# Suresh Giri and others v. Board of Revenue & others

- **Citation:** (2010) 1 ILRA 133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-02-26
- **Case number:** Civil Misc. Writ Petition No. 4570 of 2010
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-giri-and-others-v-board-of-revenue-others-41503
- **Pages:** 6

## Headnote

U.P. Zamindari and Land Reform Act.
Section 158 (b)-suo motu action taken
by collector without notice, opportunity
to petitioner held- even exercise power-
Notice is must.

Held: Para 20 & 21

In view of above, it is held that the
period of limitation prescribed under
Section 198(6) of the Act for issuance of
notice
before
cancellation
of
the
allotment of the land/lease is applicable
even to suo motu proceedings. However,
the Collector is not forbidden to initiate
proceedings for cancellation even after
the
expiry
of
limitation
prescribed,
provided he has reason to believe that
the allotment is likely to vitiate on
account of fraud but in exercise of such
power
has
to
act
with
great
circumspection as observed above and
not in a routine or a causal manner.

In
the
facts
of
present
case
and
circumstances that the Collector has
expressed satisfaction with regard to
fraud, I am not inclined to interfere with
the orders passed and the writ petition is
disposed of accordingly with liberty to
134 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the collector to proceed in the matter, if
considered proper, in accordance with
law
keeping
in
mind
the
directions/observations made above.

## Text

1 All] Suresh Giri and others V. Board of Revenue and others
133
must be harmonious so that one is not
rendered redundant. The harmonious
construction can therefore be that a prayer
for bail may be contained in a petition of
appeal together with a prayer made in a
separate bail application. In the spirit of
Rule 18(1), 18 (3) (a) and 18 (3) (b), read
with Rule 18(4), it is clear that an
application for bail has to be moved and
the same will show as to whether it is the
first or second or subsequent bail
application and there cannot be any
second or subsequent bail application
without
there
being
a
first
bail
application.

14. In view of the above entire
discussions, we are of this opinion that a
separate bail application has to be filed
along with the appeal and that bail
application shall also be supported with
an affidavit setting out in the form of
paragraphs the material facts and grounds
upon which the applicant relies.

15. In view of the above, the
appellants are directed to move a separate
bail application within two weeks if they
so desire.

List after two weeks.

16. Registry of the High Court shall
also publish in the cause list dated
8.2.2010 for information to all concerned
that separate bail application would be
required along with the petition of
criminal appeal even though prayer for
bail is made in the grounds of appeal
concerned.
---------
APPELLATE JURISDICTIION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2010

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 4570 of 2010

Suresh Giri and others ...Petitioners
Versus
Board of Revenue & others. ..Respondents

Counsel for the Petitioner:
Sri S.N. Panday
Sri A.K. Panday

Counsel for the Respondent:
Sri D.D. Chauhan
C.S.C.

U.P. Zamindari and Land Reform Act.
Section 158 (b)-suo motu action taken
by collector without notice, opportunity
to petitioner held- even exercise power-
Notice is must.

Held: Para 20 & 21

In view of above, it is held that the
period of limitation prescribed under
Section 198(6) of the Act for issuance of
notice
before
cancellation
of
the
allotment of the land/lease is applicable
even to suo motu proceedings. However,
the Collector is not forbidden to initiate
proceedings for cancellation even after
the
expiry
of
limitation
prescribed,
provided he has reason to believe that
the allotment is likely to vitiate on
account of fraud but in exercise of such
power
has
to
act
with
great
circumspection as observed above and
not in a routine or a causal manner.

In
the
facts
of
present
case
and
circumstances that the Collector has
expressed satisfaction with regard to
fraud, I am not inclined to interfere with
the orders passed and the writ petition is
disposed of accordingly with liberty to
134 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the collector to proceed in the matter, if
considered proper, in accordance with
law
keeping
in
mind
the
directions/observations made above.

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

1. The facts giving rise to this writ
petition lies in a narrow campus.

2. A resolution was passed by the
Land Management Committee village
Kaseru, Tehsil Gabhana, District Aligarh
on 27.2.1993 proposing to allot and lease
out the land in dispute as Bhumidhari
with non-transferable rights in favour of
the petitioners. The said resolution was
approved by the competent authority vide
order dated 18.4.1993 and the names of
petitioners were recorded in revenue
records. A complaint was made after
about 15 years on 11.2.2008 that the
aforesaid allotment is irregular and as
such is liable to be cancelled. On the said
complaint, Case No.57 under Section
198(4) of the U.P. Zamindari Abolition
and Land Reforms Act (hereinafter
referred to as the 'Act') was registered.
Petitioners submitted an application/
objection dated 18.8.2008 alleging that
complaint is patently barred by time and
cannot be entertained. However, ignoring
the application/objection of the petitioners
dated 18.8.2008 notice dated 16.7.2009
was issued to them to show cause why the
allotment made in their favour be not
cancelled. Petitioners preferred a revision
against the order of issuance of the said
notice before the Board of Revenue and
the same was decided on 1.9.2009 with
the observation that the question of
limitation as raised vide application dated
18.8.2008 be decided in accordance with
law
before
proceeding
on
merits.
Accordingly, the issue of limitation was
considered vide order dated 16.11.2009
and
the
Collector
without
actually
deciding the same directed for suo motu
action
for
cancellation
of
the
allotment/lease
of
the
petitioners.
Aggrieved by the aforesaid direction a
revision was preferred by the petitioners
which was dismissed by the Board of
Revenue on 24.12.2009.

3. The order of the Collector dated
16.11.2009 for initiating suo motu action
for cancellation of the allotment/lease of
the petitioners and the order of the Board
of Revenue dated 24.12.2009 dismissing
the revision have been assailed in this writ
petition.

4. I have heard Sri S.N. Pandey,
learned counsel for petitioners, learned
Standing Counsel for respondents no.1
and 2 and Sri D.D. Chauhan who has
appeared for respondent no.3 and with
their consent proceed to decide the writ
petition on merits at this stage itself.

5. The only submission of Sri
Pandey is that the Collector even in
exercise of suo motu powers cannot
initiate proceedings for cancellation of
allotment/lease after expiry of period of
limitation prescribed for issuing notice
under Section 198(6) of the Act.

6. According to the learned Standing
Counsel the limitation provided under
Section 198(6) of the Act is applicable
only where proceedings for cancellation
have been initiated on the application of
the person aggrieved and the same would
not
be
applicable
where
Collector
proceeds to take suo motu action for the
cancellation of allotment.

7. In order to consider the above
submission, it would be appropriate to
1 All] Suresh Giri and others V. Board of Revenue and others
135
first have a look on the relevant
provisions of Section 198 of the Act,
which are reproduced herein below:

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

(1) .............
(2) ............
(3) ............
(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.
(4-A) ............
(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:
Provided that no such notice shall be
necessary
in
proceedings
for
the
cancellation of any allotment or lease
where such proceedings were pending
before the Collector or any other court or
authority on August 18, 1980.
(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, whichever be later.
(7) ..............
(8) ..............
(9) ............. "

8. The aforesaid Act is a social piece
of legislation which not only abolishes the
zamindari system and brings the tiller of
soil and state in direct contact but also
envisages to provide land to the landless
agricultural labourers and to protect the
possession of the landless persons of
scheduled castes and scheduled tribes.

9. Sections 195 and 197 of the Act
accordingly provides for admission of
persons as enumerated under Section 198
(1) of the Act as Bhumidhar with nontransferable rights or Asami over Gaon
Sabha land with the approval of the
competent authority and the procedure for
such admission has been provided under
the Rules framed under the Act.

10. The Collector is empowered
under Section 198(4) of the Act of his
own motion or on the application of any
person aggrieved to cancel the allotment
of the Gaon Sabha land made in favour of
any person as well as the lease, if any, if
he is satisfied that the allotment made is
irregular. The power of cancellation of
allotment of land so made cannot
obviously be exercised in violation of the
principles of natural justice and it is
imperative to provide an opportunity of
hearing to the person concerned i.e. the
allottee of the land before passing an
order of cancellation. It is with this view
that section 198(5) of the Act specifically
provides for issuing/sending a show cause
notice upon the person concerned before
passing an order of cancellation of
allotment or lease.

11. The time in which the notice for
cancellation of allotment of land/lease can
136 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
be issued by the authority concerned is
provided in Section 198(6) of the Act
which lays down that in cases where
allotment is made before 10th November,
1980 notice may be issued within a period
of seven years of said date and in cases
where allotment is made on or after 10th
November, 1980 before the expiry of five
years from such allotment or up to 10th
November, 1987 whichever be later. In
short, the limitation for issuing a show
cause notice is five years from the
allotment where it is made on or after
10th November, 1980.

12. The provisions of sub-section
(4), (5) and (6) of Section 198 of the Act
are to be construed in conjunction with
one another and cannot be read inisolation. The aforesaid provisions are
unambiguous and the language used
therein is plain and simple which makes
no distinction between proceedings for
cancellation of allotment initiated suo
motu or on the application of a person
aggrieved. Therefore, they have to be
construed in the ordinary sense and in no
other way. Sub-Section (4) of Section 198
of the Act provides for cancellation of
allotment/lease by the Collector on his
own motion as well as on the application
of the person aggrieved. In both the cases,
allotment/lease can not be cancelled
without affording an opportunity of
hearing to the allottee or the person
concerned, as otherwise the action of
cancellation would be termed arbitrary
and violative of principles of natural
justice. Sub-section (6) of Section 198 of
the Act follows Section 198(4) of the Act
which as such covers both the types of
proceedings for cancellation viz. suo motu
as well as on application of person
aggrieved.

13. Accordingly, in my opinion, the
inevitable conclusion is that the time
frame prescribed for issuing notice before
cancelling the allotment/lease of a land
provided under sub-section (6) of Section
198 of the Act is applicable to both suo
motu proceedings as well as proceedings
on
the
application
of
the
person
aggrieved.

14. In examining the above point,
one cannot lose sight of Rule 338 of the
Rules framed under the aforesaid Act
which provides that the suits, applications
and other proceedings under the Act shall
be instituted within the time specified in
Appendix III to the aforesaid Rules. It
reads as under:-

"338. The suit applications and other
proceedings specified in Appendix III
shall be instituted within the time
specified therein for them, respectively."

15. 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.
1 All] Suresh Giri and others V. Board of Revenue and others
137

16. It may be remembered that if
anything has to be done by an authority it
has to be done in the manner prescribed in
the Statute and in no another manner.
Therefore, as the Act itself provides for a
period of three years for initiation suo
motu proceedings for cancellation of
allotment/lease and a period of 5 years for
issuance of notice for the purpose it
leaves the authority concerned with no
scope to act beyond the time frame so
provided.

17.

Moreover,
allowing
the
Collector to initiate suo motu proceedings
for cancellation of allotment/lease at any
time would mean that the allotment would
never be final and there would always be
danger of its cancellation. This perhaps
could never be the intention of the
legislator. The limitation of three years as
contained in Appendix III of the Rules
and five years provided under Section
198(6) of the Act is a well thought of as
the aforesaid period of time is sufficient
enough either for the person aggrieved to
make a complaint against the irregular
allotment or for the authorities to examine
and verify the record and to take action
for cancellation suo motu, if necessary.

18. The last limb of the argument of
Standing Counsel is that it is a case of
fraudulent allotment of land and therefore,
irrespective of limitation provided, the
Collector is well within its jurisdiction to
draw proceedings for cancellation of such
allotment even if the time prescribed has
expired.

19. It is well known that fraud
vitiates every solemn act and an act of
fraud is always to be viewed seriously.
The observation of Lord Justice Denning
in Lazarus Estates Ltd. Vs. Beasley
(1956) 1 All E.R. 341 which is quoted
below works as a lighthouse even today
for those dispensing justice. "No court in
this land will allow a person to keep an
advantage which he has obtained by
fraud. No judgment of a court, no order of
a Minister, can be allowed to stand, if it
has been obtained by fraud. Fraud
unravels everything." In view of the
above, there is no room to doubt that an
order of allotment of land, if obtained by
collusion or fraud cannot be allowed to
stand and the court would not intervene in
such matters so as to permit squandering
of the property of the State which vests in
the Gaon Sabha. Protection of the State
property from such fraud by initiation of
action for cancellation of allotment/lease
would however, be independent of the
power of cancellation of such allotment
envisaged under Section 198(4) of the Act
for the reason that Section 198(4) comes
into play in the limited sphere where the
allotment is found to be irregular and not
otherwise. Accordingly, in my considered
opinion cancellation of allotment/lease on
account of fraud is altogether an separate
exercise which can be undertaken by the
authorities
concerned
irrespective
of
Section 198(4) of the Act. However,
proceedings for cancellation of allotment
of land/lease on the ground of fraud has to
be exercised with great care & caution
and not blindly or on unilateral version. It
is only when the concerned authority on
the basis of relevant material has a reason
to believe that the allotment is based upon
fraud it may proceed in the matter. In so
determining the stand, a distinction has to
be made between fraud played by the
beneficiary or the fraud committed by the
officers or the authorities. Where the
authority is of the opinion that the allottee
is responsible for the alleged fraud it can
initiate proceedings for cancellation of the
138 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
allotment/lease
and
after
giving
opportunity of hearing to him may cancel
the same. In the event the authority feels
otherwise and the involvement of the
allottee is not found and the needle of
suspension is upon some employee/officer
action it must take appropriate action first
against
such
employee/officer
and
simultaneously if considered proper for
cancellation of allotment/lease.

20. In view of above, it is held that
the period of limitation prescribed under
Section 198(6) of the Act for issuance of
notice before cancellation of the allotment
of the land/lease is applicable even to suo
motu proceedings. However, the Collector
is not forbidden to initiate proceedings for
cancellation even after the expiry of
limitation prescribed, provided he has
reason to believe that the allotment is
likely to vitiate on account of fraud but in
exercise of such power has to act with
great circumspection as observed above
and not in a routine or a causal manner.

21. In the facts of present case and
circumstances that the Collector has
expressed satisfaction with regard to
fraud, I am not inclined to interfere with
the orders passed and the writ petition is
disposed of accordingly with liberty to the
collector to proceed in the matter, if
considered proper, in accordance with law
keeping
in
mind
the
directions/observations made above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2010

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 5110 of 2010

Mohd. Maruf Ahamad
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.D. Sharma

Counsel for the Respondents:
C.S.C.

Constitution
of
India
Art.
226Cancellation of appointment-dated of
birth recorded in High School-heldconclusive
proof-unless
altered
on
modified by the Board-date of birth as
recorded in school register-on basis of
information of the Principal of institution
the authorities came to the conclusion
that on the date of advertisement-age of
petitioner was less 7 days than 20 yearswithout giving any opportunity without
notice
to
the
petitioner-held-order
impugned on erroneous assumption can
not sustain.

Held: Para 6

Further it is evident that the impugned
order has been passed relying on the
information given by the Principal of the
institution
on
19.11.2009.
The
said
information was received and the order
was
passed
without
putting
the
petitioner to notice or calling upon him
to rebut the said contention. In this view
of the matter, the impugned order is also
invalid as being in violation of principles
of natural justice.