The requirement for issuing a show cause notice before lease cancellation under Section 198(5) of the U.P. Zamindari Abolition & Land Reforms Act is mandatory and non-compliance nullifies the order.

JUDGMENT :

IRSHAD ALI, J.

1. Heard Sri R.P. Shukla, learned counsel for petitioner and learned Additional CSC for the respondent-State.

2. Notice was issued to respondent - gaon sabha but no one appears and notice has been found deemed to be sufficient.

3. By means of present writ petition, the petitioner has assailed the order dated 27.04.2001 passed by Collector, Sitapur in case No.34 under Section 198 (4) UPZA & LR Act, 1950.

3.1 Respondent Nos.2 to 9 instituted case No.34; Hiralal vs. Smt. Maya Devi and other before the Collector, Sitapur under Section 198 (4) of 1950 Act for cancelling the lease granted in favour of the petitioner in respect of gata No.293 area 1.60 dismal situated in village Gyan sagar, H/o Mishrikh Rural, Pargana and Tehsil Mishrikh District Sitapur.

4. The Collector, Sitapur called for the report from the District Government Counsel (DGC) Revenue, who submitted his report dated 18.04.2001 mentioning therein that the case should be filed under Section 202 of the Act, 1950 and the suit under Section 198 (4) of the Act, 1950 was not maintainable.

5. The Collector proceeded in ex parte manner under Section 198 (4) of the Act without issuing notices to the petitioner. The patta / lease was granted in favour of Late Kalyan, father of the petitioner on 09.12.1960. The petitioner is only issue of Late Kalyan, therefore, she succeeded on the land and her name was recorded in the revenue records. Late Kalyan has paid land revenue in his lifetime and after his death, the petitioner being successor / heir / legal representative is entitled to be heard before passing the order under Section 198 (4) of the Act, 1950. The provisions of Section 198 (4) of the Act, 1950 are mandatory and show cause notice is necessary to be served in the instant case.

6. The then Gram Pradhan Sri Putan Singh instituted a suit No.2/3/4/5 under Section 202 of the Act of 1950 for eviction of the petitioner from the land in dispute before the Sub Divisional Officer / Deputy Collector, Mishrikh, District Sitapur. The notices were issued to the petitioner by the SDO and the petitioner appeared and filed written statement. The parties adduced their evidence and the suit was rejected vide judgment and order dated 12.05.1988 by the SDO vide order dated 12.05.1988.

7. Submission of learned counsel for the petitioner is that the Gram Pradhan or any person of the village has not assailed the order dated 12.05.1988 before any competent authority. Consequently, the order has become final and the issue cannot be re-agitated that too after lapse of more than 40 years. Hence, the proceedings under Section 198 (4) of the Act of 1950 were not maintainable.

8. He next submitted that the lease was granted to petitioner's father Late Kalyan was tested in the above said suit instituted under Section 202 of the Act of 1950 and it was found that he was quite eligible to get the lease. The question of eligibility cannot be tested after the lapse of more than 40 years.

9. He next submitted that the proceedings under Section 202 of the Act are regular proceedings, hence it has binding effect upon the proceedings instituted under Section 198(4) of the Act of 1950 and the impugned order dated 27.04.2001 passed by the Collector is illegal.

10. He next submitted that the gram sabha of the State of U.P. has filed no counter affidavit rebutting the averments made in the writ petition. The principle of non traverse shall be applicable and the averments made in the writ petition shall be deemed to be true.

11. His last submission is that the application beyond the limit