# Ram Kumari v. State of U.P. & Ors - **Citation:** (2023) 5 ILRA 1155 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2023-05-24 - **Case number:** Writ-C No. 2607 of 2023 - **Bench:** Rajan Roy, Manish Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kumari-v-state-of-u-p-ors-50155 - **Pages:** 5 ## Headnote A. Civil Law - Registration Act, 1908 - Section 38 - UP Jail Manual, 2022 - Para 654 - Execution and registration of saledeed - Vender, who want to sell the land, is in jail - Mandamus sought - High Court directed the Registrar/Sub-Registrar to act in accordance with Section 38 of the Registration Act, 1908 and himself go to Jail in which the convict is confined and 1156 INDIAN LAW REPORTS ALLAHABAD SERIES take appropriate steps for registration of the said sale deed. (Para 11) Writ petition disposed of. (E-1) ## Text 5 All. Ram Kumari Vs. State of U.P. & Ors. 1155 institution of any suit by any person having right in the holding in a competent court. The person can be private, individual or even the State. Here reference to the definition of "person" contained in the General Clauses Act-1897 can also be made. Section 2(42) of the said Act defines "person" in the following terms:- "2(42)- "Person" shall include any company or association or body of individuals, whether incorporated or not." 47. The definition of "person" is not exclusive but inclusive and considering the language used in the Statute with reference to the proceedings giving rise to the present case, in the opinion of the Court, the "State" would fall in the definition of "person" who having failed to challenge the impugned orders by means of writ petition, on one hand, and accepting the same as valid as aforesaid, before this Court by means of the counter affidavit and advancing arguments, the challenge made to the impugned orders at the behest of a stranger (petitioner) having no concern with the property in dispute is liable to be discarded. 48. This Court is of the considered view that this is not a fit case where any of the exceptions stands attracted requiring interference in exercise of powers under Article 226 of the Constitution of India, particularly, when the main party to be aggreived by the impugned orders or by the nature of relief claimed in the original proceedings under Sections 33/39 of the Act-1901 is the ''State of U.P' which, on the one hand, has not challenged the impugned orders and, on the other hand, has acquised to the orders impugned by terming them as based upon documentary evidence and perfectly, in accordance with law. 49. The petitioner, apart from having no locus in the matter and even otherwise, having failed to make a case for interference in view of the record of "bhumidhari rights" setttled in favour of the private respondents and other beneficiaries and further in the light of law laid down by the Apex Court and this Court, I am not inclined to interfere in the orders impugned. 50. The writ petition is, accordingly, dismissed. No order as to costs. ---------- (2023) 5 ILRA 1155 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 24.05.2023 BEFORE THE HON'BLE RAJAN ROY, J. THE HON'BLE MANISH KUMAR, J. Writ-C No. 2607 of 2023 Ram Kumari ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Vikas Chandra Dwivedi Counsel for the Respondents: C.S.C., Prachish Pandey A. Civil Law - Registration Act, 1908 - Section 38 - UP Jail Manual, 2022 - Para 654 - Execution and registration of saledeed - Vender, who want to sell the land, is in jail - Mandamus sought - High Court directed the Registrar/Sub-Registrar to act in accordance with Section 38 of the Registration Act, 1908 and himself go to Jail in which the convict is confined and 1156 INDIAN LAW REPORTS ALLAHABAD SERIES take appropriate steps for registration of the said sale deed. (Para 11) Writ petition disposed of. (E-1) (Delivered by Hon'ble Rajan Roy, J. & Hon'ble Manish Kumar, J.) 1. Let the Sub-Registrar, Malihabad, Lucknow be impleaded as an opposite party during course of the day. 2. Petitioner is the mother of Budhi Lal, who has been convicted of the offence under Section 302 read with 34 I.P.C. in Sessions Trial No. 471 of 2010 (Case Crime No. 577 of 2009), Police Station Malihabad, District Lucknow and is in prison. 3. Petition has been filed seeking following relief:- "i) Issue a writ, order or direction in the nature of Mandamus thereby commanding and directing the opposite party no. 2 i.e. District Magistrate, Lucknow to decide the representation of the petitioner dated 29.08.2022 and permit to the petitioner to get execution of registered power of attorney from her son namely Budha Lal @ Budhi Lal in the interest of justice." 4. We had heard this matter at length on earlier date i.e. 06.4.2023 and passed the following order :- "This petition has been filed seeking following main prayer:- "(i) Issue a writ, order or direction in the nature of mandamus thereby commanding and directing the opposite party No.2 i.e. District Magistrate, Lucknow to decide the representation of the petitioner dated 29.08.2022 and permit to the petitioner to get execution of registered power of attorney from her son namely Budha Lal @ Budhi Lal in the interest of justice." Petitioner is mother of Budha Lal @ Budhi Lal, who has been convicted in S.T. No.471 of 2010 arising out of Case Crime No.577 of 2009, under Section 302 read with 34 IPC, Police Station- Malihabad, District- Lucknow and has been sentenced to death subject to its confirmation by the High Court. On account of which, he is in jail. Son of the petitioner, who is convict as of now, owns some land and he has not been able to challenge his conviction before the High Court on account of paucity of funds. The petitioner-mother says that if a Power of Attorney is executed by her son in her favour for selling of his land, then sale consideration can be used for contesting the judgement before the High Court. In these circumstances, this petition has been filed. Learned counsel for the petitioner relies on Section 38 of the Registration Act, 1908, which reads as under:- "38. Persons exempt from appearance at registration-office.?(1) (a) A person who by reason of bodily infirmity is unable without risk or serious inconvenience to appear at the registration-office, or (b) a person in jail under civil or criminal process, or (c) person exempt by law from personal appearance in Court, and who would but for the provisions next hereinafter contained be required to appear in person at the registration-office, shall not be required so to appear. (2) In the case of every such person the registering officer shall either himself go to the house of such person, or to the jail in which he is confined, and examine him or issue a commission for his examination." 5 All. Ram Kumari Vs. State of U.P. & Ors. 1157 According to the said provisions, a person who by reason of bodily infirmity is unable without risk or serious inconvenience to appear at the registrationoffice or a person in jail under civil or criminal process, shall not be required so to appear, i.e., the appearance referred in Section 36 & 37 of the said Act, 1908 for the purposes of registration. The contention is that Sub-Registrar may visit the son of the petitioner in jail for registration of the Power of Attorney. We are of the opinion that it is the son who has to decide as to whether he wants to execute a Power of Attorney in favour of his mother for the purpose preferred in the petition or not and if he does, then a power of attorney will have to be executed and will have to be signed by the son of the petitioner and such other persons as may be required in law. We find that exemption from appearance at the registration office is only for the purpose of registration but unless the Power of Attorney is executed as per the desire of the petitioner's son, who is in jail, there is no question of Sub-Registrar visiting the son in jail for the aforesaid purpose of registration. We find that as per Para 654 of U.P. Jail Manual, 2022 there is a provision, according to which every prisoner may at the discretion of the Superintendent be permitted to sign and attest a Power of Attorney or other statements, conveyances concerning his properties. If the said provision is operative, then, the Superintendent of Jail where the son of the petitioner is lodged should ask him as to whether he wants to execute any Power of Attorney and if he does, then, the opposite parties shall arrange for execution of such Power of Attorney and its signature by the son of the petitioner and thereafter, the Sub-Registrar with whom Power of Attorney is to be registered will have to be intimated by the petitioner and the Jail Authorities concerned whereupon he shall exercise his powers under Section 38 of the Registration Act, 1908. Let this exercise be done and the Court be informed about the result on the next date. Having said so we find that the reason for execution of Power of Attorney as noticed hereinabove is quite disturbing. If the son of the petitioner is in jail and he does not have requisite finances to file an appeal or to engage a private counsel, then, an appeal can be preferred from Jail itself and the Superintendent of Jail and other Authorities can give him proper advice in the matter. We accordingly, direct that the District Legal Aid Services Authority and its Secretary at Lucknow shall look into the matter and do the needful in this regard. The District Judge, Lucknow is directed to verify facts in light of averments made in the writ petition and do the needful so far as provision of legal aid to the convict is concerned. The details of the criminal case in respect to which he is lodged in Jail, have been mentioned in this order and also in the memo of writ petition. The Superintendent of Jail where the son of the petitioner is lodged shall also do the needful and inform the Court accordingly. The Senior Registrar of this Court at Lucknow to communicate this order to the District Judge, Lucknow and also Secretary, District Legal Aid Services Authority along with photo copy of this writ petition only for the aforesaid purpose. Name of Shri Pracheesh Pandey, learned A.G.A. shall be printed whenever the case is next listed along with learned Chief Standing Counsel and he shall also apprise the Court about the result of the aforesaid exercise on the next date and communicate this order to the Jail Superintendent concerned for compliance. 1158 INDIAN LAW REPORTS ALLAHABAD SERIES Put up this case on 26th April, 2023." 5. Learned Standing Counsel does not have instructions as to what steps have been taken by the Secretary, District Legal Aid Services Authority and the District Judge, as was ordered. 6. As regards the other issue of registration of sale deed, petitioner counsel says that sale deed has been prepared and now it is to be signed by the son of the petitioner, who is in prison. 7. Record reveals that the Senior Registrar of this Court has communicated our order dated 06.04.2023 to Secretary, District Legal Aid Services Authority and District Judge, Lucknow, however, it is not clear as to what steps have been taken by them in this regard. 8. In view of our earlier order, the District Legal Aid Services Authority shall provide proper advise to the convict referred hereinabove as also assistance, if necessary, for filing an appeal against his conviction through an Advocate on the panel of said authority, unless off-course the convict wants to engage a private lawyer. If he is agreeable to file an appeal through a panel lawyer, then the Jail Superintendent shall inquire from him as to whether he still wants to sell his land for the purposes of filing the appeal, if he does not, then off-course, the matter shall rest and execution & registration of the sale deed, as suggested by the petitioner would not be required, however, if he says that he wants to sell the land, if it is recorded in his name, then, further action would be required. In this context, we find that there is a provision in para 654 in U.P. Jail Manual, 2022, which reads as under:- " Permission to sign documents:- Every prisoner may at the discretion of the Superintendent be permitted to sign and attest a power of attorney or other statements, conveyances concerning his properties." 9. Learned Standing Counsel says that the Jail Manual, 2022 is in operation. 10. We may also refer, in this regard, to the provisions of Section 38 of the Registration Act, 1908, which reads as under:- "38. Persons exempt from appearance at registration-office:- (1) (a) A person who by reason of bodily infirmity is unable without risk or serious inconvenience to appear at the registration-office, or (b) a person in jail under civil or criminal process, or (c) person exempt by law from personal appearance in Court, and who would but for the provisions next hereinafter contained be required to appear in person at the registration-office, shall not be required so to appear. (2) In the case of every such person the registering officer shall either himself go to the house of such person, or to the jail in which he is confined, and examine him or issue a commission for his examination." 11. After the Jail authorities facilitate the execution & signing of the document of the sale deed as per para 654 of U.P. Jail Manual, 2022, the Jail Superintendent and the petitioner shall inform the Registrar/Sub Registrar for appropriate steps under Section 38 of the Registration Act, 1908 and the said Registrar/SubRegistrar would act in accordance with 5 All. D.B. Kauser Vs. State of U.P. & Ors. 1159 Section 38 of the Registration Act, 1908 and shall himself go to Jail in which the convict is confined and take appropriate steps for registration of the said sale deed. 12. Let the exercise of execution and signing of sale deed be completed within fifteen days of receipt of certified copy of this order, if the occasion so arises and, thereafter, for the purposes of registration of the said document, the Sub Registrar, Malihabad,Lucknow or whosoever is the the Sub Registrar having jurisdiction over the matter would visit the District Jail, Lucknow, where the son of the petitioner is said to be lodged within fifteen days so that the sale deed is registered in terms of the aforesaid provisions unless there is any legal impediment in this regard in which case, he shall inform the Jail Superintendent in writing, who in turn shall inform the son of the petitioner. 13. Ms. Shagun Srivastava, Holding Brief appearing for the State shall communicate this order to concerned for compliance. 14. The Senior Registrar of this Court at Lucknow shall communicate this order to the District Judge, Lucknow and Secretary, District Legal Aid Services Authority, Lucknow for compliance. 15. Petition is disposed of in the aforesaid terms. ---------- (2023) 5 ILRA 1159 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 10.05.2023 BEFORE THE HON'BLE KSHITIJ SHAILENDRA, J. Writ-C No. 6183 of 2016 D.B. Kauser ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Ms. Rollie Kausar, Sri Ravi Kant, Ms. Seema Aggarwal, Sr. Advocate Counsel for the Respondents: C.S.C., Sri H.P. Singh, Sri Nisheeth Yadav, Not Known, Sri Prakash Chandra Srivastava, Sri Prakash Chandra Srivastava, S.C., Sri Sriprakash Singh A. Civil Law - U.P. Urban Planning & Development Act-1973 - Section 41(3)- Once the Commissioner, in his order dated 02.05.1994, held the constructions raised by the respondent no.5 as unauthorized, illegal and contrary to law and the said order, though challenged by means of writ petition, but the challenge failed in terms of dismissal of the petition on 16.12.2005 and then order dated 30.01.2006 passed by the Commisisoner on review was further set aside by this Court on 14.05.2012 and was not interferred with by the Supreme Court while dismissing Special Leave Petition on 09.11.2012, there is nothing on record to show or establish that the constructions raised by the respondent no.5 were lawful. The effect of these orders cannot be ignored whether the order impugned is an order on merit or simply an order of remand-The dispute travelled from a personal tussle in between the private persons on the spot to the District Adminstration, then Police Authorities, then Development Authority, then Commissioner of the Division, then this Court in various writ petitions, then again the Commissioner, followed by another intervention by this Court, then Supreme Court and, thereafter, revision before the State Government giving rise to the present writ petition. Once, the land became disputed in this manner, then, even as per the Development Authority, compounding is not permissible-Insofar as the direction of remand is concerned,