Dismissed

Abhiraj Singh v. Addl. Commissioner Agra and Others

Allahabad HC19 Dec 2022WRIC/19465/1998

Case brief

AI extract

What is this about?

The Single Judge dismissed a petition challenging the rejection of a revision petition. The court held that summoning records is not mandatory before deciding maintainability and that no revision lay because the original suit was not finally decided.

What did the court decide?

The writ petition is dismissed with costs. The Additional S.D.O. is directed to proceed with the suit after affording opportunities to parties.

Abhiraj Singh Vs Addl. Commissioner Agra and Others — Land Acquisition | Allahabad HC (2022)

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AFR Reserved on 10.10.2022. Delivered on 19.12.2022.

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Court No. - 30

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Case :- WRIT - C No. - 19465 of 1998

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Petitioner :- Abhiraj Singh Respondent :- Addl. Commissioner Agra And Others Counsel for Petitioner :- Prakash Chandra Counsel for Respondent :- S.C.,Pushependra Singh Yadav,Rajeev Sharma,V.K.Singh

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Hon'ble Umesh Chandra Sharma,J.

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1. This petition has been instituted to quash the order passed by SubDivisional Officer dated 29.12.1997 and order dated 5.5.1998 passed by Additional Commissioner.

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2. In brief, facts of the case are that respondent no. 5 and 6 filed a suit under Section 229 -B of U.P. Z.A. & L.R. Act, which was dismissed in default on 4.8.1993. It was again dismissed in default on 7.11.1994. (Annexure No. 1 & 2 to the writ petition). Thereafter, respondent nos. 5 & 6 moved the restoration application which was rejected by Sub-Divisional Officer vide order dated 25.6.1996 (Annexure No. 3 to the writ petition). Later on they filed a review petition for recalling the order dated 25.6.1996 which was allowed by order dated 29.12.1997 (Annexure No. 4 to the writ petition) without serving notice to the petitioner.

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3. Against the aforesaid order, the petitioner filed a revision before respondent no.1. Generally revisions are being admitted by the Commissioner and hence only on stay application case was heard on 20.1.1998. Neither it was heard on the point of maintainability nor on the merit. Records of the courts below were also not summoned and records were not available before respondent no.1 when the order rejecting the revision was passed. In fact 22.1.1998 was fixed for orders on stay application but to the utter surprise, the revision was denied as not maintainable on 31.1.1998 (Annexure No. 5 to the writ petition). As the aforesaid order was exparte, the petitioner filed restoration against the

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order dated 31.1.1998 which was rejected on 5.5.1998 (Annexure No. 6 to the writ petition).

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4. Further proceedings are going on in the court and hence it is desirable in the interest of justice to stay the operation of the order dated 31.1.1998, passed by respondent no. 1.

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5. Heard learned counsel for the parties and perused the record.

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6. Learned counsel for the petitioner has relied on the judicial precedent Gunai Vs. Gaon Sabha and Others 1990 RD (J) Page 30 , wherein it has been held that “ whenever a revision under Section 333 of the U.P. Z.A. & L.R. Act, is moved before the Commissioner, Collector or Board of Revenue, before taking any decision on its maintainability, record of the lower court must be summoned.

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Section 333 is as under:

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Power of Board to Call for Cases - the Board may call for the record of any suit or proceeding by any subordinate court in which no appeal lies or where an appeal lies but has not been preferred and if such subordinate court appears-

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(a) to have exercised a jurisdiction not vested in it in law, or

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(b) to have failed to exercise a jurisdiction so vested, or

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(c) to have acted in the exercise of jurisdiction illegally or with material irregularity, the Board may pass such order in the case as it thinks fit.”

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7. In para 5 of the judgment, the learned Single Judge has held that “ it appears from the perusal of Section 333 that the word 'may' is (if desired) is used for the Collector to exercise his judicial power and to call for files of the lower court. This question has to be considered as to whether word 'may' in Section 333 is mandatory or directory in nature. If the word 'may' is used in relation to an officer or for Court for respect then it is imperative rather than mandatory. In this regard the interpretation given in the case of Assistant Commissioner Vs. Prayag Das Agarwal, AIR 1981 SC 1263 , is important.

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8. In para 7 of the judgment, the learned Single Judge has held that intention of the legislature is clear from the interpretation of the above word 'may' that when a revision is presented before the Collector or Board of Revenue, he must call for record/files of the lower court or subordinate court before deciding it as to whether it should be admitted or not.

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9. The Commissioner has rejected the revision without considering the provisions of Section 333 as mandatory and without calling for the records of the subordinate courts. Therefore, the prayer has been made to allow the petition and direct the Commissioner to summon the lower court record and pass the order afresh.

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10. In Para 9, the learned Single Judge has observed that-

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“it is clear from the provision of S. 332 (A) that the word 'may' has been used in relation to the revision presented before the Commissioner or the Assistant Collector. But there also the meaning of the word 'may' is mandatory and not directory. This is another thing that it would be appropriate to call for the subordinate courts file only after accepting primafacies for the decision. But if there is any such order as an exception in which after listening to it, it seems necessary to call for the file of the subordinate court, then there should be no hesitation in calling for it.”

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11. The facts and circumstances of the cited case and the case in hand are quite different. The only similarity is that in both the cases revision was preferred.

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12. In the cited case, the petitioner was served a notice u/s 122 B of the U.P. Z.A. & L.R. Act for illegal occupation of the Gram Sabha land and an order of his eviction, payment for damages and execution expenditure was passed by Tehsildar, against which he moved revision before the Collector and the Collector Azamgarh, without summoning the Lower Courts records and without assigning any reason dismissed the revision. In this regard para 8 of the judgment is noted hereunder:

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'Apart from this, from the prima facie observation of the impugned order dated 27.12.1990, it appears that there is no clarity in that order. In that case the petitioner

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was also claiming his rights under Section 122 B (4-F) thus a legal right was sincerely involved in it.

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13. Contrary to the above in this case due to misconception that the restoration application is for the restoration of the rejected restoration, the restoration application was rejected by S.D.O. on 25.6.1996. Later on after knowing that mistake apparent on the face of record has been committed by him and the restoration was for the restoration of original suit, he cancelled the order on 29.12.1991 against which the petitioner moved revision no. 106 of 98 under Section 333 which was rejected with comments on 31.01.1998. Later on the petitioner moved restoration application no 106 of 1997-98 u/s 333A which was also rejected alleging that the revision (of the petitioner) was preferred against the interlocutory order hence it was not maintainable and it was rightly rejected.

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14. Now the petitioner has come to this Court and has taken same ground that without summoning the lower court's record a revision can not be decided. It can not be decided even on the point of admission and maintainability.

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15. The petitioner has not attached all the relevant papers but has filed only the copies of the orders from which the facts of the case which appear before this Court are that respondent nos. 5 & 6 filed a suit under Section 229B of the U.P. Z.A. & L.R. Act No. 122/1517/1993 which was dismissed in default on 4.8.1993 and it was again dismissed in default on 7.11.1994. The respondents-plaintiffs moved restoration application No. 6/1995 which was rejected by the lower Court on 25.6.1996 that the case u/s 122B has been dismissed and one restoration has also been dismissed earlier. Though after dismissal of the case on 7.11.1994 the restoration application was moved on 21.11.1994 alongwith the application under Section 5 of Limitation Act. If it was so, and the restoration has been moved just after 14 days, there was no need to pray to condone the delay under Section 5 of the Limitation (provided the dates mentioned in the order are correct and true). However, the restoration was rejected on the ground that it was not a restoration application to restore the original case

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but it is a restoration of restoration. This misconception was created by the petitioner in the mind of the Court while the facts were not so.

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16. The S.D.O. Aliganj, on 29.12.1997 knowing that a mistake has been committed, recalled the order dated 25.6.1996 and allowed the restoration application dated 8.7.1996 and fixed further date for disposal. He found that he was misled. Virtually against the order of dismissal on 4.8.1993, a restoration application was moved and which was allowed on 14.9.1994 and the original suit was again dismissed on 7.11.1994. He found that the order dated 25.6.1996 was passed in misconception that even after the rejection of a restoration application, an application for restoration of the original suit is being moved whereas only one restoration application was pending to recall the order of dismissal dated 7.11.1994. Conceding the own mistake, the Court itself recalled the order dated 25.6.1996 and allowed the restoration application dated 8.7.1996 and fixed the date for further proceeding.

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17. This Court is of the view that correcting/amending the mistake committed by the Court itself is an interlocutory order and it can be corrected at any time either suo moto or on the oral or in writing application of the either party and against such order no revision would lie.

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18. In Raghunandan Vs. Narain Das Balkrishna Das, 1950 ALJ 220 it is held that neither a mistake nor an irregular exercise of jurisdiction gives a ground for interference.

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19. In Beni Prasad Tiwari Vs. Damodar Prasad Tiwari, 1979 AWC (Rev) 37 it is held that mistake of fact, an omission by trial court to record proper and detailed reason is not a ground for revision.

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20. By this order no injustice had been caused to the petitioner. The effect of the order of S.D.O. or the Commissioner was only this that the original suit would be disposed of on merit. This is also the basic purpose of justice and the judicial system. It appears that the petitioner does not want disposal of original suit on merit, so he preferred revision and

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thereafter restoration application and caused more delay by filing this writ petition. If the impugned orders remain intact, no prejudice is caused to the petitioner. For maintainability of a revision, there must be a decision of any suit or proceeding. Here no suit or proceeding has been finally decided. The suit under Section 229 B is still pending and even by the impugned order it was not decided. Therefore, the forum to prefer revision was not available to the petitioner. In the cited case the matter under Section 122B and right of the petitioner under Section 122B (4-F) was finally and completely adjudicated by the S.D.O. Hence, the revision was maintainable which should have been decided on merit but in this case it is not so. The petitioner has levelled the charges against the revisional Court but to establish the same he has not filed the certified copies of the ordersheet to establish that the date was fixed only for order on stay application. Considering the facts of the case this Court is also in conformity with the view expressed by Additional Commissioner expressed in his order on 31.1.1998 that the petitioner wants to keep the matter pending for an indefinite period.

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21. Facts of this case and the cited case are not similar. Hence there was no occasion to look into the legality and propriety of the order of the lower Court and there was no need to summon the records of the lower Court only on this ground that revision has been preferred. By summoning the records the proceeding of the Lower Court are discontinued and the length of the case becomes too longer. Thus this petition is devoid of the merit and is dismissed with cost.

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22. Let the copy of the judgment be sent to the District Magistrate, Etah to direct Additional S.D.O. Ist Aliganj, to proceed with the case No. 122/15/71/1993 under Section 122 B of the U.P. Z.A. & L.R. Act after affording the opportunity to both the parties at the earliest as the matter has already become so old.

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Order Date :- 19.12.2022 S.Verma

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{Umesh Chandra Sharma,J.}

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Digitally signed by SANDEEP KUMAR VERMA Date: 2022.12.20 16:48:37 IST Reason: Location: High Court of Judicature at Allahabad

Abhiraj Singh v. Addl. Commissioner Agra and Others

Case brief

What is this about?

What did the court decide?

Abhiraj Singh v. Addl. Commissioner Agra and Others

Case brief

What is this about?

What did the court decide?

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