Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 1151 (ALL)

Sudhir Kumar Agrawal v. Shyam Babu

2014-04-09

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri V.N. Singh along with Sri S. K. Singh for the petitioners and Ms. Suman Jaiswal for the contesting respondent. 2. The writ petition has been filed against the orders of Sub-Divisional Officer dated 27.8.2004, Collector dated 21.7.2008 and Board of Revenue dated 20.1.2014. 3. Shyam Babu, respondent-1 moved an application before Sub-Divisional Officer for initiating the proceeding under Section 167 of UP Act No. 1 of 1951 (hereinafter referred to as the 'Act') on the allegations that the petitioners have purchased the property through sale deed dated 17.5.2000 of the area of 3.707 hectare. They had already possessed the property of the area of 1.338 hectare, as such, the land purchased by them exceeded to 5.068 hectare. The application was later on amended and it has been again alleged that the petitioner have purchased the land on plot no. 33 area 0.392 hectare on 2.7.2004 thus the subsequent sale deeds are hit by Section 154 (1) of the Act and prayer was made for resuming the property of the sale deeds covered in the subsequent sale deed and possession be taken over it. Later on Shyam Babu moved an application on 27.8.2004 that during pendency of the proceeding the petitioners be restrained from damaging, changing the nature of the property and selling the property in dispute. On this application the Sub-Divisional Officer by order dated 27.8.2004 passed an impugned order restraining the petitioners from damaging, changing the nature of the property and selling the property in dispute. Later on the Sub-Divisional Officer by order dated 24.5.2008 held that proceedings under Section 167 of the Act cannot be taken by him as exclusive jurisdiction has been provided to the Collector accordingly, he transferred the entire record to the Collector for passing suitable orders. Before the Collector an application was moved that the order dated 27.8.2004 passed by Sub-Divisional Officer be incorporated in the records. The Collector accordingly passed an order dated 21.7.2008 directing for giving effect to the order dated 27.8.2004 and ensure its enforcement. The petitioners challenged the aforesaid order before Board of Revenue in revision which has been dismissed by order dated 20.1.2014. Hence this writ petition has been filed. 4. The Collector accordingly passed an order dated 21.7.2008 directing for giving effect to the order dated 27.8.2004 and ensure its enforcement. The petitioners challenged the aforesaid order before Board of Revenue in revision which has been dismissed by order dated 20.1.2014. Hence this writ petition has been filed. 4. The counsel for the petitioners submits that the proceedings under Section 167 of the Act is in the nature of resuming the properties covered under the void transaction, as such, ultimately if it is found that the transaction was void, property will be resumed. So long as it is not held that the transaction was void, no interim order can be granted and the tenure holder cannot be restrained from exercising his right as conferred under the Act. In the absence of there being any specific provision for grant of injunction, the Sub-Divisional Officer was not competent to grant any injunction. He submits that Section 229 D of the Act specifically conferred the jurisdiction for passing the interim injunction in the suits, under Section 229 B and 229 C. Since the legislature conferred as limited the power for grant of interim injunction in suit under Section 229 B and 229 C, as such, the injunction cannot be granted in exercise of inherent powers also. The order is totally without jurisdiction and is liable to be set aside. 5. The counsel for the respondents submits that the petitioners had already filed a recall application before the Court below and has remedy to agitate his right before the court below. The writ petition be dismissed on the ground that the petitioners' recall application is pending. 6. I have considered the arguments of the counsels for the parties and examined the records. It is admitted that proceedings under Section 167 of the Act has been initiated before the court below. Section 167 provides for the consequences for void transfer and if the transfer is void then with effect from the date of transfer the property was deemed to be vested in State of UP, free from all encumbrances. Thus from the date of transfer itself the property covered under void transaction is vested in the State of UP. 7. However, jurisdiction of the authorities for grant of interim injunction during pendency of the proceeding, is concerned, earlier, there was no provision under the Act for grant of interim injunction. Thus from the date of transfer itself the property covered under void transaction is vested in the State of UP. 7. However, jurisdiction of the authorities for grant of interim injunction during pendency of the proceeding, is concerned, earlier, there was no provision under the Act for grant of interim injunction. The Act was amended in 1982 and Section 229 D has been added in it in which during course of the suit under Section 229 B and 229 C, the injunction can be granted by the court. Thus the legislature has conferred the jurisdiction for grant of injunction in the proceedings under Section 229 B and 229 C alone. Since the legislature has not conferred the jurisdiction for grant of injunction in other proceeding, accordingly, the injunction cannot be granted in exercise of inherent power also. The order of Sub-Divisional Officer dated 2.8.2004 is without jurisdiction and is liable to be set aside. 8. In the result, the writ petition is allowed. The orders of Sub-Divisional Officer dated 27.8.2004, Collector dated 21.7.2008 and Board of Revenue dated 20.1.2014 are set aside. The Collector shall proceed in the case in accordance with law.