# Mithru and others v. Commissioner Azamgarh Division, Azamgarh & Others

- **Citation:** (2012) 2 ILRA 942
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-23
- **Case number:** Civil Misc. Writ Petition No. 25704 of 2007
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mithru-and-others-v-commissioner-azamgarh-division-azamgarh-others-42310
- **Pages:** 3

## Headnote

U.P.Z.A & L.R. Act Rules-Rules-115-ACancellation of Patta-application filed
after
15
years-on
ground
the
construction not made within 3 years
whereas
the
constructions
were
demolished-being found in contravention
of U.P. Roadside Land Control Act 1945held-such order will not deprive the
petitioner from his ownership-however
petitioner restrained from raising any
construction on the part of land where
demolition made.

Held: Para 5

Application for cancellation having been
filed after about 15 years of allotment
was liable to be dismissed on this ground
alone. If under U.P. Road Side Land
Control Act order of demolition was
passed in respect of construction made
on part of the allotted land then it only
meant that petitioners were not entitled
to
make
construction
thereupon,
however, such order does not amount to
depriving the person concerned of his
ownership. Question of ownership in
proceedings under U.P. Road Side Land
Control Act is wholly irrelevant.

## Text

942 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
divorce even with regard to maintenance it
shall be obligatory on the part of family
court to make all efforts with regard to
conciliation or mediation and convince the
parties for settlement of their dispute
amicably. Breakage of family neither fulfill
the social requirement nor it is just and fair
in social interest.

9. In view of above, appeal deserves
to be allowed. Accordingly, impugned
judgement and decree dated 13.2.2008 is set
aside. The matter is remitted back to the
family court concerned. The family court
shall decide the case afresh in accordance
with law keeping in view the observation
made hereinabove expeditiously, say within
a period of six months.

10. Appeal is allowed. No order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Misc. Writ Petition No. 25704 of 2007

Mithru & Others

 ...Petitioner
Versus
Commissioner
Azamgarh
Division,
Azamgarh & Others
 ...Respondents

Counsel for the Petitioner:
Sri Govind Krishna

Counsel for the Respondents:
C.S.C.
Sri A.P. Singh
Sri Anuj Kumar
S.C.

U.P.Z.A & L.R. Act Rules-Rules-115-ACancellation of Patta-application filed
after
15
years-on
ground
the
construction not made within 3 years
whereas
the
constructions
were
demolished-being found in contravention
of U.P. Roadside Land Control Act 1945held-such order will not deprive the
petitioner from his ownership-however
petitioner restrained from raising any
construction on the part of land where
demolition made.

Held: Para 5

Application for cancellation having been
filed after about 15 years of allotment
was liable to be dismissed on this ground
alone. If under U.P. Road Side Land
Control Act order of demolition was
passed in respect of construction made
on part of the allotted land then it only
meant that petitioners were not entitled
to
make
construction
thereupon,
however, such order does not amount to
depriving the person concerned of his
ownership. Question of ownership in
proceedings under U.P. Road Side Land
Control Act is wholly irrelevant.

(Delivered by Hon'ble Sibghat Ullah Khan, J.)

1. Heard Sri Govind Krishna,
learned counsel for the petitioners and
Sri A.P. Singh, learned counsel for the
respondent No.3 and learned standing
counsel for respondents No.1, 2 and 4.

2. This Writ Petition is directed
against order dated 07.11.2002 passed
by Collector/ D.M. Azamgarh in Case
No.22 under Section 122-B/ Rule 115-P
of U.P.Z.A. & L.R., Act and Rules. The
said case was initiated on the complaint
of Asfaq Ahmad, the respondent No.3.
Through the impugned order allotment
of
land
by
Gaon
Sabha/
Land
Management Committee in favour of
the petitioner No.1 and father of
petitioners made in the year 1966-67
was cancelled. A small piece of land
had been allotted for constructing
2 All] Mithru and others V. Commissioner Azamgarh Division, Azamgarh & Others
943
house.
It
was
asserted
in
the
cancellation application that land in
dispute was rasta and construction had
not been made within three years as
required by Rule 115-Q. It was also
pleaded that under U.P. Road Side Land
Control Act, 1945 no construction could
be made on the land as it was within
prohibited distance from a regulated
road. It is also mentioned in the
impugned order that during pendnecy of
suit in the year 1983 petitioner started
making constructions hence proceedings
under U.P. Road Side Land Control Act
were initiated against the petitioners
which were decided on 30.08.2006
against the petitioners. Through order
dated 30.08.2006 constructions were
directed to be removed and were
subsequently
removed.
It
is
also
mentioned that the land in dispute was
entered as usar in the land revenue
record. It is also mentioned in the said
order that according to the report of
Niab Tehsildar dated 14.07.1983, the
land was being used as rasta. Plot
number of the land in dispute is 198,
area 33 kari (about 160 square yard).

3. In para-3 of the writ petition, it
is mentioned that 50 kari was allotted to
the petitioner No.1 on 17.07.1966 and
52 kari was allotted in favour of father
of petitioners on 11.03.1967, total 102
karis (about 500 square yards) under
Section 115-M of U.P. Z.A. & L.R.
Rules. Accordingly, it is clear that the
impugned orders relate only to part of
the allotted land. In para-6 of the writ
petition it is mentioned that first
application for cancellation was filed on
03.02.1981 which was dismissed on
22.08.1983.
Thereafter,
another
application
was
filed,
which
was
allowed by the impugned order dated
07.11.2002. It is not mentioned that
when the second application was filed
which was decided by order dated
07.11.2002.

4. Against order dated 07.11.2002
petitioner No.1 filed revision (No.97/A
of 2006-07), which was dismissed on
11.04.2007
by
Commissioner,
Azamgarh Division, Azamgarh. Said
order has also been challenged through
this writ petition.

5. Application for cancellation
having been filed after about 15 years of
allotment was liable to be dismissed on
this ground alone. If under U.P. Road
Side Land Control
Act
order
of
demolition was passed in respect of
construction made on part of the allotted
land then it only meant that petitioners
were not entitled to make construction
thereupon, however, such order does not
amount
to
depriving
the
person
concerned of his ownership. Question of
ownership in proceedings under U.P.
Road Side Land Control Act is wholly
irrelevant.

`
6. Accordingly, Writ Petition is
allowed. Impugned orders are set aside.
However it is clarified that the portion
over
which
constructions
were
demolished after passing of the order
dated 30.08.2006 under U.P. Road Side
Land Control Act, petitioners shall not
make any construction however the said
land will continue to belong to them.
---------
944 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.08.2012

BEFORE
THE HON'BLE MANOJ MISRA, J.

Criminal Revision No. - 2560 of 2012

Sanjay Somani

 ...Petitioner
Versus
State of U.P. & another ...Respondents

Counsel for the Petitioner:
Sri Vishal Jaiswal

Counsel for the Respondents:
A.G.A.

Criminal
Revision-summoning
order
challenged under section 200 recordedsummoning order after 15 years itself
barred
by
limitations-held-Branch
manager of Bank itself be treated
complaint-and
the
delay
caused
by
Court-complainant can not be blamedheld-summoning
order
justifiedobservation regarding prompt action on
complaint made-to sub serve the very
purpose of code.

Held: Para 5 and 8

As regards the contention that the
proceedings were barred by limitation, I
am of the view that if the complaint was
made within the period of limitation, the
complainant has done what he could do.
It is for the Court thereafter to proceed
and issue process. Accordingly, if the
Court delays issuance of process the
complainant cannot be penalized for the
delay on part of the Court. The Apex
Court in the case of Japani Sahoo Vs.
Chandra Shekhar Mohanty, reported in
(2007) 7 SCC, 394 held that the relevant
date,
for
computing
the
period
of
limitation under Section 468 CrPC, is the
date on which the complaint is filed for
initiating criminal proceedings and not
the date of taking cognizance by a
Magistrate or issuance of process by a
Court.

With regards to the submission that the
statement of Jitendra Nath Trivedi could
not have been relied, as he was neither
examined in Court nor he presented the
complaint, I am of the view that this
would not make a material difference at
the
stage
of
summoning.
It
is
noteworthy that the complaint was
presented on behalf of Allahabad Bank,
which is a public sector bank constituted
under
the
Banking
Companies
(Acquisition & Transfer of Undertakings)
Act, 1970, which is a Central Act.
Moreover it is a Government Company
under section 617 of the Companies Act.
Therefore, by virtue of Section 21 clause
Twelfth of Indian Penal Code read with
Section 2(y) of the Code of Criminal
Procedure, its branch Manager, who
presented the complaint, would be a
"public servant" and, as such, by virtue
of the decision of the Apex Court in the
case
of
National
Small
Industries
Corporation Ltd. V. State (NCT of Delhi)
(2009) 1 SCC 407 (vide paragraphs 16,
19 and 20 of the judgment) the benefit
of the proviso to Section 200 CrPC i.e.
exemption from examination of the
complainant and the witnesses, would
be available, even though Allahabad
Bank
(the
Company)
was
the
complainant.
Accordingly,
the
summoning order cannot be faulted on
this ground as well.
Case law discussed:
(2007) 7 SCC, 394; (2009) 1 SCC 407

(Delivered by Hon'ble Manoj Misra, J.)

1. Heard learned counsel for the
revisionist and learned A.G.A for the
State.

2. By this revision application, the
revisionist has challenged the summoning
order dated 18.7.2012 passed by the First
Special Metropolitan Magistrate (1st
Class), Kanpur Nagar in Complaint Case