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2023 DIGILAW 1928 (ALL)

Mahaveer v. State Of U. P.

2023-08-10

CHANDRA KUMAR RAI

body2023
ORDER : 1. Heard Mr. Harish Yadav, learned counsel for the petitioners and Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents. 2. With the consent of learned counsel for the parties, the instant petition is being heard and disposed of finally without inviting counter affidavit. 3. The instant petition has been filed for the following reliefs: "I. A writ, order or direction in the nature of certiorari to quash/set aside the impugned order dated 15.4.2023 passed by the respondent no.2 and may further be pleased to allow the application dated 09.05.2019 filed by the petitioners under section 152 C.P.C. under the strength of the judgment of this Hon’ble Court in the case of Surajbhan Sharma vs. State of U.P. II. A writ, order or direction in the nature of mandamus commanding and directing the respondent concern not to interfere into the peaceful possession of the petitioners over the land in question and further not to alter the status of the land or transfer the same to any other agency. III. Issue any other writ, order or direction, which this Hon’ble Court may deem, just and proper in the circumstances of the case. IV. Issue the award cost of this petition petitioner." 4. Brief facts of the case are that one, Kudia, Harsharan & Kiran sons of Girohi @ Girbar were the bhumidhar of the Khasra No.197, Area 6-8-0, situated in Village-Sorkha, Zahidabad, Pargana & Tahsil-Dadari, District-Gautam Budh Nagar. Kiran son of Girohi has sold his 1/3 share through registered sale deed dated 3.6.1966 in favour of father of petitioner nos.1, 2 & 3, namely, Mahaveer, Suresh and Jatan as well as father of petitioner nos.5 & 6, who expired later on. Petitioners' father or petitioners have never executed any sale deed in favour of Pragatisheel Cooperative Society about the land in dispute. Petitioners came to know that the plot in dispute have been vested into the State in the proceeding under Section 154 (2)/167 (2) of U.P.Z.A. & L.R. Act. One, Jagmal @ Jagram, who was co-sharer of the plot in dispute never sold his share of the aforementioned plot in dispute at any point of time but by producing an imposter registered sale deed dated 5.1.1983/22.1.1983 had allegedly been executed in favour of Pragatisheel Cooperative Society about his 1/9 share vide sale deed dated 5.1.1983/22.1.1983. One, Jagmal @ Jagram, who was co-sharer of the plot in dispute never sold his share of the aforementioned plot in dispute at any point of time but by producing an imposter registered sale deed dated 5.1.1983/22.1.1983 had allegedly been executed in favour of Pragatisheel Cooperative Society about his 1/9 share vide sale deed dated 5.1.1983/22.1.1983. Petitioner instituted a civil suit being O.S. No.18 of 2015 to declare the sale deed dated 5.1.1983/22.1.1983 as null and void. In the aforementioned suit, State of U.P./Collector was impleaded as defendant no.2. Civil Court vide judgment dated 8.10.2018 decreed the suit and cancelled the sale deed dated 5.1.1983/22.1.1983. The judgment and decree dated 8.10.2018 attained finality, accordingly, petitioners filed an application No.7 of 2019, under Section 152 of Civil Procedure Code dated 9.5.2019 against the order dated 7.4.1993. Respondent no.2 without considering the case setup by the petitioners in their application under Section 152 of C.P.C. has rejected the same as not maintainable vide order dated 15.4.2023, hence this writ petition to set aside the order dated 15.4.2023 passed by respondent no.2 and allowed the application dated 9.5.2019 filed by the petitioners under Section 152 of C.P.C. in the light of the judgment of this Court passed in Writ Petition No.58827 of 2011 (Surajbhan Sharma vs. State of U.P. & Others) decided on 21.10.2011 and Writ-C No.29898 of 2014 (Sharma Singh and Another Vs. State of U.P. and 3 Others) decided on 28.5.2014. 5. Learned counsel for the petitioners submitted that the petitioners' father/petitoiners have not executed any sale deed in respect to the plot in question, as such, the property could not be vested in the State-Government. He further submitted that even the sale deed alleged to be executed on 5.1.1983 in respect to the plot in question that has been cancelled by the civil Court in Civil Suit No.18 of 2015 in which State of U.P. through Collector, Gautam Buddh Nagar was party, as such, dismissal of the petitioners' application filed under Section 152 of C.P.C. against the order dated 7.4.1993 is wholly illegal. He next submitted that respondent no.2 vide impugned order has held that the judgment passed in civil suit will not be applicable as State was not made party in the aforementioned suit although State through Collector Gautam Buddh Nagar was impleaded in the suit proceeding. 6. On the other hand, Mr. He next submitted that respondent no.2 vide impugned order has held that the judgment passed in civil suit will not be applicable as State was not made party in the aforementioned suit although State through Collector Gautam Buddh Nagar was impleaded in the suit proceeding. 6. On the other hand, Mr. Abhishek Shukla, learned Additional Chief Standing Counsel for the State-respondents submitted that no interference is required against the impugned order. He further submitted that the land has been rightly vested in the State Government as there was violation of provisions contained under U.P.Z.A. & L.R. Act. He next submitted that no interference is required in the matter and the writ petition is liable to be dismissed. 7. I have considered the argument advanced by learned counsel for the parties and perused the record. 8. There is no dispute about the fact that the petitioners' father or petitioners have not sold the property in dispute to any society. There is also no dispute about the fact that application dated 9.5.2019 filed by the petitioners under Section 152 of C.P.C. against the order vesting the plot in State-Government has been dismissed as not maintainable. 9. In order to appreciate the controversy involved in the matter, the perusal of Section 152 of Civil Procedure Code, Section 214 of U.P. Revenue Code, 2006 & Section 341 of U.P.Z.A. & L.R. Act will be necessary for perusal, which are as follows: Section 152 of Civil Procedure Code, 1908 "152. Amendment of judgments, decrees or orders:-Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties." Section 214 of U.P. Revenue Code, 2006 "214. Applicability of Code of Civil Procedure, 1908 and Limitation Act, 1963 - Unless otherwise expressly provided by or under this Code, the provisions of the Code of Civil Procedure, 1908 and the Limitation Act, 1963 shall apply to every suit, application or proceedings under this Code." Section 341 of U.P. Zamindari Abolition and Land Reforms Act, 1950 "341. Application of certain Acts to the proceeding of this Act. Application of certain Acts to the proceeding of this Act. -Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, the Code of Civil Procedure, 1908, and the [Limitation Act, 1963] [including Section 5 thereof] shall apply to the proceedings under this Act." 10. The perusal of relevant portion of the judgment passed in Surajbhan Sharma (supra) will be necessary for perusal, which is as under: "Apart from this, the decisions, which have been relied upon by the learned counsel for the petitioner clearly lay down the law that a correction which is either clerical or an accidental slip or omission can be corrected even without the authority requiring the party to file an appeal or a review. If the mistake of the area mentioned in the order dated 7.4.1993 is attributable solely to the respondent, then the Collector being the highest authority in the district empowered under the U.P. Land Revenue Act, 1901, to correct entries was bound to exercise his powers in relation to the order dated 7.4.1993 which was a proceeding under the U.P. Zamindari Abolition & Land Reforms Act, 1950, to which the provisions of 1901 Act apply. Not only this, Section 341 of the 1950 Act applies the provisions of the Civil Procedure Code to the proceedings under the 1950 Act. Accordingly, the principles of Section 151 and Section 152 of CPC also apply which has to be invoked by the Collector to rectify the error for disposing of the application of the petitioner. The Collector, in my opinion, failed to exercise his jurisdiction in accordance with law and in the light of the observations made herein above and hence the order dated 6.9.2011 is unsustainable on this score as well. The argument, as contained in the Affidavit of the State that the Addl. District Magistrate is yet to proceed and decide the restoration application, needless to mention that once the order dated 6.9.2011 stands, the Addl. District Magistrate cannot proceed against the same. This stand, therefore, taken in the short-counter-affidavit cannot be appreciated and as a matter of fact the District Magistrate ought to have disposed of the entire matter himself in the background of the case and in the light of the observations made herein above. The suggestion by the respondents is as if the matter is still pending before the Addl. District Magistrate. The suggestion by the respondents is as if the matter is still pending before the Addl. District Magistrate. This, in my opinion, is a mere eye-wash and the petitioner is to gain nothing by this procedural shuttling. Learned Addl. Advocate General states that the matter will be decided in accordance with law once the legal impediment as being experienced by the Officer is clarified. In view of the conclusions drawn herein above, there is no impediment in the passage of the District Magistrate to decide the application of the petitioner and to carry out the rectification after verifying the status of the land which is claimed by the petitioner to be not a part of the transaction covered by the order dated 7.4.1993. The Collector, therefore, has to carry out this exercise in the light of the observations made herein above and pass orders objectively without allaying any affairs in this regard. Consequently, the order dated 6.9.2011 is quashed. The Collector, Gautam Budh Nagar, will proceed to pass an order within 6 weeks of the date of presentation of a certified copy of this order before him after allowing the petitioner an opportunity in case the petitioner has to provide any information in this regard. The writ petition is, accordingly, allowed." 11. The perusal of relevant portion of the judgment passed in Sharma Singh (supra) will be also necessary for perusal, which is as under: "7. I have considered the arguments of the counsel for the parties and examined the record. By virtue of Section 341 of U.P. Act No. 1 of 1951 the provisions of Code of Civil Procedure have been applied as such application under Section 152 C.P.C. was maintainable. Section 152 C.P.C. authorizes the Court to correct the clerical or arithmetical mistake in judgments, decrees or order or errors arising therein from any accidental slip or omission at any time of its own motion or on the application of any of the parties. Thus under this section, the phrase "any time" has been used. Limitation Act, 1963 does not prescribe any limitation for the application under Section 152 C.P.C. It has been consistently held by various High Court that no limitation has been prescribed for the application under Section 152 C.P.C. See Jai Narain Vs. Chhedalal, AIR 1960 All 385 and in Civil Misc. Writ Petition No. 58827 of 2011 Surajbhan Sharma Vs. Limitation Act, 1963 does not prescribe any limitation for the application under Section 152 C.P.C. It has been consistently held by various High Court that no limitation has been prescribed for the application under Section 152 C.P.C. See Jai Narain Vs. Chhedalal, AIR 1960 All 385 and in Civil Misc. Writ Petition No. 58827 of 2011 Surajbhan Sharma Vs. State of U.P. and others, decided on 21.10.2011. Similarly powers under Section 152 C.P.C. can be exercised on its own motion as such notice of the mistake can be taken from the application filed by third party also. The petitioner were not party at any stage as such plea regarding finality of the order cannot be raised against the petitioner. 8. So far as merger of the order dated 07.04.1993 in the order of Supreme Court dated 28.07.2011 is concerned. The clerical or arithmetical mistake crept in the order due to accidental slip or omission can always be corrected. Supreme Court in M.S. Ahlawat v. State of Haryana, (2000) 1 SCC 278 , held that to perpetuate an error is no virtue but to correct, it is a compulsion of judicial conscience. When a litigant complains of miscarriage of justice by exercise of powers of this Court which is without jurisdiction or not after following the due procedure resulting in his incarceration in a prison losing valuable liberty for a period with the attendant catastrophe descending on his career and life we have no option but to examine the correctness of his contentions. 9. In this case, the petitioners are complaining that their land has been illegally vested in State of U.P. treating it as purchased by Pragatisheel Samuhik Sahakari Krishi Samiti Ltd. in excess of 12.50 acre although it was never sold by them nor they were given any opportunity of hearing. In case the allegations of the petitioners are correct then it is a mistake of the nature of accidental slip and can be corrected in exercise of power under Section 152 of Code of Civil Procedure. The application has been illegally rejected. 10. In the result the writ petition succeeds and is allowed. Order of the Collector dated 06.09.2011 is set aside. The matter is remanded to the Collector to decide the application of the petitioners on merit after hearing the parties in accordance with law. The application has been illegally rejected. 10. In the result the writ petition succeeds and is allowed. Order of the Collector dated 06.09.2011 is set aside. The matter is remanded to the Collector to decide the application of the petitioners on merit after hearing the parties in accordance with law. Since the matter is lingering for long time, the application be decided expeditiously preferably within a period of two months from the date of producing a certified copy of this order." 12. In respect to the order dated 7.4.1993 passed by respondent no.2 i.e. Collector, District-Gautam Buddh Nagar, several writ petitions were filed before this Court and the controversy has been settled in Civil Misc. Writ Petition No.58827 of 2011 (Surajbhan Sharma vs. State of U.P. & Others) decided on 21.10.2011 holding that application filed by the tenure holder to carry out the rectification after verifying status of the land, which is claimed by the tenure holder to be not part of the transaction covered by the order dated 7.4.1993 should be decided on merit in accordance with law as well as in Writ-C No.29898 of 2014 (Sharma Singh and Another Vs. State of U.P. and 3 Others) decided on 28.5.2014, wherein this Court has directed the Collector to decide the application filed by the petitioner, under Section 152 C.P.C. against the order dated 7.4.1993 vesting the plots in State-Government, in accordance with law on merit within stipulated period. 13. In the instant matter, the recall application filed by the petitioners' father, under Section 152 C.P.C. against the order dated 7.4.1993 has been dismissed as not maintainable, which is against the ratio of law laid down in Surajbhan Sharma (supra) & Sharma Singh (supra). 14. Since the controversy has already been settled in respect to the application filed against the order dated 7.4.1993, as such, the application dated 9.5.2019 filed by the petitioners was to be considered on merit in view of the ratio of law laid down in Surajbhan Sharma (supra) as well as Sharma Singh and Another (supra). 15. It is also material in the present case that civil Suit No.18 of 2015 filed for cancellation of sale-deed in question has been decreed and sale deed in question has been cancelled. 15. It is also material in the present case that civil Suit No.18 of 2015 filed for cancellation of sale-deed in question has been decreed and sale deed in question has been cancelled. It is further material fact that State through Collector was impleaded in the aforementioned Suit No.18 of 2015, as such, the finding recorded under the impugned order is wholly wrong. 16. Considering the entire facts and circumstances of the case, the impugned orders dated 15.4.2023 passed by respondent no.2 i.e. Collector, District-Gautam Buddh Nagar is liable to be set aside and the same is hereby set aside. 17. The writ petition stands allowed in part and the matter is remitted back before respondent no.2 to register the Case No.7 of 2019 on its original number and decide the same on merit considering the ratio of law laid down in Surajbhan Sharma (supra) & Sharma Singh (supra), in accordance with law, expeditiously preferably within a period of three months from the date of production of certified copy of this order before him. It is further directed that respondent no.2 shall issue notice to all the interested parties to the dispute, if any, before deciding the Case No.7 of 2019 on merit.