Allahabad High Court
Smt. Fatma Kubra vs Addl. Commissioner Administration ... on 21 April, 2022
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 20 Case :- WRIT - C No. - 2095 of 2022 Petitioner :- Smt. Fatma Kubra Respondent :- Addl. Commissioner Administration Ayodhya Mandal Ayodhya And Others Counsel for Petitioner :- Amitesh Pratap Singh, Meera Jain Counsel for Respondent :- C.S.C.,Aftab Ahmad, Mohan Singh, Yogesh Singh Hon'ble Jaspreet Singh,J.
1. Heard Shri Amitesh Pratap Singh, learned counsel for the petitioner, learned standing counsel for the State-respondents, Shri Mohan Singh, learned counsel for the respondent No.3, Shri Aftab Ahmad, learned counsel for the respondent No.11 and Shri Yogesh Singh, learned counsel for the respondent No.5.
2. Learned counsel for the petitioner has filed a supplementary affidavit after serving a copy thereof on the learned counsel for the State-respondents as well as the private-respondents, which is taken on record.
3. With the consent of the learned counsel for the parties, the matter is being disposed of at the admission stage itself.
4. Under challenge is the order dated 02.03.2022 passed by the Additional Commissioner, Administration, Ayodhya Division, Ayodhya, whereby the revision of the petitioner has been dismissed and the order dated 02.06.2010 passed by the Sub-Divisional Officer, Jalalpur, District Ambedkar Nagar has been upheld.
5. In order to appreciate the controversy involved, certain facts giving rise to the instant petition are being noticed hereinafter, first.
6. The petitioner Smt. Fatma Kubra initially moved an application before the Sub-Divisional Officer, under Section 143 of the U.P. Z.A. & L.R. Act, wherein it was stated that the petitioner has a house constructed over Gata No.1210(M) measuring 0.006 hectares, situate at Wajidpur Town, Pargana Surhurpur, Tehsil Jalalpur, District Amebedkar Nagar, apart from the house, the petitioner also has a shop constructed over the land wherein she is residing along with her family. It was prayed that the Gata No.1210(M) has been divided amongst the family members and she has received her share and on her share, she has raised construction. Since, the land is being used for purposes other than agriculture, accordingly, the land may be declared as 'abadi'. The said application has been brought on record as Annexure No.3.
7. Initially on the application moved by the petitioner, a report was called for which was filed on 30.01.2004. Upon an inspection made by Naib Tehsildar, it was found that Plot No.1210(M) was recorded in the revenue records in the name of Mehandi Hasan, Murtaza Husain, Raza Husain and Abdul Hasan. Upon an inspection, it was found that the aforesaid Plot No.1210(M) had constructions and the tenure holders had raised residential construction, which was in the shape of 'abadi' and it was also proposed in the report that the land can be recorded under the Category 6(2) as 'abadi'.
8. Considering the aforesaid report, the Sub-Divisional Officer by means of the order dated 31.03.2006 held that Gata No.1210(M) measuring 0.003 hectares which is recorded in the name of Mehandi Hasan and others and is in the shape of an 'abadi' house, the same may be placed in Category 6(2) as 'abadi' after deleting the names of the other co-tenure holders.
9. This order dated 31.03.2006 became the subject matter of controversy inasmuch as Mohasin Raza, Kalbe Husain, Murtaza Husain, Zafar Husain and Dawar Husain filed a revision against the order dated 31.03.2006 whereas simultaneously Abdul Hasan, the respondent No.5 moved an application for recall of the order dated 31.03.2006. The memo of revision preferred by the some of the tenure holders as mentioned above has been brought on record as Annexure No.7 while the application for recall moved by the respondent No.5 has been brought on record as Annexure No.8. Thus, it would be seen against the order dated 31.03.2006 two proceedings were initiated, one for recall by the respondent No.5 and the other was a revision preferred by the other tenure holders.
10. During pendency of the revision preferred, by few of the tenure holders, the application for recall was considered and heard by the Sub-Divisional Officer concerned and the said order dated 31.03.2006 was set aside by means of the order dated 02.06.2010. While passing of the order dated 02.06.2010, the Sub-Divisional Officer passed an order that the names of the co-tenure holders be recorded and it be declared that the land in question is being used for purposes other than the agriculture. In view of the order passed on 02.06.2010, the revision which was preferred by some of the tenure-holders also came to be dismissed by means of the order dated 14.02.2022 on the ground that since the order dated 31.03.2006 already stands recalled, therefore, the revision had been rendered infructuous. The order dated 14.02.2022 dismissing the revision No.962/2008-09 preferred by some of the tenure-holders has been brought on record along with the supplementary affidavit filed by the petitioner today.
11. Being aggrieved against the order dated 02.06.2010, the petitioner preferred a revision which was dismissed by means of the order dated 02.03.2022. thus, these two orders dated 02.06.2010 and 02.03.2022 are under challenged before this Court.
12. The submission of the learned counsel for the petitioner is that once the order dated 31.03.2006 had been passed by the Sub-Divisional Officer against which some of the tenure-holders had filed a revision bearing No.962/2008-09 and in such circumstances, the Sub-Divisional Officer concerned did not have right to recall the order and as such the order dated 02.06.2010 was without jurisdiction.
13. It is further urged that the revisional Court has also committed manifest error in failing to consider this aspect of the matter and by rejecting. Thus, the issue involved requires indulgence of this Court.
14. Learned counsel for the private-respondents Shri Aftab Ahmad and Shri Yogesh Singh have raised an issue that the instant petition is not maintainable at the behest of the petitioner. It is submitted by Shri Aftab Ahmad that the petitioner, who is not recorded tenure-holder was not entitled to move an application under Section 143 of the U.P.Z.A. & L.R. Act inasmuch as such application seeking declaration in terms of Section 143 of the U.P.Z.A. & L.R. Act can only be moved by recorded tenure-holder. It is further urged that in exercise of powers under Section 143 of the U.P.Z.A. & L.R. Act, the Sub-Divisional Officer concerned can only give a declaration after complying with the necessary formalities and compliance of Rules that the land of which a declaration is sought is being used for purposes other than agriculture. It is further urged that in terms of Section 143 of the U.P.Z.A. & L.R. Act, the consequences of an order passed under Section 143 of the U.P.Z.A. & L.R. Act has been provided but nevertheless it cannot give a right to the Sub-Divisional Officer to delete the names of the tenure-holders or to change the land use in such a manner that it can be recorded as an 'abadi' land in Category 6(2). It is thus, urged that the initiation of proceedings at the behest of the petitioner was completely without jurisdiction including the order passed by the Sub-Divisional Officer dated 31.03.2006. Moreover, the said recorded tenure-holders were not impleaded and as soon as they became aware, an application for recall came to be filed. Once set of tenure-holders preferred revision which remained pending before the revisional authority, however, during pendency of the said revision, since, the order dated 31.03.2006 was recalled, there was no requirement for any further adjudication in the revision which came to be dismissed as having become infructuous by means of the order dated 14.02.2022.
15. Learned counsel, for the other set of tenure-holders, Shri Yogesh Singh has further taken the arguments forward on behalf of the private-respondents to submit that the petitioner has also not approached the Court with clean hands inasmuch as in the application seeking declaration under Section 143 of the U.P.Z.A. & L.R. Act she has stated in Paragraph-5 that she is residing in the said house and she has received the area in terms of settlement and has raised constructions. It is urged that while filing the writ petition, the petitioner became aware of the fact that she was not entitled to move an application in the first place as she was not recorded tenure-holder. She has sought to be improved her case as in paragraph 5 of the writ petition, it has been stated that the husband of the petitioner is of unsound mind, therefore, in the capacity of legal guardian of her husband, the petitioner had moved an application under Section 143 of the U.P.Z.A. & L.R. Act.
16. It is further urged that insofar as the family settlement/agreement is concerned, the same has also not been brought on record and it was not open for the petitioner to have instituted the petition before the Sub-Divisional Officer and now once the order dated 02.06.2010 has been passed, which has been duly implemented and actually restores the position by declaring the land of Gata No.1210(M) situate in Gram Wajidpur as being used for purposes other than agriculture including incorporating the names of the remaining tenure-holders. Thus, substantial justice has been done and even what has been sought by the petitioner seeking declaration has been allowed, consequently, the petitioner does not have a right to assail the order in the writ petition.
17. The Court has considered the rival submissions and also perused the material on record.
18. The emphasis laid by the learned counsel for the petitioner while pressing the petition is that against the order dated 31.03.2006, once a revision was pending before the revisional authority, the Sub-Divisional Officer did not have powers to recall the order dated 31.03.2006. However, the aforesaid submissions does not impress the Court for the following reason contained herein.
19. At the very outset, it will be relevant to notice that an application under Section 143 of the U.P.Z.A. & L.R. Act can only be filed by the recorded tenure-holder. For ready reference, Section 143 of the U.P.Z.A. & L.R. Act is being reproduced hereinafter:-
"143. Use of holding for industrial or residential purposes. - [(1) Where a [bhumidhar with transferable rights] uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, the Assistant Collector-in-charge of the sub-division may, suo motu or on an application, after making such enquiry as may be prescribed, make a declaration to that effect.
(1-A) Where a declaration under sub-section (1) has to be made in respect of a part of the holding the Assistant Collector-in-charge of the sub-divisions may in the manner prescribed demarcate such part for the purposes of such declaration.] (2) Upon the grant of the declaration mentioned in sub-section (1) the provisions of this chapter (other than this section) shall cease to apply to the [bhumidhar with transferable rights] with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.
[(3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Government, on the security of any land held by such bhumidhar, the provisions of this Chapter (other than this section) shall cease to apply to such bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.]"
20. From the perusal of the aforesaid, it would be clear that it is only a recorded bhumidhar, who can make the said application. Moreover, from the reading of sub-section (2) of Section 143 of the U.P.Z.A. & L.R. Act it indicates the consequence of the declaration as made in sub-section (1) is that the provisions of the Chapter-VIII of the U.P.Z.A. & L.R. Act shall cease to apply to the bhumidhar with transferable rights and in respect to such land and he shall be governed in the matter of devolution of interest in the land by personal law to which he is subjected to.
21. Thus, it is clear that apparently the initiation of the provisions at the behest of the petitioner was incorrect. Moreover, she did not have a right to move an application in the first place and what is most strange that the Sub-Divisional Officer in its order dated 31.03.2006 directed that the names of the recorded tenure-holders to be deleted and the land be recorded as 'abadi' under Category 6(2). This kind of a direction in the order, in proceedings under Section 143 of the U.P.Z.A. & L.R. is not known in law. This exercise of jurisdiction by the Sub-Divisional Officer was patently erroneous and without jurisdiction.
22. It is not disputed by the learned counsel for the petitioner that while passing the order the other tenure-holders were not impleaded nor they were heard. This being the situation where the tenure-holders, who had been recorded in the revenue records suddenly find that their names have been deleted in proceedings under Section 143 of the U.P.Z.A. & L.R. definitely had a right to make an application for recall. One set of tenure-holders also filed a revision bearing No.962/2008-09. It is also not disputed by the learned counsel for the petitioner that during pendency of this revision, there was no interim order which prevented the Sub-Divisional Officer concerned to adjudicate the application for recall on merits.
23. It is only once the order dated 02.06.2010 was passed that the petitioner preferred a revision which finally came to be decided by means of the order dated 02.03.2022. In the aforesaid backdrop, it cannot be said that the order impugned dated 02.06.2010 was bad for want of jurisdiction. The revisional Court has also considered the issue appropriately and taking the overall view has maintained the order dated 02.06.2010. This exercise of jurisdiction by the revisional Court does not call for any interference.
24. Learned counsel for the petitioner could not point out the illegality in the orders especially when the order dated 02.06.2010 was in accordance with law having restored the names of the recorded tenure-holders and also directed that the land in question be recorded in appropriate column as being used for purposes other than agriculture.
25. Learned counsel for the petitioner could not give any explanation as to how in a proceeding under Section 143 of the U.P.Z.A. & L.R., could the Sub-Divisional Officer order deletion of the names of tenure-holders and direct the land in question be recorded as 'abadi'. Thus, this Court finds that the order passed by the Sub-Divisional Officer is legally unsustainable.
26. There is another aspect of this matter, which may be noticed that in case if the order dated 02.06.2010 is interfered with naturally it will have the effect of reviving the order dated 31.03.2006.
27. It is now well settled that under writ jurisdiction, the Court will not exercise its powers to interfere in an order and set it aside by an order, the ultimate effect of which would be to revive or give rise to another illegal order.
28. The Court is fortified in its view in light of the decision in the case of Wasim Raza Khan v. Board of Revenue, 2014 (123) RD 107, wherein it has been held as under:-
"14. In view of the aforesaid legal position, if the order dated 15.7.2013 is interfered with and quashed, another illegal order dated 30.4.2010 would revive. It is settled that if by quashing of an illegal order, another illegality revives in that eventuality, the Court should not interfere with such orders under the writ jurisdiction.
15. The view taken by me finds support from the judgments of the Apex Court in Gadde Venkateswara Rao Vs Government of Andhra Pradesh & Ors. AIR 1966 SC 828, Champalal Binani Vs. CIT, West Bengal AIR 1970 SC 645, Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar & Ors. AIR 1999 SC 3609, Mallikarjuna Mudhagal Nagappa & Ors. Vs. State of Karnataka & Ors. AIR 2000 SC 2976, Chandra Singh Vs State of Rajasthan, AIR 7 2003 SC 2889, S.D.S. Shipping Pvt. Ltd. Vs. Jay Container Services Co. Pvt. Ltd. & Ors. 2003 (4) Supreme 44, State of Uttaranchal & Anr. Vs. Ajit Singh Bhola & Anr. (2004) 6 SCC 800 and State of Orissa & Anr. Vs Mamata Mohanty, (2011) 3 SCC 436."
29. In Indrapal Singh v. The Deputy Director of Consolidation, Kheri and another, 2019 (37) LCD 1233, a Coordinate Bench of this Court held as under:-
"21. The jurisdiction vested in this Court under Articles 226 and 227 of the Constitution of India is to advance justice and not to thwart it. The purpose and object to exercise such a prerogative and discretionary jurisdiction is to ensure that no injustice is caused. Hon'ble Supreme Court in the case of Roshan Deen vs. Preeti Lal, reported in [(2002) 1 SCC 100] has categorically held that "If justice becomes the byproduct of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law".
22. Para 12 of the judgment in the case of Roshan Deen (supra) is relevant to be quoted herein, which is extracted hereunder:
"We are greatly disturbed by the insensitivity reflected in the impugned judgment rendered by the learned single Judge in a case where judicial mind would be tempted to utilize all possible legal measures to impart justice to a man mutilated so outrageously by his cruel destiny. The High Court non-suited him in exercise of a supervisory and extraordinary jurisdiction envisaged under Article 227 of the Constitution. Time and again this Court has reminded that the power conferred on the High Court under Article 226 and 227 of the Constitution is to advance justice and not to thwart it [vide State of U.P. v. District Judge, Unnao, (AIR 1984 SC 1401)]. The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law." (Emphasis supplied by the Court)"
30. Thus, in view of what has been discussed herein, this Court is completely satisfied that there is no error in either the order dated 02.06.2010 passed by the respondent No.2 which has been confirmed in revision vide order dated 02.03.2022 passed by the respondent No.1, which has been impugned in the instant petition. Learned counsel for the petitioner also could not satisfy as to how the initiation of the proceedings at the behest of the petitioner, who is not a recorded tenure-holder, could have been entertained and as to how and under what provisions, the Sub-Divisional Officer passed the order dated 31.03.2006.
31. Learned counsel for the petitioner has relied upon a decision of the Apex Court in Ram Prakash Agarwal and another v. Gopi Krishan and others, 2013 (31) LCD 881, wherein relying upon Paragraph-16, it has been urged by the learned counsel for the petitioner that once the proceedings stood concluded by the Court of first instance an application for recall by third party was not maintainable. He has also relied upon a decision in the case of M/s. Ratna Sugar Mills Co. Ltd. v. State of U.P. & Ors., AIR 1966 Alld 34.
32. Insofar as the Ram Prakash Agarwal's case (supra) is concerned, the same has no applicability in the present facts and circumstances of the case inasmuch as in the present case, the application under Section 143 of the U.P.Z.A. & L.R. was preferred by the petitioner on incorrect facts. Even treating the application on its face value, the same could not have been entertained by the Sub Divisional Officer concerned as the petitioner was not recorded tenure-holder and even otherwise the order which has been passed behind the back of the person, who was recorded tenure-holder, who has a right to file an application for recall to set aside the injustice which was done by the order dated 31.03.2006.
33. For the aforesaid reasons, the decision of Ram Prakash Agarwal (supra) does not come to the rescue of the petitioner.
34. Moreover, in Rabindra Singh v. Financial Commissioner, Cooperation, Punjab and others, (2008) 7 SCC 663, the Apex Court held as under:-
"19. A defendant in a suit has more than one remedy as regards setting aside of an ex parte decree. He can file an application for setting aside the ex parte decree; file a suit stating that service of notice was fraudulently suppressed; prefer an appeal and file an application for review.
20. In Bhanu Kumar Jain v. Archana Kumar [(2005) 1 SCC 787] this Court held : (SCC p. 797, para 26) "26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation I appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true."
21. What matters for exercise of jurisdiction is the source of power and not the failure to mention the correct provisions of law. Even in the absence of any express provision having regard to the principles of natural justice in such a proceeding, the courts will have ample jurisdiction to set aside an ex parte decree, subject of course to the statutory interdict."
35. Thus, taking a holistic view, this Court finds that the Sub-Divisional Officer had erred in deleting the names of private-respondents/tenure holders and also to declare the land in question as 'abadi' vide order dated 31.03.2006. Moreover, in absence of any stay order passed in revision even if the Sub-Divisional Officer passed orders on merits on recall application, the same cannot be said to be faulty. Even otherwise by means of the order dated 02.06.2010 the declaration has been granted as sought by the petitioner and the deletion of names of other tenure-holders has also been rectified which is an outcome of sound exercise of jurisdiction by the Sub-Divisional Officer and this order dated 02.06.2010 has been affirmed in revision which requires no interfere.
36. In view of the aforesaid, the petition is completely devoid of merits and is accordingly dismissed. In the facts and circumstances, there shall be no order as to costs.
Order Date :- 21.04.2022 Rakesh/-