# Defendant/ v. Additional District Judge, Gorakhpur and others

- **Citation:** (2009) 3 ILRA 1133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-12-22
- **Case number:** Civil Misc. Writ Petition No. 64215 of 2009
- **Bench:** Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendant-v-additional-district-judge-gorakhpur-and-others-41403
- **Pages:** 4

## Headnote

Sri Ashish Agarwal
Sri A.K. Gupta

U.P. Zamindari and Land Reform ActSection
3
(14)-Nature
of
landagricultural
land-lease
for
running
factory in the year 1950-on non payment
of premium Civil Suit before Civil Court
up to Second Appeal finalized between
the parties-now objection so long the
user of land is not declared otherwise
under provisions of law it will remain
agricultural
land-held-misconceivedeven subsequent suit is barred by
principle of res-judicate.

Held: Para 7

The revisional court has recorded a
categorical finding that in the land a
factory
and
buildings
have
been
constructed and it is no more land. It
ceases to be the land prior to the
commencement of the U.P.Z.A. & L.R. Act
and, therefore, the provision of the
U.P.Z.A. & L.R. Act does not apply and in
the circumstances the revisional court
has rightly held that the nature of the
property
was
not
the
land
for
agricultural purposes and, therefore,
there was no question of referring the
matter to the revenue court for deciding
the nature of the land.
Case law discussed:
1971 R.D. 160, 1992 R.D. 258 (S.C.).

## Text

3 All] M/s Mahabir Jute Mills Ltd. V. A.D.J., Gorakhpur. and others
1133
6. It is, therefore, evident that the
respondent no.6 was absent for more than
a year and the entire tenure of a Shiksha
Mitra in a session is 11 months.
Accordingly, the order passed by the
Basic Education Officer on 22nd July,
2008 was in accordance with the said
government order. It did not require any
review at his hand. The order dated
15.10.2008 proceeds on an erroneous
assumption and is untenable in the eyes of
law. Even otherwise also it has been
passed in violation of principles of natural
justice.

7. The writ petition is, therefore,
allowed and the order dated 15.10.2008 is
set-aside. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2009

BEFORE
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 64215 of 2009

M/s. Mahabir Jute Mills Ltd.

 ...Defendant/Petitioner
Versus
Additional District Judge, Gorakhpur and
others

 ...Plaintiffs/Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava

Counsel for the Respondents:
Sri Ashish Agarwal
Sri A.K. Gupta

U.P. Zamindari and Land Reform ActSection
3
(14)-Nature
of
landagricultural
land-lease
for
running
factory in the year 1950-on non payment
of premium Civil Suit before Civil Court
up to Second Appeal finalized between
the parties-now objection so long the
user of land is not declared otherwise
under provisions of law it will remain
agricultural
land-held-misconceivedeven subsequent suit is barred by
principle of res-judicate.

Held: Para 7

The revisional court has recorded a
categorical finding that in the land a
factory
and
buildings
have
been
constructed and it is no more land. It
ceases to be the land prior to the
commencement of the U.P.Z.A. & L.R. Act
and, therefore, the provision of the
U.P.Z.A. & L.R. Act does not apply and in
the circumstances the revisional court
has rightly held that the nature of the
property
was
not
the
land
for
agricultural purposes and, therefore,
there was no question of referring the
matter to the revenue court for deciding
the nature of the land.
Case law discussed:
1971 R.D. 160, 1992 R.D. 258 (S.C.).

(Delivered by Hon'ble Rajes Kumar, J.)

1. The present writ petition is
directed
against
the
order
of
the
Additional District Judge, Court No. 8,
Gorakhpur, dated 8.9.2009, passed in
Civil Revision No. 158 of 2008, filed
against the order of the Civil Judge (Jr.
Divn.), Gorakhpur, dated 10.1.1996.

2. The brief facts of the case are that
the plaintiff-respondents filed a Suit No.
94 of 1988 claiming relief for the decree
of possession over the property in dispute.
The defendant-petitioner filed a written
statement in the year 1995. The trial court
has framed 12 issues, out of which issue
no. 8 was framed as a preliminary issue to
the effect as to whether the court has
jurisdiction to try the suit. When the trial
court proceeded to decide issue no. 8,
referred herein above, it was felt that it is
necessary to decide whether the property
1134 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
in dispute is the land as defined under
Section 3(14) of the U.P. Zamindari
Abolition and Land Reforms Act (called
the U.P.Z.A. & L.R. Act' only) because
the same could not be decided by the civil
court and could only be decided by the
revenue court. The trial court, vide order
dated 10.1.1996, instead of deciding issue
no. 8, framed a fresh issue no. 13 to the
effect that as to whether the land in suit is
the land as defined under Section 3 (14)
of the U.P.Z.A. & L.R. Act and referred
the matter to the Assistant Collector,
Gorakhpur, for giving the finding in this
regard and it has been observed that issue
no. 8 will be decided after receipt of
finding on issue no. 13. Against the said
order, the respondents filed revision on
9.11.2001 along with an application under
Section 5 of the Limitation Act, which
was registered as Case No. 499 of 2001.
The case was transferred to the Additional
District Judge, Court No. 11, Gorakhpur,
for disposal. The petitioner filed a
detailed objection against the application
under Section 5 of the Limitation Act.
The Additional District Judge allowed the
application and condoned the delay, vide
order dated 2.8.2008 and sent back the
record to the District Judge, Gorakhpur,
for hearing on admission. On receipt of
the record, the case has been registered as
Civil Revision No. 158 of 1988 in the
court of District Judge, Gorakhpur, and
the hearing for admission was fixed. The
said revision has been admitted on
12.1.2009 after hearing both the parties.
After admission the revision was listed for
hearing on merit. The said revision was
again
transferred
to
the
court
of
Additional District Judge, Gorakhpur, for
hearing and disposal.

3. The Additional District Judge has
allowed the revision, vide impugned order
dated 8.9.2009 and set aside the order
dated 10.1.1996. The revisional court has
held that the nature of the property was
not land, inasmuch as the building of the
factory has been constructed. It is further
held that the Allahabad High Court in a
proceeding relating to the eviction and
recovery of arrears of land revenue has
held that the property in dispute consists
of mill and buildings and its nature is not
land and, therefore, there was no question
of referring the matter to the revenue
court for decision.

Being aggrieved by the order the
petitioner filed the present writ petition.

4. Heard Sri Arvind Srivastava,
learned counsel for the petitioner and Sri
A.K. Gupta, learned counsel, appearing
on behalf of the respondents.

5. Learned counsel for the petitioner
submitted that the revision itself was not
maintainable against the order dated
10.1.1996 as by the said order the case
has
not
been
decided.
He
further
submitted that the land was recorded as
agricultural land in a revenue record and
unless a declaration is made under Section
143 of the U.P.Z.A. & L.R. Act changing
the land use, it continues to be agricultural
land and to adjudicate the issue it was
necessary to consider whether the nature
of the property is the land as defined
under the U.P.Z.A. & L.R. Act and the
trial court has rightly referred the matter
to the revenue court for the decision. He
submitted that the revisional court has not
considered whether the revision against
the order dated 10.1.1996 is maintainable
or not. In respect of the contention he
relied upon the decision of this Court in
the case of Alauddin alias Makki v.
Hamir Khan reported in 1971 R.D. 160
3 All] M/s Mahabir Jute Mills Ltd. V. A.D.J., Gorakhpur. and others
1135
and the case of Chandrika Singh &
others v. Raja Vishwanath Pratap Singh
& another reported in 1992 R.D. 258
(S.C.).

6. Sri A.K. Gupta, learned counsel
for the respondents, submitted that the
property has been leased out on 15.2.1935
for manufacturing purposes. He submitted
that when the suit was filed for eviction
and arrears of rent, a dispute has been
raised by the present petitioner that the
civil court had no jurisdiction to entertain
the suit as the land was for agricultural
purposes. The plea of the petitioner has
been rejected in the suit. The first appeal
filed by the petitioner has been rejected
and thereafter the petitioner filed Second
Appeal No. 302 of 1953 before this Court.
This Court, vide order dated 7.1.1964, has
rejected the plea of the petitioner. The
said order has become final between the
parties and, therefore, it was not open to
the petitioner to raise the same plea in the
present suit. He further submitted that at
no stage the petitioner has raised any plea
that the revision against the order dated
10.1.1996 is not maintainable. The
petitioner has been heard at the stage of
admission and at the stage of final hearing
of the revision. In both the stages this plea
has not been taken. This plea has also not
been taken in the memorandum of
revision and, therefore, it is not open to
the petitioner to raise such plea and the
same cannot be entertained. He submitted
that the nature of the property ceases to be
land in the year 1935 itself prior to the
commencement of the U.P.Z.A. & L.R.
Act and, therefore, the provision of the
U.P.Z.A. & L.R. Act does not apply.

7. Having heard learned counsel for
the parties, I have considered the rival
submissions and perused the impugned
order. I do not find substance in the
argument of learned counsel for the
petitioner. It is not in dispute that the
property in dispute has been given on
lease on 15.2.1935 for manufacturing
purposes and it authorised the petitioner
to put up a mill or a factory on a land, if
so desired. On the said land the factory
and the building was constructed. When
the rent was not paid for the period from
January, 1950 to 15.1.1951, the suit was
filed in the year 1951. In the suit it was
pleaded by the petitioner that the suit was
not maintainable as the nature of the
property was agricultural land and the
civil court has no jurisdiction to entertain
the suit. Such plea has been rejected by
the trial court, in the first appeal and in
the second appeal by this Court. This
Court in the order dated 7.1.1964 has
observed that the land was leased out for
manufacturing purposes and the land in
dispute was not "land" as the lease was
obviously not for agricultural purposes,
the suit was properly filed in the civil
court. The order of this Court is between
the same parties and, therefore, binding
upon the petitioner. In the circumstances,
it is not open to the petitioner to raise the
same plea, viz. that the suit is not
maintainable as the property in dispute is
the land for agricultural purposes. The
revisional court has recorded a categorical
finding that in the land a factory and
buildings have been constructed and it is
no more land. It ceases to be the land
prior to the commencement of the
U.P.Z.A. & L.R. Act and, therefore, the
provision of the U.P.Z.A. & L.R. Act
does not apply and in the circumstances
the revisional court has rightly held that
the nature of the property was not the land
for agricultural purposes and, therefore,
there was no question of referring the
1136 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
matter to the revenue court for deciding
the nature of the land.

8. So far as the question of
maintainability is concerned, I find that
no ground has been taken in the
memorandum of revision in this regard.
The petitioner has not taken this plea at
the time of admission of the revision and
even at the time of hearing of the revision
and, therefore, such plea cannot be
entertained at this belated stage and is,
accordingly, rejected.

9. For the reasons stated above, I do
not find any merit in this writ petition. In
the result the writ petition fails and is
dismissed. However, the trial court is
directed to decide the suit preferably
within one year from the date of
presentation of a certified copy this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2009

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE KASHI NATH PANDEY, J.

Civil Misc. Writ Petition No. 32682 of 2009

Union of India and others ...Petitioners
Versus
Ishwari Narayan Singh ...Respondent

Counsel for the Petitioner:
Sri Ashok Nigam (Addl. Solicitor General)
Sri K.C. Sinha (Asstt. Solicitor General)
Sri Rakesh Sinha
Sri Ajay Bhanot

Counsel for the Respondents:
Sri Avnish Tripathi

(A) Central Civil Services (Classification
Control & Appeal Rules 1965-Rule 10(1)-
(6)-Review of suspension order-prior to
expiry of the period of 90 days-heldmandatory-period of 90 days will count
from the date of release on from the date
of communication of release-date of
release is 6.7.2005 90 day expired on
5.10.2005-Committee
reviewed
the
suspension on 5.9.2005-well within time
suspension
order
requires
no
interference-Tribunal committed wrong
by setting a-side the same.

Held: Para 19 & 23

In view of the foregoing discussions, we
are satisfied that requirement of review
within 90 days as required by sub-rule
(6)
and
the
provisions
that
the
suspension order shall not be valid after
a period of 90 days unless it is extended
for a further period before expiry of 90
days, clearly makes the requirement of
review mandatory and in breach of
which the suspension becomes invalid.

From the papers brought on record, it is
clear that suspension dated 21.12.2004
was required to be reviewed within 90
days i.e. before 21.3.2005 which was not
done. Suspension thus, in view of what
we have said above, became invalid after
21.3.2005.
Case law discussed:
(1995) 1 UPLBEC 460, (2003) 6 SCC 516, 2006
(3) Administrative Total Judgments 11, AIR
1957 S.C. 917, 2001 (6) SCC, (1994) 1
Supreme Court Cases 754.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Dr. Ashok Nigam, learned
Additional Solicitor General of India,
assisted by Sri Ajay Bhanot for the
petitioners and Sri Avnish Tripathi,
learned
counsel
appearing
for
the
respondent.

2. Counter and rejoinder affidavits
having been exchanged between the
parties, with the consent of the learned