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2016 DIGILAW 3473 (ALL)

SHIV MANGAL v. ADDITIONAL COMMISSIONER (ADMINISTRATION) LUCKNOW DIVISION

2016-10-19

ANIL KUMAR

body2016
JUDGMENT Hon’ble Anil Kumar, J.—Heard Shri Prabhakar Vardhan Chaudhary, learned counsel for the petitioners, learned Standing Counsel for the opposite party Nos. 1 to 3, Shri R. K. Sharma, learned counsel for the contesting respondent, Shri Yogendra Nath Yadav, learned counsel for the opposite party Nos. 4 and 5 and perused the record. 2. Facts in brief of the present case are that Smt. Phoola Devi filed two suits under Section 229-B of U.P. Zamindari Abolition & Land Reforms Act (hereinafter referred to as Act) claiming right and title over the land left by her deceased/husband/Dulare registered as Regular Suit Nos. 19/23/50/61/77/193/139 “Smt. Phoola Devi v. Munni Lal (Dead) represented through Shiv Mangal and others” and 198/24/51/62/78/194/138 “Smt. Phoola Devi v. Shiv Munni Lal (Dead) represented through Shiv Mangal and others”, allowed by judgment and decree dated 6.9.2011 passed by Sub Divisional Officer/Assistant Collector, 1st Class, Sadar, Unnao, challenged by defendants-petitioners by filing two Appeal Nos. 485/2010-11 and 486/2010-11 before the Additional Commissioner (Administration), Lucknow Division, Lucknow. 3. During the pendency of appeals, applications for impleadment have been moved by the opposite party No. 6 on the basis of agreement to sale to which petitioners-appellants have filed their objection. 4. By order dated 1.5.2015, Additional Commissioner rejected applications for impleadment. 5. On 10.9.2015, Smt. Phoola Devi died, as such, an application for substitution had been moved on behalf of her daugher/Smt. Yashoda Devi, allowed by order dated 15.10.2015. 6. Thereafter, on 15.10.2015, opposite party No. 6/Akhil Gupta moved a another application for his impleadment on the basis of agreement to sale dated 23.11.2012/26.11.2012 to which petitioners-appellants filed an objection on 7.1.2016. By order dated 11.1.2016, opposite party No. 1/Additional Commissioner (Administration), Lucknow Division, Lucknow allowed the said application. 7. Shri R. K. Sharma, learned counsel for the respondents raised a preliminary objection that against the order dated 11.1.2016 passed by opposite party No. 1, in an appeal under Section 231 (3) of the Act, petitioner has got statutory alternative remedy available to them to file revision under Section 333 of the Act. So the present writ petition is not maintainable. So the present writ petition is not maintainable. In this regard, he has placed reliance on the judgment given by this Court in the case of Ram Adhar v. Collector/District Magistrate, District-Shrawasti and others, 2016 (34) LCD 890 and by a Division Bench of this Court in the case of Mohanlal @ Mohand Das v. State of U.P. and others, 2016 (34) LCD 2033. Accordingly, he submits that the present writ petition is not maintainable and liable to be dismissed on the said ground. 8. Shri P.V. Chaudhary, learned counsel for the petitioners while rebutting the said contention submits that in the instant matter, an order dated 11.1.2016 passed by opposite party No. 1 thereby allowing the application for impleadment moved by the opposite party No. 6 cannot be challenged in a revision and the only remedy available to the petitioners is to challenge under Article 226 of the Constitution of India. In this regard, he has placed reliance on the judgment given by Hon’ble the Apex Court in the case of Plasto Pack and another v. Ratnakar Bank Ltd., 2002 (20) LCD 431. 9. I have heard learned counsel for the parties and gone through the records. 10. In order to decide the controversy involved in the present case, it will be appropriate to go through the provisions as provided under Section 333 of U.P. Z. A. & L. R. Act, relevant portion is quoted herein below : “The Board or the Commissioner or the Additional Commissioner may call for the record of any suit or proceeding (other than proceeding under sub-section (4-A) of Section 198) decided by any Court subordinate to him in which appeal lies or where an appeal lies but has not been preferred,for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceeding and if such subordinate Court appears to have ; (a) exercised a jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested; or (c) acted in the exercise of jurisdiction illegally or with material irregularity; the Board or the Commissioner or the Additional Commissioner, as the case may be, may pass such order in the case as he thinks fit.” 11. From bare perusal of the provisions of Section 333 of the Act, it is crystal clear that revision lies before the Board of Revenue or Additional Commssioner, Lucknow Division, Lucknow against any order passed in a suit or proceedings, other than, proceedings under sub-Section (4-A) of Section 198 of the Act. 12. Further, an order dated 11.1.2016 passed by opposite party No. 1 comes within the ambit and scope of the word “proceedings”, so the same is revisable under Section 333 of the Act before the Board of Revenue. Accordingly, once the legislature as given a mandate by virtue of Section 333 of the Act that if any order is passed in a proceeding, the same will be revisable. 13. Keeping in view the said facts as well as the fact that it is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provisions is plain and unambiguous. The Court cannot rewrite, recast or re-frame the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words that are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not got to its aid to correct or make up the deficiency. 14. The Court decide what the law is and not what it should be. The Courts of course adopt a construction which will carry out the obvious intention of the legislature but cannot legislate . But to invoke judicial activism to set at naught legislative judgment is sub serve of the constitutional harmony and comity of instrumentalities. The above said view is reiterated by Hon’ble Supreme Court in the following cases : “(i) Union of India and another v. Deoki Nandan Agarwal, AIR SC 96 (ii) All India Radio v. Santosh Kumar and another, (1998) 3 SCC 237 (iii) Sakshi v. Union of India and others, (2004) 5 SCC 518 (iv) Pandian Chemicals Ltd. v. CIT, (2003) 5 SCC 590 (v) Bhavnagar University v. Palitana Sugar Mills(P) and others, AIR 2003 SC 511 (vi) J.P. Bansal v. State of Rajasthan, (2003) 5 SCC 134 .” 15. In Nasiruddin v. Sita Ram Agarwal, (2003) 4 SCC 753 , the Hon’ble Supreme Court has held that the Court can iron cut of the creases but cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provisions is plain, unambiguous. It cannot add or subtract words to statue or read something into in which is not there. It cannot rewrite or recast the legislation. 16. So far as the judgment cited by Shri P.V. Chaudhary, learned counsel for the petitioner, that the order dated 11.1.2016 passed by opposite party No. 1 thereby allowing the application for impleadment moved by opposite party No. 6 is not revisable under Section 333 of the Act in view of the judgment given by Hon’ble the Apex Court in the case of Plasto Pack and another (supra), it does not hold good in the present case as the matter in question which has been under consideration before Hon’ble the Apex Court in respect to an application for amendment but taking into consideration the provisions of Section 151 CPC read with proviso a and b, Hon’ble Supreme Court held that order passed under Order 6 Rule 17 thereby allowing the amendment application is not revisable and after the judgment given by Hon’ble the Apex Court in the case of Plasto Pack and another (supra), Section 151 C.P.C. has been revised. So the petitioners cannot get any benefit from the case of Plasto Pack and another (supra) cited in his behalf, rather the same is not applicable in the present case. 17. For the foregoing reasons, as the order dated 11.1.2016 passed by opposite party No. 1 thereby allowing the application for impleadment moved by opposite party No. 6 is revisable under Section 333 of the Act and the petitioners have got statutory alternative remedy available to them to file revision under Section 333 of the Act. (See Ram Adhar v. Collector/District Magistrate, District Shrawasti and others, 2016 (34) LCD 890), the present writ petition is not maintainable and is liable to be dismissed on the said ground. 18. In the result, the writ petition lacks merit and is dismissed on the above said ground.