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

- **Citation:** (2019) 2 ILRA 1822
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-20
- **Case number:** Writ C No. 23471 of 2019
- **Bench:** Anjani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santu-v-state-of-u-p-ors-44679
- **Pages:** 3

## Headnote

Reforms Act,1950 - Section 331(3) read
with Order 43 Rule 1 C.P.C. - order
rejecting recall application on the ground
of delay is appealable under Order 43
Rule 1 CPC before the Board of RevenueAlternative remedy available.

Writ Petition rejected (E-9)

## Text

1822 INDIAN LAW REPORTS ALLAHABAD SERIES
respondents that by mistake in the notice
under Section 3G(3), Section 3D was
mentioned but no corrigendum has been
issued. Moreover, the respondents have
not brought on the record the notice dated
29th April, 2018 in spite of filing a
supplementary counter affidavit.

26. For all the reasons mentioned above,
we find that the award dated 19th September,
2018 passed by the second respondent under
Section 3G of the Act, 1956 has been passed
without following the procedure prescribed
under Section 3G(3) of the Act, 1956, hence it
is quashed to the said extent. We grant liberty
to the petitioners to file objection in terms of
Section 3G(3) of the Act, 1956 before the
competent authority in respect of their +claim
that a construction is in existence and their
land is non-agricultural. The competent
authority shall consider their objections and
pass the award in accordance with law after
furnishing opportunity to the petitioners. The
said exercise be undertaken expeditiously,
preferably within four months from the date of
communication of this order.

27. Accordingly, the writ petition is
allowed. No order as to costs.
----------
(2019)10ILR A 1822

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2019

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.

Writ C No. 23471 of 2019

Santu ...Petitioner
Versus
State of U.P. & Ors. ...Respondents.

Counsel for the Petitioner:
Sri R.P.S. Chauhan

Counsel for the Respondents:
C.S.C., Sri Arun Kumar Srivastava

A. U.P. Zamindari Abolition and Land
Reforms Act,1950 - Section 331(3) read
with Order 43 Rule 1 C.P.C. - order
rejecting recall application on the ground
of delay is appealable under Order 43
Rule 1 CPC before the Board of RevenueAlternative remedy available.

Writ Petition rejected (E-9)

(Delivered by Hon'ble Anjani Kumar
Mishra, J.)

1. Heard Shri R.P.S. Chauhan, learned
counsel for the petitioner and Shri Arun
Kumar Srivastava for the Gaon Sabha,
respondent no.5 as also learned Standing
Counsel for the State-respondents.

2. The instant writ petition has been
filed seeking a writ of certiorari for quashing
the order dated 10.04.2019 passed by the
Additional Commissioner (Judicial) Bareily
Division, Bareilly refusing to condone the
delay in filing a restoration application for
recall of an order dated 27.01.2010, whereby
an appeal filed by the petitioner had been
dismissed for default.

3. The petitioner filed a suit under
Section 229B of the U.p Zamindari Abolition
and Land Reforms Act for declaration
claiming on the basis of a registered will
executed in his favour by one Nanuki.

4. The trial Court dismissed the suit vide
judgement and decree dated 19.12.2005.

5. The petitioner preferred an
appeal, which was dismissed for default
on
27.01.2010.
2 All. Santu Vs State of U.P. & Ors.
1823

6. A belated restoration application
accompanied by an application under
Section 5 of the Limitation Act was filed
on 21.01.2011.

7. The First appellate Court vide
order
dated
10.04.2019
refuseD
to
condone the delay of 1 year seven months
in filing the restoration application, on the
ground that the delay had not been
properly explained. As a consequence
thereof, the restoration application has
also been dismissed. Hence, this writ
petition.

8. The question for consideration in
this writ petition is whether , the petition,
is maintainable or whether it is barred by
existence
of
a
statutory
alternative
remedy.

9. It is not in issue that the
provisions of the Civil Procedure Code
are applicable to the proceedings under
Section 229B of the U.P. Zamindari
Abolition and Land Reforms Act.

10. The petitioner preferred an
appeal
before
the
Additional
Commissioner
(Judicial)
Bareilly
Division, Bareilly, which was dismissed
for default. This order necessarily was
one under Order 41 Rule 19 C.P.C. The
same Rule 19 provides that a restoration
application for recall of the order
dismissing the appeal. This belated
application has been rejected by the
impugned order.

11. The order rejecting the recall
application on the ground of delay in my
considered
opinion,
is
necessarily
appealable under Order 43 Rule 1(t). The
impugned order therefore, is necessarily
appealable before the Board of Revenue.

12. With regard to the above,
petitioner in the writ petition has stated
that an appeal was filed before the Board
of Revenue but the registry refused to
accept the same.

13. The averment made is a bald
averment not supported by any material
on record to show that an appeal was
actually preferred before the Board of
Revenue was not accepted by the registry.
In any case, the averment is that it was
refused orally. The bald allegation, in my
considered opinion, cannot be accepted.

14. The additional averment made in
the same paragraph of the writ petition is
that the appeal preferred by the petitioner
was maintainable under Section 207 Subsection 2 (c) of the Revenue Code, 2006.

15. However, this contention cannot
be accepted because Section 209 (b)
creates a bar against appeals being
preferred in certain circumstances. It
clearly prohibits an appeal against an
order granting or rejecting an application
for condonation of delay under Section 5
of the Limitation Act, 1963. The appeal
allegedly sought to be preferred by the
petitioner was therefore, entirely barred
by Section 209(b).

16.

However,
this
Court
is
constrained to hold that the provisions of
U.P. Revenue Code, 2006 are not
attracted to the case at hand, in view of
Section 231 of the Code itself, which
reads as follows -

"231. Applicability of the Code
to pending proceedings -(1) Save as
otherwise expressly provided in this Code,
all cases pending before the State
Government
or
any
revenue
court
1824 INDIAN LAW REPORTS ALLAHABAD SERIES
immediately before the commencement of
this Code, whether in appeal, revision,
review or otherwise, shall be decided in
accordance with the provisions of the
appropriate law, which would have been
applicable to them had this Code not been
passed.

(2) ................"

17. The suit filed by the petitioner was
one under Section 229B of the U.P.
Zamindari Abolition and Land Reforms
Act. Therefore, even the subsequent
proceedings arising therefrom would be
governed
by
the
provision
of
the
U.P.Zamindari Abolition and Land Reforms
Act despite its repeal and enforcement of
the U.P. Revenue Code, 2006.

18. Sub-section 3 of Section 331 of
the U.P. Zamindari Abolition and Land
Reforms Act provides for an appeal from
amongst others, also against an order of
the nature, mentioned in Order 43 Rule 1
C.P.C. Therefore, the petitioner has a
statutory alternative remedy of an appeal
against the order impugned and for this
reason alone, the instant writ petition is
not liable to be entertained.

19. Even if for the sake of argument,
it is accepted that an appeal will not lie
against the order impugned, the petitioner
definitely has the remedy of a revision
before the Board of Revenue under
Section 339 of the U.P. Zamindari
Abolition and Land Reforms Act.

20. The statutory alternative remedy
available to the petitioner has not been
availed.

21. Therefore, this writ petition is
dismissed on the ground of availability of
a statutory alternative remedy.
----------
(2019)10ILR A 1824

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.04.2019

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ C No. 42861 of 2014

Shahzad & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shesh Kumar, Sri Sunil Dubey.

Counsel for the Respondents:
C.S.C., Sri P.K. Singh, Sri Pradeep Kumar Singh.

A. Urban Land (Ceiling and Regulation) Act,
1976 - No material to show the voluntary or
forceful possession of the vacant land u/s
10(5) and 10 (6) - Petitioner also did not
receive compensation - State not authorised
to handover the land to the development
authority - proceeding initiated under Act,
1976 stood lapsed.

Held:- In the present case, we have found
that the petitioners are still in possession and
the State has not taken possession in
accordance with law, hence, we are of the
view that the State had no authority to
handover the possession to the Saharanpur
Development Authority. The Development
Authority has not brought on the record any
document or evidence that they have raised
any construction over the surplus land of the
petitioners which was transferred by the State
to Development Authority. Thus, in absence of
any averment or the documents to the said
fact, we have to hold that petitioners are still
in possession. (Para 39)

Writ Petition allowed (E-9)