Uttarakhand High Court
WPMS/2464/2024 on 12 September, 2024
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2024:UHC:6618
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WPMS No. 2464 of 2024
Hon'ble Manoj Kumar Tiwari, J.
1. Mr. M.S. Bhandari, learned counsel for the petitioners.
2. Mr. Yogesh Tiwari, learned Standing Counsel for the State of Uttarakhand.
3. This petition under Article 227 of the Constitution of India has been filed by the petitioner challenging the order dated 19.04.2022 passed by Assistant Collector, 1st Class, Kichha, District Udham Singh Nagar in Revenue Case No. 22/01 of 2020-21.
4. By the said order, petitioner's application, filed under Order 1 Rule 10 CPC, for his impleadment in proceedings initiated against Poonam Kumari (respondent no. 3) under Section 167 of UP Zamidari Abolition and Land Reforms Act, 1950 (in short "UPZA&LR Act"), has been rejected on the ground that petitioner's name has not been recorded in the revenue record as tenure holder in respect of land in question.
5. From perusal of record, it is revealed that on the report of Tehsildar Kichha, proceedings under Section 167 of UPZA&LR Act were initiated against Poonam Kumari. Sections 166 & 167 of UPZA&LR Act are extracted below for ready reference:-
"166. Transfer made in contravention of this Chapter to be void:-
Every transfer made in contravention of the 2024:UHC:6618 provisions of this Act, shall be void.]
167. Consequence of void transfers (1) The following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely-
(a) the subject-matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances;
(b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances;
(c) the transferee may remove other moveable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.
(2) Where any land or other property has vested in the State Government under sub-section (1), it shall be lawful for the Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom. For the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary.]"
6. Petitioner moved an application, under Order 1 Rule 10 CPC, for his impleadment in the said proceedings with the contention that he has filed a suit for declaration under Section 229-B of UPZA&LR Act against Poonam Kumari (respondent no. 3) in respect of same land, which is pending, therefore, he is a necessary party to the proceedings under Section 167 of the said Act.
7. Learned trial court rejected petitioner's application on the ground that petitioner's name is not recorded in revenue record as tenure holder, therefore, he cannot be said to be a person interested in the matter.
2024:UHC:6618
8. Petitioner challenged the order dated 19.04.2022 passed by Assistant Collector 1st Class, in revision before the Commissioner, Kumaon Division. His revision petition has been dismissed by Additional Commissioner, Kumaon vide judgment dated 30.01.2024. Petitioner has challenged both these orders in this writ petition.
9. Learned State Counsel submits that petitioner is neither necessary nor proper party to the proceedings under Section 167 of UPZA&LR Act. He submits that petitioner has filed a collusive suit against Poonam Kumari with a view to protect the transfer made in her favour by a fictitious person, namely, Ravinder Singh S/o Narendra Singh, who claims title based on a bogus will. He further submits that the said transfer was made illegally after 24.01.1971, which is the cut-off-date fixed in U.P. Imposition of Ceiling on Land Holdings Act, 1960. He further submits that said transfer was made fraudulently to overcome the legal bar created by Ceiling Act, 1960 and the suit filed by petitioner under Section 229-B of UPZA&LR Act is also collusive. He further submits that both the learned courts below have rightly rejected the application for impleadment made by petitioner, as he is neither necessary nor proper party.
10. This Court finds substance in the submission made by learned State Counsel. For seeking impleadment under Order 1 Rule 10 CPC, the applicant has to prove that he is necessary or proper party. Hon'ble Supreme Court in the case of Vidur Impex & Traders (P) Ltd. v. Tosh Apartments (P) Ltd., (2012) 8 2024:UHC:6618 SCC 384 held as under:
"41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are:
41.1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.
41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.
41.3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 41.4. If a person is not found to be a proper or necessary party, the court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the court or the application is unduly delayed then the court will be fully justified in declining the prayer for impleadment."
11. In view of the law laid down by Hon'ble Supreme Court, petitioner cannot be said to be necessary or proper party. Thus, the order passed by Assistant Collector and judgment 2024:UHC:6618 rendered by Additional Commissioner do not suffer from any infirmity. Thus, any interference in the matter would be unwarranted.
12. Accordingly, the writ petition is dismissed.
(Manoj Kumar Tiwari, J.) 12.09.2024 Aswal NITI RAJ SINGH Digitally signed by NITI RAJ SINGH ASWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802a3a08b08d1 ASWAL 369512ea30f3, postalCode=263001, st=UTTARAKHAND, serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22DACF4F461 0C1FE58A58531726FBB0, cn=NITI RAJ SINGH ASWAL Date: 2024.09.13 09:58:05 +05'30' 2024:UHC:6618