allahabad and others, reported in
2011 (114) RD 219; Suresh Giri and
others versus Board of Revenue U.P. at
Allahabad and others, reported in 2010
(109) RD 566 and Jiya Ram and others
versus State of U.P. and others, reported in
2012 (115) RD 372.

14.10. It has also been contended
by the learned counsel for the petitioner
that the entire proceeding is not only
irrelevant but patently illegal as the
petitioner is a bonafide purchaser of the
abovementioned
plots
for
valuable
consideration
and
her
rights
stands
protected by virtue of Section 41 of the
Transfer of Property Act, 1882.

14.11. Assailing the order dated
29.05.2023 passed by the Additional
Commissioner
(respondent
no.2),
the
contention of the learned counsel is that by
means of the said impugned order, the
revisional court has declined to entertain
the revision filed by the petitioner treating
the order dated 14.09.2018 passed by the
Collector
(respondent
no.
3)
as
an
444 INDIAN LAW REPORTS ALLAHABAD SERIES
'interlocutory order'. His contention is that
the learned Revisional Court has failed to
appreciate the very nature of the impugned
order dated 14.09.2018 by treating it to be
an interlocutory order, whereas the same is
an order giving finality to the issue of
limitation and adversely affected the
valuable rights of the petitioner/revisionist.
Therefore, the same being arbitrary is liable
to be set aside.

15. Sri Satish Kumar Pandey,
learned counsel for the respondent no.5
vehemently opposed the writ petition by
refuting the submissions made on behalf of
the petitioner and has raised the following
arguments:

15.1. The learned counsel has
argued
that
the
learned
Additional
Commissioner (respondent no. 2) has very
rightly dismissed the revision filed by the
petitioner challenging the impugned order
dated 14.09.2018, which is an interlocutory
order and against which revision does not
lie and this issue has already been taken
into consideration by this Court in the case
of Smt. Bhoodevi versus Board of
Revenue and others reported in 1994 RD
92 (HC) wherein it was held that a decision
taken suo moto or an application of an
aggrieved party to start proceeding for
cancellation of allotment under section
198(4) of U.P. Zamindari Abolition and
Land Reforms Act, 1950 is an order to
commence the proceeding. Mere decision
to commence the proceeding would not
tantamount "to any suit or proceeding
decided". He contended that the impugned
order dated 29.05.2023 passed by the
revisional
court
of
Additional
Commissioner (respondent no. 2) is just
and legal.

15.2. The learned counsels further
submit
that
as
the
proceedings
for
cancellation of allotment were initiated suo
moto, the benefit of the period of limitation
is not available to the petitioner in the
instant case. In support of his contention,
he placed reliance on the judgment passed
by this Court in the case of Kishnu and
others versus Sheesh Pal and others,
reported in 2011(7) ADJ 684.

15.3. Next submission advanced
by the learned counsel for the respondent
no. 5 is that the petitioner has failed to
establish that the original allottee, namely,
Naresh Singh, was the resident of the
concerned village at the time of allotment
and
as
such,
the
learned
Collector
(respondent
no.3),
vide
order
dated
14.09.2018 has rightly speculated that the
allotment and lease in question has been
obtained by fraud and held it to be illegal.

15.4. In addition to the above,
Shri Pandey, learned counsel for respondent
no. 5 contended that the petitioner as well
as the original allottee Shri Naresh Singh,
are not entitled to avail the benefit of the
restriction of time limit prescribed for the
initiation of the proceeding of cancellation
of allotment and lease, for the simple
reason that the petitioner could not bring
on record any evidence to establish the
fact that Shri Naresh Singh was the
resident of the village concerned at the
time of allotment in question, which is a
mandatory requirement under law and as
such, the allotment made in favour of
Naresh
Singh
was
fraudulent.
He
submits that it is well settled that fraud
unravels everything and further vitiates
every solemn act, and an act of fraud is
always to be viewed seriously. In
support of his contention, he has relied
upon the judgment passed by this Court
in the case of Suresh Giri and others
versus Board of Revenue and others,
reported in 2010 (3) AWC 2834.

16. Before delving into the merits of
the case, this Court finds it imperative to
2 All. Nirmala Devi Vs. State of U.P. & Ors.
445
firstly deal with the issue of entertainability
of the present writ petition.

17. From a bare perusal of the
impugned order dated 14.09.2018, it is
abundantly clear that, although, the learned
Collector (respondent no. 3) has held that
the claim of the applicant as 'barred by
time' (कालबानिि है) but on the footing of a
report dated 08.12.2017 submitted by the
Sub-District
Magistrate
concerned,
recorded a finding that since the defendant
is not the resident of the Gram Sabha
Division, the allotment in his favour is
prima facie 'proved illegal' (अवैिानिक सानबि है)
and by relying upon the judgment passed
by this Court in the case of Jairam versus
State of Uttar Pradesh and others,
reported in 2013 RD (119) 567 has
contemplated that the issue of limitation in
the present case is 'not worth consideration'
(काल सीमा का नबन्दु नवचारणीय िहीं है). It is relevant to
mention here that the learned Collector
(respondent no. 3) has completely turned
a blind eye to the fact that the Order
dated 18.09.2012 passed by this Court in
the case of Jairam (Supra) was already
reviewed and set aside by this Court vide
Order dated 12.08.2013 passed in Review
Application No. 316024 of 2012 In:
WRIT-C No. 51989 of 2007. For ready
reference, the relevant portion of the
impugned order dated 14.09.2019 is
extracted hereinbelow,

"...दावा
वादी
कालिाप्रर्त
है,
पर्तु
उपप्रजलाप्रर्कारी की आख्या से िप्रतवादी का आवंटि िथम दृिया
िप्रतवादी के ग्रामसिा मण्डल से िाहर का प्रिवासी होिे के कारण
अवैर्ाप्रिक साप्रित है। प्रजला शासकीय अप्रर्वक्ता राजस्व द्वारा
िस्तुत आर.डी.-2013 (119/पृष्ठ 567) जयराम ििाम स्टेट
आि उ० ि० में उद्धृत माििीय उच्ि ्यायालय की प्रवप्रर् व्यवस्था
पूणषतः लागू होती है। ऐसी प्रस्थप्रत में इस वाद में काल सीमा का प्रि्दु
प्रविारणीय िहीं है।..."

18. The Collector (respondent no. 3)
on the aforesaid premise took the decision
to initiate the suo moto proceeding for
cancellation of the allotment and lease,
against the allottee by issuing notice to
him.

19. It would not be out of place to
elucidate
that
the
power
to
issue
prerogative Writs under Article 226 of the
Constitution of India is plenary in nature. It
does not, in terms, impose any restraint on
the exercise of the power to issue Writs. It
is the discretion of the Writ Court to
entertain writ petition or not, depending
upon the facts and circumstances of each
case. One of the self-imposed restrictions
on the exercise of the power under Article
226 of the Constitution that has evolved
through judicial precedents, is that the High
Court should normally not entertain a writ
petition against a show-cause notice unless
the same, inter alia, appears to have been
issued without jurisdiction.

20. The Hon'ble Supreme Court in
the case of Siemens Ltd. (Supra) and also
the Hon'ble Division Bench of the Calcutta
High Court in the case of Joyous Blocks
(Supra) have held that if the authority has
pre-decided the issue and the show-cause is
pre-mediated then it is not a show-cause
and in such a situation, the Writ Court may
very
well
interfere
with
the
said
notice/order, in exercise of its extraordinary jurisdiction under Article 226 of
the Constitution of India.

21. As far as the judgment passed by
this Court in the case of Ghanshyam
(Supra) is concerned, which has been relied
upon by the learned Standing Counsel, the
same is in respect of the issue of
entertainability of the writ petition against a
show cause notice simpliciter and in the
446 INDIAN LAW REPORTS ALLAHABAD SERIES
light of the discussion made herein above
the same is not attracted in the instant case.

22. It is a well settled legal position
that wherever there is an infringement of
any legal right, the Writ Court has the
jurisdiction to take cognisance of the same,
in exercise of its power conferred under
Article 226 of the Constitution of India.
Taking into consideration the aforesaid
legal preposition, this Court finds substance
in the submission advanced by the learned
counsel for the petitioner that the impugned
order dated 14.09.2018 passed by the
Collector
(respondent
no.
3)
is
a
premeditated order and not a show cause
notice simpliciter that has finally decided
the question of limitation by recording a
categorical finding that the issue of
limitation in the present case is 'not worth
consideration'(काल सीमा का नबन्दु नवचारणीय िहीं है)
and moreover, virtually determined the
allotment and lease of the plots in question,
as 'proved illegal' (अवैिानिक सानबि है). The
impugned order in the name of show cause
notice
is
inflicted
by
premeditated
adjudication on the legality of the question
of allotment and lease, holding the same to
be illegal that adversely affects the valuable
rights of the petitioner and further, the
petitioner being a recorded 'bhumidhar
with transferable rights' carries a valuable
right and interest in the property / plots in
question. Her rights of not to be deprived of
property save by the authority of law are
protected under Article 300 A of the
Constitution of India.

23. Since, the issue of limitation goes
to the root of the matter and once the
limitation expires, it attaches finality to the
rights of the parties by operation of law. In
view of the factual matrix of the case, the
question of jurisdiction as well as the
violation of the rights guaranteed under the
Constitution of India, is involved in the
instant case; justice demands indulgence by
this Court in exercise of its Writ
jurisdiction under Article 226 of the
Constitution of India.

24. Once the preliminary objection
raised by the learned standing counsels
regarding the maintainability of the present
writ petition has been overruled; it would
now be apt to delve into the merits of the
case.

25. Having heard the learned counsels
for the parties and on considering the
materials available on record; the pivotal
issue that has emerged for consideration is
that whether after a lapse of about 39 years,
the impugned Order dated 14.09.2018
passed by the learned Collector (respondent
no.3) to proceed for the cancellation of the
allotment and lease of land, will endure the
test of the time frame, as envisaged by
Section 128 of the U.P. Revenue Code,
2006 ?

26. Before proceeding further, it
would be germane to go through the
provisions of Section 128 of the U.P.
Revenue
Code,
2006.
For
a
ready
reference, the same are extracted below:

"128. Cancellation of allotment
and lease. (1) The Collector may, of his
own motion and shall on the application of
any person aggrieved, inquire in the
manner prescribed into any allotment and
if he is satisfied that the allotment is in
contravention of the provisions of this Code
or any of the enactments repealed by this
Code or the rules made there under, he may
cancel the allotment and the lease, if any.

[(1-A)] Under the provisions of
sub section (1), an application may be
moved in the case of an allotment or lease
2 All. Nirmala Devi Vs. State of U.P. & Ors.
447
of
land
made
before
or
after
the
commencement of this code, within five
years from the date of such allotment of
lease.

(2) Where the allotment or lease
of any land is cancelled under sub-section
(1), the following consequences shall
ensue, namely-

(a) the right, title and interest of
the allottee or lessee or any other person
claiming through him in such land and in
every tree or other improvement existing
thereon shall cease, and the same shall
revert to the Gram Panchayat;

(b) the Collector may direct
delivery of possession over such land, tree
or improvement forthwith to the Gram
Panchayat after ejectment of every person
holding or retaining possession thereof and
may for that purpose use or cause to be
used such force as may be necessary.

(3) Where in proceedings for
cancellation of allotment or lease referred
to in clause (b) of sub-section (1) the
Collector is satisfied that any land referred
to in section 77 excepting clause (a) or
clause (h) or (i) thereof has been allotted to
any person as bhumidhar with nontransferable rights, he may instead of
cancelling the allotment, or lease, direct
that the allottee or lessee shall be treated
as an asami under clause (b) of section
125.

(4) Every order made by the
Collector under this section shall, subject
to the provisions of section 210, be final.

(5) The provisions of sections 5
and 49 of the Uttar Pradesh Consolidation
of Holdings Act, 1953 shall not apply to the
proceedings under this section."
27. From a bare perusal of the aforesaid
provisions of Section 128 of the U.P.
Revenue Code, 2006, it is evident that the
said Section contains the following two
situations in which the Collector can
proceed for cancellation of allotment and
lease by holding inquiry:

(i) the collector may, of his own
motion inquire in the manner prescribed,
into any allotment.

(ii) the collector shall on the
application of any person aggrieved,
inquire in the manner prescribed, into any
allotment.

28. Further, the sub-section (1-A)
specifically provides the limitation of five
years for an application to be moved from
the date of such allotment and lease. As
such, in clear words, the limitation
mentioned under the said sub-section (1-A)
applies to the application moved by an
aggrieved person. It is also noteworthy that
the Appendix-I appended to Rule 191 of the
U.P. Revenue Code Rules, 2016, which
specifies the period of limitation for the
suits, applications and proceedings also
does not mention any limitation regarding
cancellation of allotment and lease as
provided under section 128 of the U.P.
Revenue Code, 2006.

29. The learned counsel for the
petitioner has placed heavy reliance on the
judgments passed by this Court in the case
of Subhag and another versus Board of
Revenue U.P. at Allahabad and others,
reported in 2011 (114) RD 219; Suresh
Giri and others versus Board of Revenue
U.P. at Allahabad and others, reported in
2010 (109) RD 566 and Jiya Ram and
others versus State of U.P. and others,
reported in 2012 (115) RD 372.

30. Since, the above-mentioned
judgments relate to the issue of limitation
as provided under section 198 of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 and in the present case the
dispute relates to the proceeding under
448 INDIAN LAW REPORTS ALLAHABAD SERIES
section 128 of the U.P. Revenue Code,
2006. As such, for a better understanding, it
would be apt to have a brief comparative
study of both the said sections, particularly
the provisions of limitation contained
therein, in respect of the proceeding for
cancellation of allotment and lease.

31. It would not be out of place to
mention here that the provisions of section
128 of the U.P. Revenue Code, 2006 are
pari materia to the provisions contained in
Section 198 of the U.P. Zamindari
Abolition and Land Reforms Act, 1950,
which now has been repealed. For a better
appreciation of the same, the sub-sections
(4), (5) and (6) of the said section 198 are
extracted below,

"198. Order of preference in
admitting persons to land under Sections
195 and 197.-

[(4) The [Collector] may of his
own motion and shall on the application of
any person aggrieved by an allotment of
land inquire in the manner prescribed into
such allotment and if he is satisfied that the
allotment is irregular, he may cancel the
allotment and the lease, if any.

(5) No order for cancellation of
an allotment or lease shall be made under
sub-section (4), unless a notice to show
cause is served on the person in whose
favour the allotment or lease was made or
on his legal representatives:

...

(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 up to
November 10, 1987, which ever be later]."

32. The aforesaid sub-section (4) of
Section 198 provides the manner and the
power of the Collector to inquire into the
matter, before proceeding for cancellation
of an allotment or lease.

33. At this stage, it would be relevant
to refer to the judgment passed by this
Court in the case of Smt. Sona Devi versus
Board of Revenue, WRIT-B No. 48418 of
2015, wherein it has been held that the
phrase "every notice to show cause" as
mentioned in section 198 (6) of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950, makes it clear that there is one
limitation for the action in the case filed by
aggrieved persons as well as suo motu
initiation of proceeding for cancellation of
patta. For a ready reference, Paragraph 8 of
the said judgment is quoted hereinbelow,

"8. By U.P. Act No. 20 of 1982
and U.P. Act No. 24 of 1986, the Act itself
provided 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. The phrase
"every notice to show cause", as mentioned
in Section 198 (6) of the Act, makes it clear
that different limitation as previously
provided for suo motu 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 in the case
filed by aggrieved persons as well as suo
2 All. Nirmala Devi Vs. State of U.P. & Ors.
449
motu
initiation
of
proceeding
for
cancellation of patta has been provided.
Full Bench of Board of Revenue U.P. in
Virendra Singh vs. State of U.P., 1994 RD
540 has not taken notice of above
legislative change and does not hold the
good law."

34. Similarly, in the case of Suresh
Giri (Supra), a Co-ordinate Bench of this
Court has repelled the argument that the
limitation has no application for initiation
of suo motu action under Section 198(6) of
the U.P. Zamindari Abolition and Land
Reforms Act, 1950. For a ready reference,
the Paragraph 14 of the said judgment is
extracted hereinbelow,

"14. Entry 24 of Appendix III
prescribes a period of six months for
moving an application raising objection
against any irregular allotment of land and
three years for suo motu action by the
Collector for setting aside the allotment of
land. Therefore, the limitation for initiation
of proceedings for cancellation of allotment
by the Collector on suo motu action is three
years whereas notice for such purpose can
be issued within 5 years as provided under
Section 198(6) of the Act. Thus, the
legislator
clearly
intend
to
provide
limitation even for suo motu action and the
submission that the limitation has no
application for initiation of suo motu action
for cancellation of allotment of land/lease
is baseless and is to be rejected."

35. Needless to say that the U.P.
Revenue Code, 2006 is a comprehensive
and self-contained Code and it has been
enacted with the objective to consolidate
and amend the law relating to land tenures
and land revenue in the State of Uttar
Pradesh. It goes without saying that unlike
the limitation period for issuing notice as
provided under section 198(6) of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950, read with Entry 24 of Appendix
III under Rule 338 of the U.P. Zamindari
Abolition and Land Reforms Rules, 1952;
the provisions of Section 128 of the U.P.
Revenue Code, 2006 read with Appendix-I
appended to Rule 191 of the U.P. Revenue
Code Rules, 2016, prescribe limitation only
for an application to be moved by an
aggrieved person, but no limitation is
expressly prescribed for the initiation of
suo moto action by the collector, for the
cancellation of allotment and lease. Thus,
the limitation to proceed under sub-section
(1) of section 128 of the U.P. Revenue
Code, 2006 is confined to the limitation
period as provided under sub-section (1-A)
of the same and as such, it is crystal clear
that the aforesaid Section 128 is silent in
respect of an inquiry to be initiated by the
Collector, on his own motion.

36. In view of the above, the above
quoted judgments that are relied upon by
the learned counsels, specifically deals with
the limitation as provided under the section
198 of the U.P.