# Mahaveer & Ors v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 852
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-10
- **Case number:** Writ-C No. 18993 of 2023
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahaveer-ors-v-state-of-u-p-ors-50775
- **Pages:** 7

## Headnote

Civil Law - Civil Procedure Code,1908 -
Section 152 - Application under Section 152
CPC seeking correction of accidental omission in
vesting order dated 07.04.1993 - Earlier sale
deed declared void by Civil Court - Collector
rejecting recall application as not maintainable -
Collector failed to appreciate applicability of
Section 152 CPC in view of Section 341 of
U.P.Z.A. & L.R. Act, 1950 and Section 214 of
U.P. Revenue Code, 2006 - Judgment in
Surajbhan Sharma and Sharma Singh binding -
Civil Suit No.18/2015 decreed; St. was party
therein - Impugned order unsustainable - Matter
remitted to Collector to decide application on
merits.

Writ petition allowed in part.

Case Law Discussed:

## Text

852 INDIAN LAW REPORTS ALLAHABAD SERIES
न्यायालय में वाद प्रस्तुत करे नामान्तरण प्राथकना पत्र बतौर
सरबराकार एवं जवरासतन जवियपाल रस, बहोरोदास, िगतानन्द
जनरस्त जकये िाते है। पत्रावली वाद आवश्यक कायकवाही दजिल
दफ्तर की िायें।

एस०िी०

तहसीलदार "

9. Considering the fact of pendency of
the suit under section 92 of Civil Procedure
Code as well as the provisions contained
under section 92 of Civil Procedure Code
there is no question for implementation of
the order of Tahsildar dated 9.6.1993
passed under section 34 of U.P. Land
Revenue Act as complete procedure has
been provided in respect to the suit under
section 92 of Civil Procedure Code for
maintenance
of
the
property
during
pendency of the suit.

10. Since the suit under section 92
of Civil Procedure Code is pending, as
such, appropriate application can be filed
in the pending suit, under Section 92 of
C.P.C. rather implementation of the
direction passed in summary proceeding
under section 34 of U.P. Land Revenue
Act.

11. No interference is required in the
matter.

12. The writ petition is dismissed,
accordingly.
----------
(2023) 9 ILRA 852
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2023

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ-C No. 18993 of 2023
Mahaveer & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Harish Yadav

Counsel for the Respondents:
C.S.C.

Held -
Civil Law - Civil Procedure Code,1908 -
Section 152 - Application under Section 152
CPC seeking correction of accidental omission in
vesting order dated 07.04.1993 - Earlier sale
deed declared void by Civil Court - Collector
rejecting recall application as not maintainable -
Collector failed to appreciate applicability of
Section 152 CPC in view of Section 341 of
U.P.Z.A. & L.R. Act, 1950 and Section 214 of
U.P. Revenue Code, 2006 - Judgment in
Surajbhan Sharma and Sharma Singh binding -
Civil Suit No.18/2015 decreed; St. was party
therein - Impugned order unsustainable - Matter
remitted to Collector to decide application on
merits.

Writ petition allowed in part.

Case Law Discussed:

1. Surajbhan Sharma Vs St. of U.P. & ors., Writ
Petition
No.58827
of
2011,
decided
on
21.10.2011

2. Sharma Singh anr. Vs St. of U.P. & ors.,
Writ-C
No.29898
of
2014,
decided
on
28.05.2014

3. M.S. Ahlawat Vs St. of Har., (2000) 1 SCC
278

4. Jai Narain Vs Chhedalal, AIR 1960 All 385

Important Provisions Referred:

1. Section 152, Civil Procedure Code, 1908

2. Section 214, U.P. Revenue Code, 2006

3. Section 341, U.P. Zamindari Abolition and
Land Reforms Act, 1950
9 All. Mahaveer & Ors. Vs. State of U.P. & Ors.
853
Writ petition allowed in part - Impugned
order dated 15.04.2023 set aside - Matter
remanded to Collector, Gautam Budh
Nagar to decide application under Section
152 CPC on merits within 3 months -
Notice to be issued to interested parties
before final decision.

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

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.
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
854 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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 StateGovernment 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
9 All. Mahaveer & Ors. Vs. State of U.P. & Ors.
855
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. - 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-counteraffidavit 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. 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
856 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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
9 All. Mahaveer & Ors. Vs. State of U.P. & Ors.
857
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 saledeed 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.
----------
858 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 9 ILRA 858
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-C No. 21618 of 2022

Smt. Meeru Seth ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Adya Prasad Tewari, Sri Bal Krishna Rai

Counsel for the Respondents:
C.S.C., Sri Pankaj Kumar Gupta

Held
-
Civil Law - U.P. Revenue Code Rules, 2016
- Rule 103 - Transfer of land belonging to
Scheduled Caste persons to a member of the
non-SC category without prior permission of the
Collector is void under Section 104 read with
Section 105 of the U.P. Revenue Code, 2006.
However, under Rule 103 of the U.P. Revenue
Code Rules, 2016, it is the Sub-Divisional
Officer (SDO) who is exclusively empowered
to adjudicate such matters. The order dated
23.06.2022 passed by the Collector, District
Jaunpur, without jurisdiction, declaring the
lease deed void, is thus vitiated in law and liable
to be quashed.

Collector cannot assume powers of SDO unless
such action is justified with valid reasons under
Section 19 of the Code. Rule 103 does not
confer concurrent jurisdiction on the Collector.

Legal Principle:

Where a statute specifically designates an
authority to decide a matter, higher authorities
cannot usurp such jurisdiction unless expressly
empowered.

Administrative
practicality
cannot
override
statutory mandate.

Writ Petition Allowed.

Case Law Discussed:

1. Statutory interpretation of U.P. Revenue
Code, 2006 - Sections 4(8), 13(3), 19, 98, 104,
105, 210

2. U.P. Revenue Code Rules, 2016 - Rules 102,
103

(Delivered by Hon'ble Saurabh Srivastava, J.)

(1) Heard Sri Adya Prasad Tewari,
learned counsel for the petitioner and Sri
Dhananjai Singh, learned Standing counsel
appearing on behalf of respondent no. 1, 2
and 8 along with Sri Pankaj Kumar Gupta,
learned counsel for Gaon Sabha who has
been especially called upon by the Court
for assisting the matter related to the
complex question of law raised by learned
counsel for the petitioner.

(2) The present petition has been
instituted for challenging the order dated
23.06.2022 passed by respondent no. 2
under the proceedings initiated under
Section 104 and 105 of U.P. Revenue
Code,
2006.
While
adjudicating
the
proceedings instituted by an alien person
one Mr. Santosh Kumar Jaiswal who has
been arrayed as respondent no. 3 in the
instant petition, who is having a role as an
informant before the respondent no. 2 for
transfer
which
has
been
made
by
respondent no. 4 to 7 in favour of the
petitioner, for treating it being void in
terms of Section 104 and 105 of the U.P.
Revenue Code of 2006, making it clear that
the petitioner being purchaser of plot no. 4,
5-m,
6
and
7
situated
at
Gram
BusanpurTehsil Kerakat, District Jaunpur
by way of lease deed instituted on
19.12.2018 executed by respondent no. 4 to
7 and as such he had never been a party