# Ulfat & Ors v. Additional Commissioner

- **Citation:** (2023) 2 ILRA 322
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-20
- **Case number:** Writ-C No. 41347 of 2012
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ulfat-ors-v-additional-commissioner-49206
- **Pages:** 11

## Headnote

A. Civil Law - UP Zamindari Abolition &
Land Reforms Act, 1950 - Sections 132 &
198(4) - Review power - How far
maintainable before Commissioner - Held,
the power of review would lie with the
Board of Revenue only. The schedule that
prescribes for judicial proceedings is
schedule (1) which does not provide for
any forum of review. So the forum of
review is only the Board of Revenue -
Held further, the Court substantively
reviewed its order on merit which was
certainly not available to it. (Para 13 and
19)
B. Substantive review and Procedural
review
-
Distinction
-
Power
of
substantive review is to be exercised by
any court or Tribunal or authority if such a
power is specifically conferred upon it
under the relevant statute but the power
2 All. Ulfat & Ors. Vs. Additional Commissioner (Judicial), Moradabad & Ors.
323
of procedural review which can be held to
be a recall in a sense, could be exercised.
(Para 18)
Writ petition allowed. (E-1)
List of Cases cited :-

## Text

322 INDIAN LAW REPORTS ALLAHABAD SERIES

31. In Collector of Nilgiris at
Ootacamund Vs. Mahavir Plantations Pvt.
Ltd. MANU/TN/0285/1982, the Madras
High Court while dealing with the
valuation guidelines has held that the
Collector under Section 47-A can not
shrink his responsibility of determining the
market value by adopting the guidelines
nor can he fix the market value without
proper materials and evidence to support it.
The very idea of an inquiry contemplated
by Section 47-A and the detailed procedure
prescribed in the relevant rules goes to
show that the Collector's finding must be
verifiable by evidence. The valuation
guidelines
prepared
by
the
Revenue
officials at the instance of the Board of
Revenue were not prepared on the basis of
any open hearing of the parties concerned,
or of any documents with a view to
eliciting the market value of the properties
concerned. They were based on data
gathered
broadly
with
reference
to
classification of land, grouping of land and
the like. This being so, the Collector acting
under Section 47-A cannot regard the
guidelines valuation as the last word on the
subject of market value.

32. From the aforesaid discussions, it
is very much clear that respondents has
flouted the provisions of U.P. Stamp Rules,
1942, which was prevalent at the time of
execution of the sale-deed.

33. On the basis of aforesaid
discussions, this Court is of the opinion that
the respondents have not acted properly
and in accordance with the existing U.P.
Stamp Rules, 1942 and have passed the
impugned orders in arbitrary and illegal
manner, therefore the writ petition is
allowed and the impugned judgement and
orders dated 14.06.1994 Annexure No. 2
and the order dated 24.08.1998 Annexure
No. 5 to this writ petition are hereby
quashed.
----------
(2023) 2 ILRA 322
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-C No. 41347 of 2012

Ulfat & Ors. ...Petitioners
Versus
Additional
Commissioner
(Judicial),
Moradabad & Ors. ...Respondents

Counsel for the Petitioners:
Sri V.C. Srivastava, Sri I.P. Singh, Sri Saiful
Islam Siddiqui, Ms. Tahira Kazmi, Vinay
Kumar Pathak

Counsel for the Respondents:
C.S.C., Sri Mahesh Narain Singh, Sri Tarun
Agarwal, Sri Shashank Bhartiya, Sri Arun
Kumar Pandey

A. Civil Law - UP Zamindari Abolition &
Land Reforms Act, 1950 - Sections 132 &
198(4) - Review power - How far
maintainable before Commissioner - Held,
the power of review would lie with the
Board of Revenue only. The schedule that
prescribes for judicial proceedings is
schedule (1) which does not provide for
any forum of review. So the forum of
review is only the Board of Revenue -
Held further, the Court substantively
reviewed its order on merit which was
certainly not available to it. (Para 13 and
19)
B. Substantive review and Procedural
review
-
Distinction
-
Power
of
substantive review is to be exercised by
any court or Tribunal or authority if such a
power is specifically conferred upon it
under the relevant statute but the power
2 All. Ulfat & Ors. Vs. Additional Commissioner (Judicial), Moradabad & Ors.
323
of procedural review which can be held to
be a recall in a sense, could be exercised.
(Para 18)
Writ petition allowed. (E-1)
List of Cases cited :-
1. Shivraji Vs Deputy Director of Consolidation,
Allahabad; 1997 0 Supreme (All) 806
2. Shri Ram Sahu (dead) through LRS & ors. Vs
Vinod Kumar Rawat & ors., 2020 LawSuit (SC)
685
3. Indo Gulf Industries Ltd. Vs St. of U.P. & ors.,
2016 (2) AWC 1645
4. Sakuntla & Ors Vs St. of U.P. & ors; 2019 (5)
AWC 5007
5. Babulal Vs St. of U.P. & ors.; 2012 (12) ADJ
37
6. Grindlays Bank Ltd. Vs Central Industrial
Tribunal, AIR 1981 SC 606
7. Kapra Mazdoor Ekta Union Vs Birla Cotton
Spinning & Weaving Mills Ltd., 2005 (13) SCC
777
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Saiful Islam Siddiqui and
Ms. Tahira Kazmi, learned counsel for the
petitioners, Sri Arun Kumar Pandey,
learned counsel for the Gaon Sabha and Sri
Shashank
Bhartiya,
learned
Advocate
holding brief of Sri Tarun Agrawal, learned
counsel for the caveator-respondent and Sri
Ashok Kumar Kushwaha, learned Standing
Counsel.

2. Petitioners before this Court are
aggrieved
against
the
orders
dated
04.01.2011 and 18.04.2012 passed by the
Additional
Commissioner
(Judicial),
Moradabad Division, Moradabad, whereby,
in the first instance he reviewed his earlier
order
dated
13.03.2008
and
so
consequently restored the revision petition
of the petitioners and then dismissing the
writ petition on merits upholding the order
passed by the Collector dated 28.04.2007.

3. Briefly stated facts of the case are
that the petitioners claimed to be the valid
lease holders of the land in question by
virtue of resolution passed by the Land
Management Committee dated 12.04.1997
which
stood
approved
by
the
Sub
Divisional
Officer
vide
order
dated
13.05.1997.

4. It appears that on the basis of some
report submitted by Sub Divisional Officer,
Sahabad dated 24.06.2006 a case came to
be registered under Section 198(4) of the
U.P.Z.A. & L.R. Act. Notices were stated
to have been issued by the lease holders
which was seriously objected to, however,
the land was held to be covered by Section
132 of the U.P.Z.A. & L.R. Act and thus,
the order cancelling the lease was passed
on 28.04.2007. Against the said order the
petitioners preferred revision before the
Additional
Commissioner,
Moradabad
Division, Moradabad who after perusal of
records held that the Collector did not
correctly and minutely examined the
allotment records as the allotment was
made to the petitioners in the category of
Bhumidhari with non transferable rights
and just because paper no. 57-B got a
wrongful transcription of Sirdari rights in
respect of lease holders, it would not have
affected the rights of the petitioners by way
of allotment of bhumidhari rights though
non transferable. It was held by the
Commissioner that the petitioners/ allottees
could not be held responsible for such
typographical
error
as
there
was
a
resolution for the purposes of bhumidhari
lease. The court held that by efflux of time
they have acquired bhumidhari rights also
and therefore, at such a belated stage, the
lease could not have been cancelled. Thus,
324 INDIAN LAW REPORTS ALLAHABAD SERIES
the court sitting in revision allowed the
revision application of the petitioner and
set aside the order passed by the Additional
Collector cancelling the lease.

5. It appears that a review petition
came to be filed before the Additional
Commissioner (Judicial), Moradabad upon
which he reviewed his earlier order dated
23.05.2007 by order dated 04.01.2011 and
restored the revision petition for the
purposes of its disposal again on merits
vide the same order. It is after reviewing
the revision petition, the Court ordered at
the same time for summoning of lower
court records but no fresh notices were
issued to the present petitioners for final
hearing in the matter. The court then finally
heard the matter again and this time vide
order dated 18.04.2012 dismissed the
revision and confirmed the order passed by
the Additional Collector, Rampur dated
28.04.2007.

6. Assailing these two orders dated
04.01.2011
and
18.04.2012,
learned
counsel for the petitioners submitted that in
the
first
instance
the
Additional
Commissioner (Judicial) had no power of
review. He submits that the power of
review lies only with the Board of Revenue
under Section 219 of the U.P. Land
Revenue Act, 1901 which had been made
applicable vide schedule III of U.P.Z.A. &
L.R. Act, 1950. He submits that the power
of review is a statutory power and unless
the statute confers the power upon a
particular judicial authority under the Act
creating such authority, no court or
Tribunal or the authority exercising quasi
judicial power can exercise power of
review.

7. Learned counsel for the petitioners
in this regard has relied upon a Full Bench
authority of this Court in Shivraji v.
Deputy
Director
of
Consolidation,
Allahabad, 1997 0 Supreme (All) 806 and
that of the Supreme Court in the case of
Shri Ram Sahu (dead) through LRS &
Others v. Vinod Kumar Rawat &
Others, 2020 LawSuit (SC) 685. Learned
counsel for the petitioners has also relied
upon a judgment of a coordinate bench of
this Court in the case of Indo Gulf
Industries Ltd. v. State of U.P. & Others,
2016 (2) AWC 1645; and secondly learned
counsel for the petitioners has argued that
the order passed by the authority dated
04.01.2011 and 18.04.2012 are both ex
parte orders as no notice or opportunity of
hearing provided to the petitioners before
reviewing the order or before passing fresh
order.

8. It is argued that once bhumidhari
rights got created in favour of the
petitioners, petitioners could not have been
treated to be a mere lease holders so as to
attract the provisions contained under
Section 198(4) of U.P.Z.A. & L.R. Act,
1950. Yet another argument advanced by
learned counsel for the petitioners is that
there being no finding of fraud returned
against the petitioners, in the absence of
such forgery or fraud being pleaded, the
suo motu exercise of power by the
respondent revenue authorities to initiate
proceedings under Section 198(4) was
absolutely beyond time and hence not
maintainable. Learned counsel for the
petitioners has relied upon a judgment of
this court in 2019 (5) AWC 5007,
Sakuntla & Ors v. State of U.P. & Ors
and 2012 (12) ADJ 37, Babulal v. State of
U.P. & Ors.

9. It is further argued that the
Additional Collector while setting aside the
leases, has simply relied upon the report of
2 All. Ulfat & Ors. Vs. Additional Commissioner (Judicial), Moradabad & Ors.
325
Tehsil authorities and not much finding of
fact has returned as to how the land was at
the time of allotment a land falling under
Section 132 of U.P.Z.A. & L.R. Act.

10. Per contra it is argued by learned
Standing Counsel for State Sri Kushwaha
as well as Sri Arun Kumar Pandey, learned
counsel for the Gaon Sabha that the land
covered under Section 132 of U.P.Z.A. &
L.R. Act could not have been allotted by
way of bhumidhari lease and therefore,
such a power could have been exercised
under Section 198(4).

11. Learned Advocates appearing for
the State as well as Gaon Sabha contended
that the orders passed by the Additional
Collector as well as by the Commissioner
subsequently are final orders passed on
sound reasoning and if the land itself could
not have been subject matter of lease, lease
rendered
void
and
merely
because
Commissioner does not have power of
review, the law would even otherwise not
recognize the rights of the petitioners upon
the land. He therefore, submits that it may
be left open for the contesting respondents
to re-agitate the matter at the stage of
Additional Commissioner in the event court
quashes
the
order
of
review
dated
04.01.2011 and the consequential order
dated 18.04.2012.

12. Having heard learned counsel for
the respective parties and their arguments
raised across the bar and the pleadings
raised in the writ petition as well as the
orders impugned, I find that the basic legal
question that is involved in the present
petition would be as to once Additional
Commissioner (Judicial) once has come to
pass an order on merit allowing the revision
petition of the petitioners against the order
passed by Additional Collector cancelling
the leases, could have reviewed the order.
The initial order passed by the Additional
Commissioner is of 13.03.2008 and the
order of review was passed on 04.01.2011.
The only note that is recorded regarding
service upon the respondents is that despite
service of summons the opposite parties.
lease holders have not appeared and then
the court has proceeded to review its order
on the ground that the land was falling in
the category of Section 132 of the U.P.Z.A.
& L.R. Act. The sole ground on which the
review
has
been
allowed
was
the
contention so advanced by the State that the
land fell in the category of Section 132 of
U.P.Z.A. & L.R. Act, but not even prima
facie satisfaction had been recorded that
land did fall in to that category. The
Additional
Commissioner
(Judicial)
reviewing his order dated 13.03.2008 has
categorically recorded that land fell in the
category under Section 117 and merely
because sirdari got transcribed in paper no.
57-B, it would not give any bhumidhari
lease color to an Assami lease. This finding
was required to be reversed in the first
instance, if the order was to be reviewed
but this I find to be quite wanting in the
order
of
review
dated
04.01.2011.
However, while on merits this order could
not have survived, but I find the arguments
raised by learned counsel for the petitioners
that the power of review did not lie with the
Additional
Commissioner
(Judicial)
appears to be more appealing. The
U.P.Z.A. & L.R. Act vide its second
schedule makes applicable provisions of
U.P. Land Revenue Act which provides for
review contained under Section 220 of U.P.
Land Revenue Act, 1901. The provision
runs as under:

"220. Power of Board to review
and alter its order and decrees. - (1) The
Board may review, and may rescind, alter
326 INDIAN LAW REPORTS ALLAHABAD SERIES
or confirm any order made by itself or by
any of its members in the course of
[business connected with settlement.

(2) No decree or order passed
judicially by it or by any of its members
shall be so reviewed except on the
application of a party to the case made
within a period of ninety days from the
passing of tire decree or order, or made
after such period if tire applicant satisfies
tire Board that he had sufficient cause for
not making the application within such
period.

(3) Members not empowered to
alter each other's orders. - A single
member vested with all or any of the
powers of tire Board shall not have power
to alter or reverse a decree or order passed
by tire Board or by any member other than
himself."

13. Thus, the power of review as per
the above quoted provisions would lie with
the Board of Revenue only. The schedule
that prescribes for judicial proceedings is
schedule (1) which does not provide for
any forum of review. So the forum of
review is only the Board of Revenue.

14. This being the above legal
position, it can be safely concluded that the
Additional Commissioner (Judicial) is not
vested with the Board of Revenue. A Full
Bench of this Court in the case of Shivraji
(supra) considering the power of review, if
any
vested
with
the
consolidation
authorities who exercise judicial function
while adjudicating the dispute and title
cases under the U.P. Consolidation of
Holdings Act, 1953 vide paragraph nos. 33
and 34 the Court held thus:

"33.
The
aforementioned
decisions of this Court, as we read them,
do not support the proposition of law that
any tribunal exercising judicial or quasi
judicial power, which is not vested with
power of review under the statute
expressly or by necessary implication,
has an inherent power of review of its
previous order in any circumstances. In
our view the decisions only lay down the
proposition that a tribunal exercising
judicial or quasi judicial power has the
inherent power to correct a clerical
mistake or arithmetical error in its order
and has the power to review an order
which has been obtained by practising
fraud on the court, provided that injustice
has been perpetrated on a party by such
order. There fore, these decisions should
not be construed as laying down any
proposition of law contrary to the wellsettled principle of law that any order
delivered and signed by a judicial or
quasi-judicial authority attains finality
subject to appeal or revision as provided
under the Act and if the authority passing
the order is not specifically vested with
power of review under the statute, it
cannot re-open the proceeding and
review/revise its previous order.

34. Coming to the provisions of
the U. P. Consolidation of Holdings Act, it
is
our
considered
view
that
the
consolidation authorities, particularly the
Deputy Director of Consolidation while
deciding a revision petition exercises
judicial or quasi judicial power and,
therefore, his order is final subject to any
power of appeal or revision vested in
superior authority under the Act. The
consolidation authorities, particularly the
Deputy Director of Consolidation, is not
vested with any power of review of his
order and, therefore, cannot re-open any
proceeding and cannot review or revise his
earlier order. However, as a judicial or
quasi judicial authority he has the power to
correct any clerical mistake/arithmetical
2 All. Ulfat & Ors. Vs. Additional Commissioner (Judicial), Moradabad & Ors.
327
error manifest error in his order in exercise
of his inherent power as a tribunal."

15. Court considering the power of
review of the Board of Revenue and on the
point
of
drawing
any
power
for
consolidation authorities by implication,
vide paragraph nos. 36, 37 & 39 the Court
has held thus:

"36. The question that remains to
be considered relates to vesting of power of
review
in
the
Deputy
Director
of
Consolidation by application of Section
220 of the U.P Land Revenue Act, 1901. Sri
Radhey Shyam, learned counsel for the
contesting respondents, strenuously urged
that in view of the provisions of Section 41
of the Consolidation Act Page: 691and
Section 220 of the U.P Land Revenue Act it
should be held that power of review is
vested
in
the
Deputy
Director
of
Consolidation who is the final revisional
authority under the Consolidation Act. No
doubt Section 41 of the Consolidation Act
makes provisions of Chapters IX and X of
the U.P Land Revenue Act applicable to all
proceedings,
including
appeals
and
applications under the former Act, Section
220, which is a part of Chapter X, vests
power of review in the Board of Revenue
subject to certain conditions/restrictions
specified in the section. The question is, in
the absence of any specific provision of
review in the Consolidation Act, can it be
said that the power of review vested in the
Board of Revenue can be exercised by the
consolidation authorities, particularly the
Deputy Director of Consolidation? In our
considered view, the question has to be
answered in the negative. There is no
provision in Section 41 or in any other
section of the Consolidation Act which
empowers modification of any provision of
the Land Revenue Act for the purpose of
application to consolidation proceedings.
Further Section 41, as we read it, merely
provides that the procedures prescribed
under Chapter IX and X of the Land
Revenue Act will be applicable to all
proceedings
including
appeals
and
applications under the Consolidation Act.
Substantive
provisions
in
the
aforementioned Chapters of the Land
Revenue Act, which have no pari materia
provisions in the Consolidation Act, cannot
have any application to proceedings under
the said Act. If a proceeding cannot be
initiated under the Consolidation Act, the
question of application of the provisions of
Chapters IX and X of the Land Revenue Act
to such a proceeding does not arise. In the
absence of any specific provision vesting
power of review in the authorities under the
Consolidation Act, such a proceeding
cannot be initiated at all. Therefore,
Section 220 of the Land Revenue Act is of
no assistance for the purposes of the
proceedings under the Consolidation Act.
Alternatively, assuming that Section 220
applies to consolidation proceedings and
an
analogy
is
drawn
between
the
proceedings under the two Acts, it is the
Director of Consolidation, being the
highest authority under the Consolidation
Act, who can inferentially be said to have a
power of review as provided in Section 220
of the Land Revenue Act and not the
Deputy Director of Consolidation, who is
one of the revisional authorities under the
Consolidation Act. This question was
considered by a Division Bench of this
Court in the case of Badam Singh and
another v. Ganga Saran and Ram Saran,
1960 (58) A.L.J. 836 in which this Court,
construing Section 41 of the Consolidation
Act, made the following observation:

"Chapter X of the Land Revenue
Act includes Section 220 which confers
upon the Board of Revenue the power to
328 INDIAN LAW REPORTS ALLAHABAD SERIES
review
its
own
orders
in
certain
circumstances, and it is contended that in
applying this section to proceeding under
the U.P Consolidation of Holdings Act a
power of review must be deemed to be
conferred upon the Deputy Director of
Consolidation who corresponds to the
Board of Revenue in so far as he is the final
court of Revision. In our opinion this
argument is not well founded, for Section
41 makes no provision for the modification,
alteration or adaptation of any of the
sections in Chapters IX and X of the Land
Revenue Act in their application to
proceedings under the U.P Consolidation
of Holdings Act. Section 220 specifically
confers the power to review is own decision
on the Board of Revenue and on no other
authority, and it is not possible for this
Court to hold that under that section read
with Section 41 of the U.P Consolidation of
Holdings Act a power to review its own
decision is conferred upon all Deputy
Directors of Consolidation."

37. Another Division Bench of
this Court considered the same question in
the case of Ram Pyare v. Deputy Director
of Consolidation,. 1973 RD 79 The Court
observed:?

"In our opinion Section 41 of the
Act only makes applicable the provisions of
Chapters IX and X of the U.P Land
Revenue Act to proceedings initiated under
the U.P Consolidation of Holdings Act,
including proceedings of appeal and
revision.
Once
the
proceedings
are
initiated under this Act, the procedure laid
down in Chapters IX and X shall apply.
Section 41, however, does not authorise the
initiation of proceedings not contemplated
or authorised by the Act. The power of
review has to be specifically conferred and
unless there is a provision in the Act
permitting initiation of such proceedings
the question of applicability of procedure
laid down in Chapters IX and X of the U.P
Land Revenue Act does not arise. In the
case of Qadam Singh v. Ganga Saran, 1960
RD 347 this Court had taken the view that
no review lies. We are also of the same
view."

39. On the discussions in the
foregoing paragraphs it is our considered
view
that
it
is
not
open
for
the
consolidation authorities to review/recall
their final orders passed in proceedings
under the U.P Consolidation of Holdings
Act in exercise of inherent powers. Thus,
the question formulated earlier is answered
in the negative. The writ petition will be
placed before the appropriate Bench for
disposal in the light of this judgment."

16. A coordinate bench of this Court
in Indo Gulf (supra) was dealing with the
power of review, if any vested with the
Labour Court/ Industrial Tribunal. Vide
paragraph 19 the Court held thus:

"19. There is no dispute that
under the Act the prescribed authority has
no power to review its order which means
substantive review on merits. Thus, in the
absence of any statutory power to review,
the prescribed authority has no authority of
law to substantively review any of its order
passed earlier in the proceedings. In this
view of the matter the prescribed authority
has no jurisdiction to touch its earlier
orders on merits."

17. In the above decision, the Court
further proceeded to distinguish the subject
of review and recall and in this regard
referred two judgments of Supreme Court
in the case of Grindlays Bank Ltd. v.
Central Industrial Tribunal, AIR 1981
SC 606 and Kapra Mazdoor Ekta Union
v. Birla Cotton Spinning and Weaving
Mills Ltd., 2005 (13) SCC 777 in its
2 All. Ulfat & Ors. Vs. Additional Commissioner (Judicial), Moradabad & Ors.
329
paragraph nos. 23 and 24 which run as
under:

"23. In Grindlays Bank Ltd. it was
held that the application for setting aside ex
parte order was maintainable in spite of the
fact that there was no provision to that effect
under the Act. The Supreme Court further
held that a Tribunal under the Industrial
Disputes Act, 1947 is competent to set aside
to its ex parte award if it is satisfied that the
party
aggrieved
was
prevented
from
appearing by sufficient cause. Such setting
aside of ex parte award would be in nature of
procedural review and not a review on
merits. The Tribunal despite becoming
functus officio after the pronouncement of
award can entertain such an application and
they have ancillary or incidental powers to
consider recall of an award if ex parte.

24. In Kapra Mazdoor Ekta Union
the Three Judges of the Supreme Court
considered the distinction between the review
and the recall applications and held though
the Act do not grant any power of review
either expressly or by necessary implication
but the procedural power belongs to a
different category and if the party is able to
establish that the procedure followed by the
forum is vitiated and therefore, the order
requires to the recalled it has ample power to
do so."

18. Thus, the coordinate bench in its
ultimate
view
held
that
power
of
substantive review is to be exercised by any
court or Tribunal or authority if such a
power is specifically conferred upon it
under the relevant statute but the power of
procedural review which can be held to be
a recall in a sense, could be exercised. Vide
para 25 the Court has held thus:

"25. In view of the above
discussion, it is crystal clear that the
power of substantive review is not
exercisable by any court, tribunal or
authority unless the same is specifically
conferred upon it under the relevant
statute whereas the power of procedural
review is inherent in every court tribunal
or authority and could be exercised even
if no such power is given to them under
the Act but for the exercise of the same
the party applying has to establish that he
was not served with the notice or that he
was prevent for sufficient good reason
from attending the proceedings or that
the procedure followed by the forum
stood vitiated as it was violative of the
principles of natural justice."

19. In the present case, the Court
while passing the order of review dated
04.01.2011 does not refer to any procedural
flaw that occurred in passing the earlier
order dated 13.03.2018 so as to enable the
State respondents to maintain a review
application. Instead I find that the Court
substantively reviewed its order on merit
which was certainly not available to it.

20. Here I would like to mention that
after the order of review was passed and
the lower court records were summoned by
the Additional Commissioner (Judicial)
under his order dated 04.01.2011, he ought
to have issued notices to the respondents to
contest the matter but the order dated
04.01.2011 is absolutely silent on this
aspect and therefore, the consequential
order also becomes bad for this very
reason.

21. Coming to the other aspect
advanced regarding action under Section
198(4) to be barred by time, in the case of
Shakuntla
(supra)
this
Court
has
extensively dealt with Section 198(6) for
the purpose of limitation and relying upon
330 INDIAN LAW REPORTS ALLAHABAD SERIES
an earlier judgment of Supreme Court vide
paragraph nos. 21 & 22 and has held thus:

"21. The last question is to be
considered
whether
no
limitation
is
applicable where the allegations of fraud
exists. I have already held in foregoing
paras that the allegations of fraud were not
existent. However, even if the allegations of
fraud are existent the question to be
considered is whether any limitation period
is applicable or not. The Hon'ble Supreme
Court considered the said question 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
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
appellant-State
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."

22. Thus even the Supreme Court
has held that even in the cases of fraud the
action should be taken within a reasonable
2 All. Ulfat & Ors. Vs. Additional Commissioner (Judicial), Moradabad & Ors.
331
time. In the present case, the action has
been taken after a period of 12 years which
cannot be termed as reasonable time and
thus I hold that even in the cases of fraud
action has to be taken within the period of
limitation. Thus, I summarize the findings
in response to the questions framed 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."

22. Again in recent judgment of
Babulal (supra) relying upon Chhidda and
others v. State of U.P. and others; 2019 0
Supreme (All) 1085, the Court considered
various aspects of the matter in relation to
the power of Collector under Section
198(4) of U.P.Z.A. & L.R. Act, 1950 and
the limitations prescribed under Section
198(6) of U.P.Z.A. &L.R. Act, 1950, and
vide paragraph 15 has held thus:

"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
332 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
appellant-State
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."

 (emphasis added)"

23. In such above view of the matter,
therefore, the order of review passed by the
Additional Commissioner (Judicial) dated
04.01.2011 is unsustainable in law and
therefore, deserves to be set aside. Once I
proceed to set aside the order of review
dated 04.01.2011, the consequential order
to it dated 18.04.2012 could also needed to
be set aside. If these two orders are set
aside as I propose to do in this petition, I
need not go to other questions with regard
to validity of lease etc. as the same in my
considered view cannot be permitted to be
reopened after a lapse of so many years.
Thus the order passed by the Additional
Commissioner (Judicial) dated 04.01.2011
allowing the review application of the State
respondents and the consequential order
dated 18.04.2012 are hereby set aside.

24. In view of the above, this petition
stands allowed. Orders dated 04.01.2011
and 18.04.2012 passed by respondent nos.
1 & 2 respectively are hereby set aside.
----------
(2023) 2 ILRA 332
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-C No. 66973 of 2012

Arshad & Anr. ...Petitioners
Versus
A.C. (Admin.), Saharanpur & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri M.A. Khan