Hon’ble S.U. Khan, J.—

First writ petition

Gaon sabha passed a resolution on 26.6.1983 proposing to allot different parts of gaon sabha plot in favour of petitioners who are 10 in numbers (separate portion to each petitioner). S.D.O. approved the allotment on 30.7.1983. Application for cancellation of pattas was filed on 21.6.1989 by respondents 1 and 2 Sheesh Pal and Kanwar Pal. The matter was registered as case No. 19 of 1988-89 on the file of Additional Collector (F & R) Ghaziabad under Section 198(4) of U.P.Z.A.L.R. Act. In the case an order was passed on 3.7.1990 directing that the case would be treated to be suo moto proceeding.

2. The land had been allotted by the Pradan in favour of his near relations i.e. father, son nephew grand son and real sister and brother in law. This fact was reported by the Tehsildar in his report dated 11.9.1989 according to which father of the Pradhan who was opposite party No. 3 in the case was also already having 4 bigha, 6 biswa land. Opposite party No. 4 was husband of first cousin of the Pradhan, opposite party No. 4 was Dhaivata(son in law) of the Pradhan, opposite party No. 7 was real sister, opposite party No. 8 was minor son of the Pradhan, opposite party No. 9 was nephew of the gram pradhan and opposite party No. 10 was minor nephew of the gram pradhan, opposite party No. 11 was wife of nephew of the pradhan. Except one allottee i.e. opposite party No. 6 all other allottees were very close relations of the gram pradhan and opposite party Nos. 4, 5 and 7 were also not residents of the village in question. In respect of opposite party No. 6 it was found that her husband Sri Chaman Singh had earlier been allotted 3 bigha 1 biswa gaon sabha land.

3. Ultimately, allotment was cancelled through order dated 22.5.1993. Against the said order revision No. 22 of 1992-93 was filed which was dismissed on 6.8.1993 by Additional Commissioner Meerut, Division Meerut. Against the said order second revision was filed before Board of Revenue Allahabad being revision No. 203 of 1992-93 which was dismissed by Board of Revenue on 11.3.1999, hence, the first writ petition.

4. In this writ petition on 12.7.1999 effect and operation of the impugned orders was directed to remain stayed if it had not already been implemented.

5. The only point argued by learned counsel for petitioners is that by virtue of Section 198(5) and (6) of U.P.Z.A.L.R. Act proceedings for cancellation of patta could not be initiated by issuing notice after 10.11.1987 as limitation is 5 years from the date of allotment/lease or upto 10.11.1987 whichever be latter. Board of revenue in five judge full bench reported in Virender Singh v. State of U.P., 1994 RD 540, held that if suo moto proceedings are taken for cancellation of patta limitation does not apply.

6. The question of limitation is drawing attention of this Court in writ petition No. 18238 of 1995.

7. In the instant case the pradhan who is custodian of gaon sabha property has himself usurped the property by distributing the same to his father son nephew etc. It is a classical case of the ‘fence eating the crop’ (a Hindi proverb). It was a fraud of highest order which was played by the pradhan and petitioners allottees. The allotment was not only irregular and illegal but also void and result of fraud of the highest degree. Section 198(4) deals with irregularity of the allotment, hence, the limitation will be relevant only when there is some irregularity in the allotment. However, if the allotment is utterly void and fraudulent then even formal proceedings under Section 198(4) are not required. In case of stark usurpation of gaon sabha property collector is entitled to take corrective measures. Proceedings may be justified under Section 33/39 of U.P. Land Revenue Act also. Under somewhat similar circumstances (expiry of period of assami lease) it was so held in Hari Ram v. Collector, Dist. Saharanpur/Additional Collector, 2004(2) RD 360. The power to evict in case of v