# Abhiraj Singh v. The Addl. Commissioner, Agra & Ors

- **Citation:** (2022) 12 ILRA 272
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-19
- **Case number:** Writ C No. 19465 of 1998
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhiraj-singh-v-the-addl-commissioner-agra-ors-48013
- **Pages:** 5

## Headnote

A. Civil Law - UP Zamindari Abolition and
Land Reform Act, 1950 - Sections 229-B
& 333 - Revision against interlocutory
order
-
Maintainability
-
Held,
correcting/amending
the
mistake
committed by the Court itself is an
interlocutory order and it can be corrected
at any time either suo moto or on the oral
or in writing application of the either party
and against such order no revision would
lie - For maintainability of a revision,
there must be a decision of any suit or
proceeding. Here no suit or proceeding
has been finally decided - The suit under
Section 229 B is still pending and even by
the impugned order it was not decided.
Therefore, the forum to prefer revision
was not available to the petitioner. (Para
17 and 20)
B. Civil Law - UP Zamindari Abolition and
Land Reform Act, 1950 - Sections 229-B
& 333 - Revision before the Commissioner
- Calling of the record by the revisional
court, whether mandatory or directory -
Word 'may' used in S. 333 - Scope -
Prayag Das Agarwal's case discussed - If
the word 'may' is used in relation to an
officer or for Court for respect then it is
imperative rather than mandatory - Held,
there was no occasion to look into the
legality and propriety of the order of the
lower Court and there was no need to
12 All. Abhiraj Singh Vs. The Addl. Commissionr, Agra & Ors.
273
summon the records of the lower Court -
By summoning the records the proceeding
of the Lower Court are discontinued and
the length of the case becomes too longer
- High Court held the petition devoid of
the merit. (Para 7 and 21)
Writ petition dismissed. (E-1)
List of Cases cited:

## Text

272 INDIAN LAW REPORTS ALLAHABAD SERIES
demolition of residential building right to
privacy as recognized by Hon'ble Supreme
Court in the case of K.S. Puttaswamy and
another v. Union of India and others,
reported in (2017) 10 SCC 1 has also been
violated.

19. In the instant case, the building in
question in respect of which demolition by
the petitioner has been alleged in this
petition, as per the own showing of the
petitioner, was rented to Bharat Sevak
Samaj, Weight and Measurement Office,
U.P. Agro Ltd., Consolidation Office, Food
Corporation of India and some Liquor
Shops. Thus, it was not being used for
residential purposes. Further as already
observed above, the matter at hand involves
determination of disputed questions of facts
which does not appear to us to be possible
without the parties leading the evidence.

20. In the aforesaid view, we are of
the opinion that judgment of Hon'ble
Kerala High Court is of no avail to the
petitioner.

21. For the aforesaid reasons, we are
not inclined to entertain this writ petition
which is hereby dismissed.

22.

However,
notwithstanding
dismissal of this writ petition, it will be
open to the petitioner to take recourse to
any other remedy, which may be available
to him under law, including the remedy of
instituting appropriate suit before the court
of competent civil jurisdiction.

23. Costs made easy.
----------
(2022) 12 ILRA 272
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2022
BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Writ C No. 19465 of 1998

Abhiraj Singh ...Petitioner
Versus
The Addl. Commissioner, Agra & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Prakash Chandra

Counsel for the Respondents:
S.C., Sri Pushpendra Singh Yadav, Sri
Rajeev Sharma, Sri V.K. Singh

A. Civil Law - UP Zamindari Abolition and
Land Reform Act, 1950 - Sections 229-B
& 333 - Revision against interlocutory
order
-
Maintainability
-
Held,
correcting/amending
the
mistake
committed by the Court itself is an
interlocutory order and it can be corrected
at any time either suo moto or on the oral
or in writing application of the either party
and against such order no revision would
lie - For maintainability of a revision,
there must be a decision of any suit or
proceeding. Here no suit or proceeding
has been finally decided - The suit under
Section 229 B is still pending and even by
the impugned order it was not decided.
Therefore, the forum to prefer revision
was not available to the petitioner. (Para
17 and 20)
B. Civil Law - UP Zamindari Abolition and
Land Reform Act, 1950 - Sections 229-B
& 333 - Revision before the Commissioner
- Calling of the record by the revisional
court, whether mandatory or directory -
Word 'may' used in S. 333 - Scope -
Prayag Das Agarwal's case discussed - If
the word 'may' is used in relation to an
officer or for Court for respect then it is
imperative rather than mandatory - Held,
there was no occasion to look into the
legality and propriety of the order of the
lower Court and there was no need to
12 All. Abhiraj Singh Vs. The Addl. Commissionr, Agra & Ors.
273
summon the records of the lower Court -
By summoning the records the proceeding
of the Lower Court are discontinued and
the length of the case becomes too longer
- High Court held the petition devoid of
the merit. (Para 7 and 21)
Writ petition dismissed. (E-1)
List of Cases cited:
1. Gunai Vs Gaon Sabha & ors.; 1990 RD (J)
Page 30
2. Assistant Commissioner Vs Prayag Das
Agarwal; AIR 1981 SC 1263
3. Raghunandan Vs Narain Das Balkrishna Das;
1950 ALJ 220
4. Beni Prasad Tiwari Vs Damodar Prasad
Tiwari; 1979 AWC (Rev) 37
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This petition has been instituted to
quash the order passed by Sub-Divisional
Officer dated 29.12.1997 and order dated
5.5.1998
passed
by
Additional
Commissioner.

2. In brief, facts of the case are that
respondent no. 5 and 6 filed a suit under
Section 229 -B of U.P. Z.A. & L.R. Act,
which was dismissed in default on 4.8.1993.
It was again dismissed in default on
7.11.1994. (Annexure No. 1 & 2 to the writ
petition). Thereafter, respondent nos. 5 & 6
moved the restoration application which was
rejected by Sub-Divisional Officer vide order
dated 25.6.1996 (Annexure No. 3 to the writ
petition). Later on they filed a review petition
for recalling the order dated 25.6.1996 which
was allowed by order dated 29.12.1997
(Annexure No. 4 to the writ petition) without
serving notice to the petitioner.

3. Against the aforesaid order, the
petitioner filed a revision before respondent
no.1.
Generally
revisions
are
being
admitted by the Commissioner and hence
only on stay application case was heard on
20.1.1998. Neither it was heard on the
point of maintainability nor on the merit.
Records of the courts below were also not
summoned and records were not available
before respondent no.1 when the order
rejecting the revision was passed. In fact
22.1.1998 was fixed for orders on stay
application but to the utter surprise, the
revision was denied as not maintainable on
31.1.1998 (Annexure No. 5 to the writ
petition). As the aforesaid order was
exparte, the petitioner filed restoration
against the order dated 31.1.1998 which
was rejected on 5.5.1998 (Annexure No. 6
to the writ petition).

4. Further proceedings are going on in
the court and hence it is desirable in the
interest of justice to stay the operation of
the order dated 31.1.1998, passed by
respondent no. 1.

5. Heard learned counsel for the
parties and perused the record.

6. Learned counsel for the petitioner
has relied on the judicial precedent Gunai
Vs. Gaon Sabha and Others 1990 RD (J)
Page 30, wherein it has been held that "
whenever a revision under Section 333 of
the U.P. Z.A. & L.R. Act, is moved before
the Commissioner, Collector or Board of
Revenue, before taking any decision on its
maintainability, record of the lower court
must be summoned.

Section 333 is as under:

Power of Board to Call for
Cases- the Board may call for the record of
any suit or proceeding by any subordinate
court in which no appeal lies or where an
274 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal lies but has not been preferred and
if such subordinate court appears-

(a)
to
have
exercised
a
jurisdiction not vested in it in law, or

(b) to have failed to exercise a
jurisdiction so vested, or

(c) to have acted in the exercise
of jurisdiction illegally or with material
irregularity, the Board may pass such order
in the case as it thinks fit."

7. In para 5 of the judgment, the
learned Single Judge has held that " it
appears from the perusal of Section 333
that the word 'may' is (if desired) is used
for the Collector to exercise his judicial
power and to call for files of the lower
court. This question has to be considered as
to whether word 'may' in Section 333 is
mandatory or directory in nature. If the
word 'may' is used in relation to an officer
or for Court for respect then it is imperative
rather than mandatory. In this regard the
interpretation given in the case of Assistant
Commissioner Vs. Prayag Das Agarwal,
AIR 1981 SC 1263, is important.

8. In para 7 of the judgment, the
learned Single Judge has held that intention
of the legislature is clear from the
interpretation of the above word 'may' that
when a revision is presented before the
Collector or Board of Revenue, he must
call for record/files of the lower court or
subordinate court before deciding it as to
whether it should be admitted or not.

9. The Commissioner has rejected the
revision without considering the provisions
of Section 333 as mandatory and without
calling for the records of the subordinate
courts. Therefore, the prayer has been made
to allow the petition and direct the
Commissioner to summon the lower court
record and pass the order afresh.

10. In Para 9, the learned Single
Judge has observed that-

"it is clear from the provision of S.
332 (A) that the word 'may' has been used in
relation to the revision presented before the
Commissioner or the Assistant Collector. But
there also the meaning of the word 'may' is
mandatory and not directory. This is another
thing that it would be appropriate to call for the
subordinate courts file only after accepting
primafacies for the decision. But if there is any
such order as an exception in which after
listening to it, it seems necessary to call for the
file of the subordinate court, then there should
be no hesitation in calling for it."

11. The facts and circumstances of the
cited case and the case in hand are quite
different. The only similarity is that in both the
cases revision was preferred.

12. In the cited case, the petitioner was
served a notice u/s 122 B of the U.P. Z.A. &
L.R. Act for illegal occupation of the Gram
Sabha land and an order of his eviction,
payment
for
damages
and
execution
expenditure was passed by Tehsildar, against
which he moved revision before the Collector
and
the
Collector
Azamgarh,
without
summoning the Lower Courts records and
without assigning any reason dismissed the
revision. In this regard para 8 of the judgment is
noted hereunder:

'Apart from this, from the prima facie
observation of the impugned order dated
27.12.1990, it appears that there is no clarity in
that order. In that case the petitioner was also
claiming his rights under Section 122 B (4-F)
thus a legal right was sincerely involved in it.

13. Contrary to the above in this case
due to misconception that the restoration
application is for the restoration of the
12 All. Abhiraj Singh Vs. The Addl. Commissionr, Agra & Ors.
275
rejected
restoration,
the
restoration
application was rejected by S.D.O. on
25.6.1996. Later on after knowing that
mistake apparent on the face of record has
been committed by him and the restoration
was for the restoration of original suit, he
cancelled the order on 29.12.1991 against
which the petitioner moved revision no.
106 of 98 under Section 333 which was
rejected with comments on 31.01.1998.
Later on the petitioner moved restoration
application no 106 of 1997-98 u/s 333A
which was also rejected alleging that the
revision (of the petitioner) was preferred
against the interlocutory order hence it was
not maintainable and it was rightly rejected.

14. Now the petitioner has come to
this Court and has taken same ground that
without summoning the lower court's
record a revision can not be decided. It can
not be decided even on the point of
admission and maintainability.

15. The petitioner has not attached all
the relevant papers but has filed only the
copies of the orders from which the facts of
the case which appear before this Court are
that respondent nos. 5 & 6 filed a suit under
Section 229B of the U.P. Z.A. & L.R. Act
No. 122/1517/1993 which was dismissed in
default on 4.8.1993 and it was again
dismissed in default on 7.11.1994. The
respondents-plaintiffs moved restoration
application No. 6/1995 which was rejected
by the lower Court on 25.6.1996 that the
case u/s 122B has been dismissed and one
restoration has also been dismissed earlier.
Though after dismissal of the case on
7.11.1994 the restoration application was
moved
on
21.11.1994
alongwith
the
application under Section 5 of Limitation
Act. If it was so, and the restoration has
been moved just after 14 days, there was no
need to pray to condone the delay under
Section 5 of the Limitation (provided the
dates mentioned in the order are correct and
true). However, the restoration was rejected
on the ground that it was not a restoration
application to restore the original case but it
is a restoration of restoration. This
misconception was created by the petitioner
in the mind of the Court while the facts
were not so.

16.

The
S.D.O.
Aliganj,
on
29.12.1997 knowing that a mistake has
been committed, recalled the order dated
25.6.1996 and allowed the restoration
application dated 8.7.1996 and fixed further
date for disposal. He found that he was
misled. Virtually against the order of
dismissal
on
4.8.1993,
a
restoration
application was moved and which was
allowed on 14.9.1994 and the original suit
was again dismissed on 7.11.1994. He
found that the order dated 25.6.1996 was
passed in misconception that even after the
rejection of a restoration application, an
application for restoration of the original
suit is being moved whereas only one
restoration application was pending to
recall
the
order
of
dismissal
dated
7.11.1994. Conceding the own mistake, the
Court itself recalled the order dated
25.6.1996 and allowed the restoration
application dated 8.7.1996 and fixed the
date for further proceeding.

17. This Court is of the view that
correcting/amending
the
mistake
committed by the Court itself is an
interlocutory order and it can be corrected
at any time either suo moto or on the oral
or in writing application of the either party
and against such order no revision would
lie.

18. In Raghunandan Vs. Narain Das
Balkrishna Das, 1950 ALJ 220 it is held
276 INDIAN LAW REPORTS ALLAHABAD SERIES
that neither a mistake nor an irregular
exercise of jurisdiction gives a ground for
interference.

19. In Beni Prasad Tiwari Vs.
Damodar Prasad Tiwari, 1979 AWC
(Rev) 37 it is held that mistake of fact, an
omission by trial court to record proper and
detailed reason is not a ground for revision.

20. By this order no injustice had
been caused to the petitioner. The effect of
the order of S.D.O. or the Commissioner
was only this that the original suit would be
disposed of on merit. This is also the basic
purpose of justice and the judicial system.
It appears that the petitioner does not want
disposal of original suit on merit, so he
preferred revision and thereafter restoration
application and caused more delay by filing
this writ petition. If the impugned orders
remain intact, no prejudice is caused to the
petitioner. For maintainability of a revision,
there must be a decision of any suit or
proceeding. Here no suit or proceeding has
been finally decided. The suit under
Section 229 B is still pending and even by
the impugned order it was not decided.
Therefore, the forum to prefer revision was
not available to the petitioner. In the cited
case the matter under Section 122B and
right of the petitioner under Section 122B
(4-F)
was
finally
and
completely
adjudicated by the S.D.O. Hence, the
revision was maintainable which should
have been decided on merit but in this case
it is not so. The petitioner has levelled the
charges against the revisional Court but to
establish the same he has not filed the
certified copies of the order-sheet to
establish that the date was fixed only for
order on stay application. Considering the
facts of the case this Court is also in
conformity with the view expressed by
Additional Commissioner expressed in his
order on 31.1.1998 that the petitioner wants
to keep the matter pending for an indefinite
period.

21. Facts of this case and the cited
case are not similar. Hence there was no
occasion to look into the legality and
propriety of the order of the lower Court
and there was no need to summon the
records of the lower Court only on this
ground that revision has been preferred. By
summoning the records the proceeding of
the Lower Court are discontinued and the
length of the case becomes too longer. Thus
this petition is devoid of the merit and is
dismissed with cost.

22. Let the copy of the judgment be
sent to the District Magistrate, Etah to
direct Additional S.D.O. Ist Aliganj, to
proceed with the case No. 122/15/71/1993
under Section 122 B of the U.P. Z.A. &
L.R. Act after affording the opportunity to
both the parties at the earliest as the matter
has already become so old.
----------
(2022) 12 ILRA 276
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE AJIT SINGH, J.

Writ C No. 28230 of 2022

Dinesh Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Udayan Nandan, Sri Shashi Nandan (Sr.
Advocate)

Counsel for the Respondents: