Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 1487 (ALL)

Raj Kumari v. State of U. P.

2019-05-30

SIDDHARTHA VARMA

body2019
JUDGMENT : Siddhartha Varma, J. This writ petition has been filed against the order dated 22.10.2018 passed by the Additional Commissioner (Second), Moradabad in Revision/Case No.00909/2018 (Computerized No.C-201813000000909 of 2018) by which the delay in filing the Revision has been condoned and the Revision had been considered to have been filed within the limitation prescribed. 2. The petitioner-Raj Kumari had filed an application under section 144 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act') (corresponding section 82 of the U.P. Revenue Code, 2006) for a declaration that plot no.139M Khasra No.152 area 0.403 hectares which had been declared non-agricultural be once again be considered as agricultural. This application of petitioner no.1 was allowed on 30.4.2016. When petitioner no.1 sold the land in question to the petitioner no.2, then certain proceedings under the Stamp Act viz-a-viz deficiency of stamp were initiated and as the question as to whether the land was agricultural or non-agricultural, could not be addressed by the Authorities under the Stamp Act, a Revision was filed by the State of Uttar Pradesh against the order dated 30.4.2016 on 26.5.2018. This Revision was numbered as Revision/Case No.00909/2018 (Computerized No.C-201813000000909 of 2018) and was filed by the State of Uttar Pradesh through the Mandaliya Shaskiya Adhivakta. When the Revision was filed, the petitioner no.2 objected on 31.5.2018 to the Delay Condonation Application and also to the fact that the parties were not arrayed properly. However, when without considering the objections regarding array of parties, the application under section 5 of the Indian Limitation Act was allowed, the petitioners approached this Court and essentially submitted that when the Memo of Revision itself was defective, the delay could not have been condoned and the Revision could not be heard on merits. 3. Learned counsel for the petitioners submitted that the Memo of Revision could have been filed in the manner it had been provided under Order XXVII of the C.P.C. He submitted that since the Code of Civil Procedure, 1908, was applied to the proceedings under the U.P. Zamindari Abolition and Land Reforms Act and also under the U.P. Revenue Code, Order XXVII he submitted that a suit had to be filed by or against the Government by any person who was by a general or special order appointed by the Government in its behalf to file the Revision. He submitted that even the Revision and the affidavit etc. had to be verified by that person and he also submitted that when the person authorised was filing a Revision at the behest of the State Government, then he had to be well acquainted of the facts of the case. Learned counsel further submitted that the Revision could have been filed through a Pleader as counsel but it could not have been filed by the Pleader. In this regard, learned counsel for the petitioners specifically referred to Order XXVII and sections 2(7) and 79 of the C.P.C. Since, the learned counsel referred to the abovementioned provisions contained in Order XXVII, section 2(7) and 79 of the C.P.C., the same are being reproduced here as under :- "1. Suits by or against Government.--In any suit by or against the Government, the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case. 2. Persons authorised to act for Government.--Persons being ex officio or otherwise authorised to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government. 3. Plaints in suits by or against Government.--In suits by or against the Government, instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert the appropriate name as provided in section 79. 4. Agent for Government to receive process.--The Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court. 5. Fixing of day for appearance on behalf of Government.--The Court, in fixing the day for the Government to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channel, and for the issue of instructions to the Government pleader to appear and answer on behalf of the Government, and may extend the time at its discretion but the time so extended shall not exceed two months in the aggregate. 5A. 5A. Government to be joined as a party in a suit against a public officer.--Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit. 5B. Duty of Court in suits against the Government or a public officer to assist in arriving at a settlement.--(1) In every suit or proceeding to which the Government, or a public officer acting in his official capacity, is a party, it shall be the duty of the Court to make, in the first instance, every endeavour, where it is possible to do so consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit. (2) If, in any such suit or proceeding, at any stage, it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement. (3) The power conferred under sub-rule (2) is in addition to any other power of the Court to adjourn proceedings.] 6. Attendance of person able to answer questions relating to suit against Government.--The Court may also, in any case in which the Government pleader is not accompanied by any person on the part of the Government who may be able to answer any material questions relating to the suit, direct the attendance of such a parson. 7. Extension of time to enable public officer to make reference to Government.--(1) Where the defended is a public officer and, on receiving the summons, considers it proper to make a reference to the Government before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel. (2) Upon such application the Court shall extend the time for so long as appears to it to be necessary. 8. (2) Upon such application the Court shall extend the time for so long as appears to it to be necessary. 8. Procedure in suits against public officer.--(1) Where the Government undertakes the defence of a suit against a public officer, the Government pleader, upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits. (2) Where no application under sub-rule (1) is made by the Government pleader on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties : Provided that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree. 8A. No security to be required from Government or a public officer in certain cases.--No such security as is mentioned in rules 5 and 6 to Order XLI shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity. 8B. Definitions of "Government" and "Government pleader" In this Order [unless otherwise expressly, provided] "Government" and "Government pleader" mean respectively- (a) in relation to any suit by or against the Central Government, or against a public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order; [***] (c) in relation to any suit by or against a State Government or against a public officer in the service of a State, the State Government and the Government pleader as defined in clause (7) of section 2, or such other pleader as the State Government may appoint, whether generally or specially, for the purposes of this Order. Section 2(7) CPC "Government Pleader" includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader. Section 2(7) CPC "Government Pleader" includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader. Section 79 CPC Suits by or against Government.--In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be-- (a) in the case of a suit by or against the Central Government, the Union of India, and (b) in the case of a suit by or against a State Government, the State." 4. Learned counsel for the petitioners further submitted that when there was no affidavit filed in support of the application filed under section 5 of the Limitation Act, the application could not have been adjudicated upon and, therefore, should have been dismissed. With regard to the fact that the Revision could have been filed through the Government Pleader as a counsel but not by him, learned counsel for the petitioners relied upon Firm Mohanlal Ramchandra Vs. The Union of India (UOI), (1972) AIR Raj. 152 : Union of India (UOI) Vs. Abdul Razak & Anr., (1956) AIR Patna 511. 5. Learned Standing Counsel who appeared for the State on various occasions was granted time to take instructions as to on what count the Revision was filed by the State Government and as to how the person authorised was the Government Pleader and not any Authority of the Department. 6. The order-sheet reveals that on various dates namely 11.12.2018, 18.12.2018, 10.1.2019, 18.2.2019 and 25.2.2019, the learned Standing Counsel was required to take instructions as to on what count the Government Advocate had, as an authorised person under Order XXVII Rule 1 C.P.C., filed the Revision. The orders dated 11.12.2018, 18.12.2018, 10.1.2019, 18.2.2019 and 25.2.2019 are being reproduced here as under :- Order dated 11.12.2018 Against the order dated 30.4.2016, when a revision was filed by the State of Uttar Pradesh, it was filed through the Divisional Govt. Counsel (Revenue), Moradabad. The Revenue Secretary, U.P. may inform the Court as to whether a Revision filed by the State of U.P. can be filed by the Govt. Counsel. The Revision can definitely be filed through a counsel but he cannot be a party to it. The applicant in the Revision appears to be a counsel. Counsel (Revenue), Moradabad. The Revenue Secretary, U.P. may inform the Court as to whether a Revision filed by the State of U.P. can be filed by the Govt. Counsel. The Revision can definitely be filed through a counsel but he cannot be a party to it. The applicant in the Revision appears to be a counsel. Put up this case on 18.12.2018 as fresh. Learned counsel has cited Baljeet Singh vs. Pratap Singh and Others, (2017) 7 ADJ 507 and has submitted that even the filing of affidavit on behalf of the client by a counsel is a professional misconduct. Order dated 18.12.2018 Place this petition as fresh on 10.1.2019. The instructions as were called for, may be submitted by the learned Standing Counsel. Order dated 10.1.2019 Put up this case on 17.1.2019 as unlisted. By that date, the order dated 11.12.2018 may be complied with. If on that date, the order dated 11.12.2018 is not complied with, then the Court will consider summoning the Revenue Secretary, Uttar Pradesh. Till the next date of listing, the effect and operation of the order dated 22.10.2018 shall remain stayed. Order dated 18.2.2019 The instructions as have been received by learned Standing Counsel are very sketchy. Learned Standing Counsel may take further instructions by 25.02.2019. Put up this case on 25.02.2019 as unlisted. Interim order, if any, shall continue till the next date of listing. Order dated 25.2.2019 At page 52 of the writ petition, the array of parties is as follows : ---------------- ^^mŸkj izns'k ljdkj }kjk e.Myh; 'kkldh; vf/koDrk ¼jktLo½ eqjknkckn -----------------------fuxjkuhdrkZ cuke 1- Jhefr jktdqekjh iRuh vej flag fuoklh ch&124] fgefxjh dkyksuh gjFkyk rglhy o ftyk eqjknkckn 2- dqŒ pd{kq vxzoky iq=h xksiky vxzoky fuoklh 1&190 jkexaxk fogkj dkaB jksM eqjknkckn -------------------------foi{khx.k^^ The only question which has to be replied by the Authorities is as to how the Government of Uttar Pradesh has filed the Revision through Mandaliya Shaskiya Adhivakta (Revenue). If for filing a reply, to the question asked, the Revenue Secretary is asking for four weeks' time, then it appears absurd. However, time is extended till 5.3.2019. The letter dated 22.2.2018 supplied by the learned Standing Counsel be kept on record. Put up this petition on 5.3.2019 as unlisted. Interim order, if any, shall continue till the next date of listing. 7. However, time is extended till 5.3.2019. The letter dated 22.2.2018 supplied by the learned Standing Counsel be kept on record. Put up this petition on 5.3.2019 as unlisted. Interim order, if any, shall continue till the next date of listing. 7. However, learned Standing Counsel could not produce any document whatsoever and on all occasions only prayed for time. On 22.2.2019, a communication was received which was kept on record. The contents of the said communication is also being reproduced here as under :- ^^izs"kd] vkjŒohŒ flag] la;qDr lfpo mŸkj izns'k 'kkluA lsok esa] eq[; LFkk;h vf/koDrk ekŒ mPp U;k;ky;] bykgkcknA jktLo vuqHkkx&1 y[kuÅ fnukad% 22 Qjojh] 2019 fo"k;% fjV ;kfpdk laŒ&40760@2018] jktdqekjh o vU; cuke mŸkjizns'k jkT; o 03 vU; ds lEcU/k esA egksn;] mi;qZDr fo"k;d vk;qDr eqjknkckn e.My eqjknkckn ds i= la[;k&754@isŒvŒvkŒizŒ@2019] fnukad 21-2-2019] tks lfpo] jktLo foHkkx dks lEcksf/kr rFkk vkidks i`"Bkafdr gS] dk lanHkZ xzg.k djus dk d"V djsA 2- bl lEcU/k es eq>s ;g dgus dk funsZ'k gqvk gS fd fjV ;kfpdk laŒ&40760@2018] jktdqekjh o vU; cuke mŸkj izns'k o 03 vU; ds lEca/k esa ekŒ mPp U;k;ky; ds vkns'k fnukad&11-12-2018 }kjk okafNr bUlVªD'ku nkf[ky djk;s tkus esa le; yxus dh laHkkouk gSA vr% bl lEca/k esa bUlVªD'ku nkf[ky djk;s tkus gsrq ekŒ mPp U;k;ky; ls 04 lIrkg dk le; izkIr djus dk d"V djsA Hkonh; gŒviŒ ¼vkjŒohŒflagŒ½ la;qDr lfpoA 8. Learned Standing Counsel further submitted that it was the State of Uttar Pradesh which was actually filing the Revision and that it was only through the State Counsel that the application had been filed and the mere mentioning of the name of the Government Advocate in the array of parties did not mean much. 9. Having heard learned counsel for the petitioners and the learned Standing Counsel, this Court is of the view that the Revision could have been filed only by some authorised agent for the State Government but definitely it could not have been filed by the Government Pleader/Government Advocate. The Revision could be filed by the State Government through the Government Advocate but it could not have been filed by the Government Advocate. An Advocate's vakalatnama is only a contract between the Advocate and his client to contest the case. The Advocate himself cannot be arrayed in the array of parties. 10. The Revision could be filed by the State Government through the Government Advocate but it could not have been filed by the Government Advocate. An Advocate's vakalatnama is only a contract between the Advocate and his client to contest the case. The Advocate himself cannot be arrayed in the array of parties. 10. Under such circumstances, the Court has no other option but to quash the Memo of Revision itself as it had not been filed by the State Government through any person authorised by it. The State Government had not been able to produce any authority which might have been given to the Government Advocate through whom the Revision could have been filed under Order XXVII Rule 1 CPC. 11. Since the filing of the Revision appears to be an absolutely malicious act on the part of the Government where even the parties were not arrayed properly, the writ petition is allowed with a cost of Rs.50,000/- which shall be paid to the petitioners within a period of two weeks from the date of presentation of a certified copy of this order.