Research › Browse › Judgment

Allahabad High Court · body

1985 DIGILAW 1203 (ALL)

Adal Singh v. Board of Revenue

1985-12-18

B.L.YADAV

body1985
JUDGMENT B.L. Yadav, J. - This petition Under Article 226 of the Constitution of India is directed against the orders of the Board of Revenue dated 15.10.1982 and 26.04.1982. 2. The facts leading to the present petition are that Respondent No. 5 Anand Pal Singh filed a suit u/s 229-B/209 of the U.P. Zamindari Abolition and Land Reforms Act, (for short the Act) impleading the State of U.P. through the Collector and the Nagar Palika, Aligarh and the Petitioners as Defendants. The suit was contested by the Petitioners denying the plaint allegations and alleged that the Plaintiffs were neither bhumidhar not in possession. The suit was decreed and Defendants were directed to be ejected and damages of Rs. 200/- was to be paid. The Petitioners' appeal was allowed by the Additional Commissioner and second appeal was filed by Respondent No. 5 before the Board of Revenue impleading the Gaon babha. as one of the new Respondents, whereas Nagar Palika Aligarh, which was a party to the suit and in the First Appeal, was not impleaded in the Second Appeal. On behalf of the Petitioners an objection was raised that the appeal was not maintainable as the Nagar Palika, Aligarh has not been impleaded as a party which was party in the suit and the Gaon Sabha was the newly added party. Thereupon the counsel for the Respondent moved an application for impleadment of the Nagar Palika, Aligarh as one of the Respondents and it was alleged that by over-sight the Nagar Palika, Aligarh could not be impleaded as a party to the appeal. This application was allowed by the Board of Revenue by Order dated 06.03.1982 (Annexure-3 to the petition) and the Nagar Palika, Aligarh was ordered to be impleaded as a party to the appeal and Rs. 100/- was imposed as cost on the Respondent. The Petitioners preferred review application which was also dismissed. It is against these orders the present petition has been filed. 3. 100/- was imposed as cost on the Respondent. The Petitioners preferred review application which was also dismissed. It is against these orders the present petition has been filed. 3. Sri B.B. Paul appearing for the Petitioners urged that the provisions of Order 41 Rule 20 C0de of CPC were directory inasmuch it was discretion of the Court in case a party to the suit has not been impleaded in appeal, either to adjourn the hearing of the appeal or direct such person to be made Respondent or not to do so and this discretion must be exercised after great care and unless a bona fide mistake was proved, the discretion should not be allowed. In the instant case the Uaon Sabha was not a party to the suit but was imp leaded as a party in the appeal, whereas the Nagar Palika, Aligarh was a party to the suit and was deliberately omitted to be impleaded as a party in the Second Appeal. Hence there was no justification to allow the application of the Respondent to implead the Nagar Palika, Aligarh. He relied on Tula Ram Vs. Mangaloo and Others, AIR 1954 All 10 , Madart Gopal v. Nihal Chand ILR 1951 Pepsu 68 , Dipan Rai Vs. Kapil Deo Singh and Others , Hafiz Abdullah Vs. Alli and Another, AIR 1923 All 291 , Abrar Husain and Others Vs. Ahmad Raza and Others , Ch. Surat Singh dead) v. Manohar Lai. AIR I97l SC 240, V.PR.V. Chokalmgam Chetty v. Seethai Ache AIR 27 PC 252, Faman Lai v. shanti Lai. AIR 1961 All 78 Badri Narain v. East Indian Railway AIR 1927 PC 23 and Laghu Ram v. Ram Pratap AIR 1944 Lah. 76. It was further urged that in view of Order 4i Rule 20(2) the application for Impalement was made by the Respondent after the expiry of the period. 4. Sri G.N. Verma, learned Counsel for the Respondent urged that under Order 41 Rule 20 even though the provisions were that a party to the suit has not been imp leaded as a party to the appeal, the Court may adjourn the bearing to a future date and direct such person to be made a party. Even though the word ' may ' has been used into context as it has been used for the order to be passed by the Court. Even though the word ' may ' has been used into context as it has been used for the order to be passed by the Court. The word ' may ' here means "shall " and was mandatory. Hence in case an application was filed the Court was bound to allow that application and direct the person to be imp leaded as Respondent. As this order has already been passed and the ends of justice require that the order may be maintained as substantial justice has been done and no ground for interference has been made out. 5. In order to appreciate the respective arguments of the parties, the statutory provisions of Order 41 Rule 20 are set out below: Power to adjourn hearing and direct persons appearing interested to be made Respondents Where it appears to the Court at the hearing that any person who was a party to the suit in the court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a Respondent. No Respondent shall be added under this rule, after the expiry of the period of limitation for appeal unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit. From the aforesaid provision it is clear that the word ' may ' has been used for the Court when an application for impalement of a party is made in an appeal to implead a party which was left out. But it appears that the word ' may ' in this context means "shall" or "must". 6. In Re: Nichils v. Baker 50 L.J. Ch. 661, page 663, it was held as follows "May" can never mean must so long as the English language retains its meaning. But it gives power then it may be a question in what cases, when any authority or body has power given to it by the word ' may it become its duty to exercise that power. 7. 661, page 663, it was held as follows "May" can never mean must so long as the English language retains its meaning. But it gives power then it may be a question in what cases, when any authority or body has power given to it by the word ' may it become its duty to exercise that power. 7. In Julius v. Bishop of Oxford (1874) All.ER 43 page 47, it was held as follows: There may be something in the nature of thing empowered to be done, something in the object for which it has to be done, something in the conditions under which it has to be done, something in the title of person or persons for whose benefit the power is to be exercised which may couple the power with duty, and make it a duty of the person in whom the power is reposed to exercise the power when called upon to do so. It was further held where the power is deposited with a public officer for the purpose of being used for the benefit of persons specifically pointed out with regard to whom the definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised. In such situation the enabling words are considered as compulsory whenever the object of the power is to effectuate the legal right. 8. In Collector of Munghyr v. Kesho Prasad Goenka 1962 SC 1694, it was held as follows: The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision, which for instance, sets out consequences of means to observe requirement, but on the performance for which the requirement have been enacted, particularly in the context of other provisions of the Act and the scheme thereof. It would, inter alias depend on whether the requirement is necessitated on as a protection for the safeguard of the right of liberty of person or of property which the action might involve. 9. In State of Uttar Pradesh Vs. Jogendra Singh, AIR 1963 SC 1618 , it was held as follows: The word ' may ' generally does not mean" must " or " shall ". 9. In State of Uttar Pradesh Vs. Jogendra Singh, AIR 1963 SC 1618 , it was held as follows: The word ' may ' generally does not mean" must " or " shall ". But it is well settled that the word ' may ' is capable of meaning "' must " or "shall" in the light of the context. Where a discretion is conferred upon a public authority coupled with an obligation, the word ' may ' which denotes discrete n should be construed to mean" command". Sometimes the legislature used to make out deference to the high status of the authority on whom the power and the obligation are intended to be construed a must 10. In view of the aforesaid observations it is crystal clear that in the present case as the word ' may ' has been used Under Order 41 Rule 20(1) for the court to adjourn the hearing of the appeal and to direct such person to be made Respondents, hence as the word ' may ' has been used in reference to the court in connection with the exercise of the right of a citizen or the right of the Appellant involved in the land in dispute, the word ' may ' here means " shall " and " must "'. The word ' may ' being mandatory the Court was under an obligation to allow the application and to order for the impalement of the party which was sought to be imp leaded. Even though I am in respectful agreement with the principles of law laid down in the cases cited by the learned Counsel for the Petitioners, but those principles could not be relevant here, inasmuch as the application for impalement has been allowed after recording reasons by the Board of Revenue and Rs. 100/- has been imposed as cost as required by Order 40 Rule 20 (2 L.T)- Board of Revenue has given reasons for allowing the application for i npleudment in the first order and also in the second OP er passed on the revue w application. Under the facts and circumstances of the case it may be that the compel for the applicant in not imp leading the Nagar Palika, Aligarh, might not have been quite vigilant, but his mistake appears to be bona fide Hence the discretion has correctly been exercised by the Board of Revenue. Under the facts and circumstances of the case it may be that the compel for the applicant in not imp leading the Nagar Palika, Aligarh, might not have been quite vigilant, but his mistake appears to be bona fide Hence the discretion has correctly been exercised by the Board of Revenue. It appears that the complete justice has been done by the impugned orders 11. As regards the point that the application for impalement was filed after the limitation of appeal hence the Court must Lave recorded reasons and only in that event the application could have been allowed, I am of the view that as the reasons have been given by the Board of Revenue for allowing the application and Bs. 100/- has been imposed as cost, hence the provisions of Order 41 Rule 20(2) have been substantially complied with. 12. In view of the discussions made herein-above, the writ petition lacks .merit and. is accordingly dismissed, there shall be no order as to costs. The Board of Revenue is, however, directed to decide the appeal on merits as expeditiously as possible. Petition dismissed.