# Smt. Fatma Kubra v. Addl. Commissioner Administration Ayodhya & Ors

- **Citation:** (2022) 4 ILRA 789
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-21
- **Case number:** Writ-C No. 2095 of 2022
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-fatma-kubra-v-addl-commissioner-administration-ayodhya-ors-48324
- **Pages:** 9

## Headnote

A. Civil Law - U.P. Zamindari Abolition &
Land Reforms Act, 1950 - Section 143 -
Scope of power - in exercise of power u/s
143, the Sub-Divisional Officer can only
give a declaration that the land, of which a
declaration is sought, is being used for
purposes other than agriculture but it do
not give a right to the Sub-Divisional
Officer to delete the names of the
recorded tenure-holders or to change the
land use in such a manner that it can be
recorded as an 'abadi' land in Category
6(2) (Para 25, 35)

B. Civil Law -U.P. Zamindari Abolition &
Land Reforms Act, 1950 - Section 143 -
790 INDIAN LAW REPORTS ALLAHABAD SERIES
Use of holding for industrial or residential
purposes - Locus - an application seeking
declaration in terms of Section 143 can
only be moved by recorded tenureholder -
a person who is not recorded as a tenureholder
is
not
entitled
to
move
an
application u/s 143 of the U.P.Z.A. & L.R.
Act (Para 19)

C. Civil Law -U.P. Zamindari Abolition & L
Land Reforms Act, 1950 - Section 143 -
Recall - Ex-parte order - Application for
recall by third party - If an order is passed
behind the back of the person, who is
recorded tenure-holder, such person has a
right to file an application for recall to set
aside such order, if injustice is caused to
him - Even in the absence of any express
provision having regard to the principles
of natural justice, the courts will have
ample jurisdiction to set aside an ex parte
decree (Para 32, 33)

D. Constitution of India, 1950 - Article 226
- Writ - if by quashing of an illegal order,
another
illegality
revives
in
that
eventuality, the Court should not interfere
with
such
orders
under
the
writ
jurisdiction - If justice becomes the
byproduct of an erroneous view of law the
High Court is not expected to erase such
justice in the name of correcting the error
of law (Para 27)

Dismissed. (E-5)

List of Cases cited:

## Text

4 All. Smt. Fatma Kubra Vs. Addl. Commissioner Administration Ayodhya & Ors.
789
stop from filing an election petition as
being beyond limitation and thus the
petitioner's application under Section 5A of
the Act should be decided, cannot be
accepted in view of the findings recorded
by me hereinabove to the effect that the
only recourse available after the elections
are held is to file an election petition as
prescribed under Section 12C of the Act.

34. The judgment in the case of
Mohammad
Yunus
(supra)
does
not
consider the scheme of the Act and intent
of Section 12C of the Act and Article 243O
of the Constitution of India, thus, the same
cannot benefit the petitioner in any manner.

35. The judgment in the case of
Srimati Sarita Devi (supra) also does not
go into the question of available forum for
challenging the election and only decides
the issue of "office of profit" and thus
would not have any bearing on the present
case.

36. The judgment in the case of Smt.
Shyam Dulari Devi (supra) although does
not consider the issue of Chapter II-A and
Chapter III-A in detail, however, notices
the bar created by virtue of Article 243O of
the Constitution of India and Section 12C
of the Act and unequivocally holds that the
remedy is preferring election petition under
Section 12C of the Act when the occasion
to challenge the election arises.

37. The judgment in the case of
Andhra
Pradesh
State
Financial
Corporation (supra) will not have any
bearing on the case inasmuch as the
remedies available under the Act are
twofold; one which arise prior to holding of
the election and second which is provided
for after the elections are held. Thus, the
two
remedies
do
not
operate
simultaneously and in the same sphere, as
such, the said judgment has no applicability
in the present case.

38. In view of the findings as
recorded above and considering the scheme
of the Act, the relief as pressed by the
counsel for the petitioner cannot be
granted. The petition lacks merit and is
accordingly dismissed.
----------
(2022)04ILR A789
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.04.2022

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ-C No. 2095 of 2022

Smt. Fatma Kubra ...Petitioner
Versus
Addl.
Commissioner
Administration
Ayodhya & Ors. ...Respondents

Counsel for the Petitioner:
Amitesh Pratap Singh, Meera Jain

Counsel for the Respondents:
C.S.C., Aftab Ahmad, Mohan Singh, Yogesh
Singh

A. Civil Law - U.P. Zamindari Abolition &
Land Reforms Act, 1950 - Section 143 -
Scope of power - in exercise of power u/s
143, the Sub-Divisional Officer can only
give a declaration that the land, of which a
declaration is sought, is being used for
purposes other than agriculture but it do
not give a right to the Sub-Divisional
Officer to delete the names of the
recorded tenure-holders or to change the
land use in such a manner that it can be
recorded as an 'abadi' land in Category
6(2) (Para 25, 35)

B. Civil Law -U.P. Zamindari Abolition &
Land Reforms Act, 1950 - Section 143 -
790 INDIAN LAW REPORTS ALLAHABAD SERIES
Use of holding for industrial or residential
purposes - Locus - an application seeking
declaration in terms of Section 143 can
only be moved by recorded tenureholder -
a person who is not recorded as a tenureholder
is
not
entitled
to
move
an
application u/s 143 of the U.P.Z.A. & L.R.
Act (Para 19)

C. Civil Law -U.P. Zamindari Abolition & L
Land Reforms Act, 1950 - Section 143 -
Recall - Ex-parte order - Application for
recall by third party - If an order is passed
behind the back of the person, who is
recorded tenure-holder, such person has a
right to file an application for recall to set
aside such order, if injustice is caused to
him - Even in the absence of any express
provision having regard to the principles
of natural justice, the courts will have
ample jurisdiction to set aside an ex parte
decree (Para 32, 33)

D. Constitution of India, 1950 - Article 226
- Writ - if by quashing of an illegal order,
another
illegality
revives
in
that
eventuality, the Court should not interfere
with
such
orders
under
the
writ
jurisdiction - If justice becomes the
byproduct of an erroneous view of law the
High Court is not expected to erase such
justice in the name of correcting the error
of law (Para 27)

Dismissed. (E-5)

List of Cases cited:

1. Wasim Raza Khan. Vs Board of Revenue,
2014 (123) RD 107

2.Indrapal Singh Vs The Deputy Director of
Consolidation, Kheri & Anr 2019 (37) LCD 1233

3. Ram Prakash Agarwal & anr. Vs Gopi Krishan
& ors., 2013 (31) LCD 881

4. M/s. Ratna Sugar Mills Co. Ltd. Vs St. of U.P.
& ors., AIR 1966 Alld 34

5. Rabindra Singh Vs Financial Commissioner,
Cooperation, Punjab & ors., (2008) 7 SCC 663
(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Shri Amitesh Pratap Singh,
learned counsel for the petitioner, learned
standing counsel for the State-respondents,
Shri Mohan Singh, learned counsel for the
respondent No.3, Shri Aftab Ahmad,
learned counsel for the respondent No.11
and Shri Yogesh Singh, learned counsel for
the respondent No.5.

2. Learned counsel for the petitioner
has filed a supplementary affidavit after
serving a copy thereof on the learned
counsel for the State-respondents as well as
the private-respondents, which is taken on
record.

3. With the consent of the learned
counsel for the parties, the matter is being
disposed of at the admission stage itself.

4. Under challenge is the order dated
02.03.2022 passed by the Additional
Commissioner, Administration, Ayodhya
Division, Ayodhya, whereby the revision of
the petitioner has been dismissed and the
order dated 02.06.2010 passed by the SubDivisional
Officer,
Jalalpur,
District
Ambedkar Nagar has been upheld.

5. In order to appreciate the
controversy involved, certain facts giving
rise to the instant petition are being noticed
hereinafter, first.

6. The petitioner Smt. Fatma Kubra
initially moved an application before the
Sub-Divisional Officer, under Section 143
of the U.P. Z.A. & L.R. Act, wherein it was
stated that the petitioner has a house
constructed
over
Gata
No.1210(M)
measuring
0.006
hectares,
situate
at
Wajidpur Town, Pargana Surhurpur, Tehsil
Jalalpur, District Amebedkar Nagar, apart
4 All. Smt. Fatma Kubra Vs. Addl. Commissioner Administration Ayodhya & Ors.
791
from the house, the petitioner also has a
shop constructed over the land wherein she
is residing along with her family. It was
prayed that the Gata No.1210(M) has been
divided amongst the family members and
she has received her share and on her share,
she has raised construction. Since, the land
is being used for purposes other than
agriculture, accordingly, the land may be
declared as 'abadi'. The said application has
been brought on record as Annexure No.3.

7. Initially on the application moved
by the petitioner, a report was called for
which was filed on 30.01.2004. Upon an
inspection made by Naib Tehsildar, it was
found that Plot No.1210(M) was recorded
in the revenue records in the name of
Mehandi Hasan, Murtaza Husain, Raza
Husain and Abdul Hasan. Upon an
inspection, it was found that the aforesaid
Plot No.1210(M) had constructions and the
tenure holders had raised
residential
construction, which was in the shape of
'abadi' and it was also proposed in the
report that the land can be recorded under
the Category 6(2) as 'abadi'.

8. Considering the aforesaid report,
the Sub-Divisional Officer by means of the
order dated 31.03.2006 held that Gata
No.1210(M) measuring 0.003 hectares
which is recorded in the name of Mehandi
Hasan and others and is in the shape of an
'abadi' house, the same may be placed in
Category 6(2) as 'abadi' after deleting the
names of the other co-tenure holders.

9. This order dated 31.03.2006
became the subject matter of controversy
inasmuch
as
Mohasin
Raza,
Kalbe
Husain, Murtaza Husain, Zafar Husain
and Dawar Husain filed a revision against
the order dated 31.03.2006 whereas
simultaneously
Abdul
Hasan,
the
respondent No.5 moved an application
for recall of the order dated 31.03.2006.
The memo of revision preferred by the
some of the tenure holders as mentioned
above has been brought on record as
Annexure No.7 while the application for
recall moved by the respondent No.5 has
been brought on record as Annexure
No.8. Thus, it would be seen against the
order dated 31.03.2006 two proceedings
were initiated, one for recall by the
respondent No.5 and the other was a
revision preferred by the other tenure
holders.

10. During pendency of the revision
preferred, by few of the tenure holders,
the application for recall was considered
and heard by the Sub-Divisional Officer
concerned and the said order dated
31.03.2006 was set aside by means of the
order dated 02.06.2010. While passing of
the order dated 02.06.2010, the SubDivisional Officer passed an order that
the names of the co-tenure holders be
recorded and it be declared that the land
in question is being used for purposes
other than the agriculture. In view of the
order passed on 02.06.2010, the revision
which was preferred by some of the
tenure-holders also came to be dismissed
by means of the order dated 14.02.2022
on the ground that since the order dated
31.03.2006
already
stands
recalled,
therefore, the revision had been rendered
infructuous. The order dated 14.02.2022
dismissing the revision No.962/2008-09
preferred by some of the tenure-holders
has been brought on record along with
the supplementary affidavit filed by the
petitioner today.

11. Being aggrieved against the order
dated 02.06.2010, the petitioner preferred a
revision which was dismissed by means of
792 INDIAN LAW REPORTS ALLAHABAD SERIES
the order dated 02.03.2022. thus, these two
orders dated 02.06.2010 and 02.03.2022 are
under challenged before this Court.

12. The submission of the learned
counsel for the petitioner is that once the
order dated 31.03.2006 had been passed by
the Sub-Divisional Officer against which
some of the tenure-holders had filed a
revision bearing No.962/2008-09 and in
such circumstances, the Sub-Divisional
Officer concerned did not have right to
recall the order and as such the order dated
02.06.2010 was without jurisdiction.

13. It is further urged that the
revisional Court has also committed
manifest error in failing to consider this
aspect of the matter and by rejecting. Thus,
the issue involved requires indulgence of
this Court.

14. Learned counsel for the privaterespondents Shri Aftab Ahmad and Shri
Yogesh Singh have raised an issue that the
instant petition is not maintainable at the
behest of the petitioner. It is submitted by
Shri Aftab Ahmad that the petitioner, who
is not recorded tenure-holder was not
entitled to move an application under
Section 143 of the U.P.Z.A. & L.R. Act
inasmuch as such application seeking
declaration in terms of Section 143 of the
U.P.Z.A. & L.R. Act can only be moved by
recorded tenure-holder. It is further urged
that in exercise of powers under Section
143 of the U.P.Z.A. & L.R. Act, the SubDivisional Officer concerned can only give
a declaration after complying with the
necessary formalities and compliance of
Rules that the land of which a declaration is
sought is being used for purposes other
than agriculture. It is further urged that in
terms of Section 143 of the U.P.Z.A. &
L.R. Act, the consequences of an order
passed under Section 143 of the U.P.Z.A.
& L.R. Act has been provided but
nevertheless it cannot give a right to the
Sub-Divisional Officer to delete the names
of the tenure-holders or to change the land
use in such a manner that it can be recorded
as an 'abadi' land in Category 6(2). It is
thus,
urged
that
the
initiation
of
proceedings at the behest of the petitioner
was
completely
without
jurisdiction
including the order passed by the SubDivisional
Officer
dated
31.03.2006.
Moreover, the said recorded tenure-holders
were not impleaded and as soon as they
became aware, an application for recall
came to be filed. Once set of tenure-holders
preferred revision which remained pending
before the revisional authority, however,
during pendency of the said revision, since,
the order dated 31.03.2006 was recalled,
there was no requirement for any further
adjudication in the revision which came to
be dismissed as having become infructuous
by means of the order dated 14.02.2022.

15. Learned counsel, for the other set
of tenure-holders, Shri Yogesh Singh has
further taken the arguments forward on
behalf of the private-respondents to submit
that the petitioner has also not approached
the Court with clean hands inasmuch as in
the application seeking declaration under
Section 143 of the U.P.Z.A. & L.R. Act she
has stated in Paragraph-5 that she is
residing in the said house and she has
received the area in terms of settlement and
has raised constructions. It is urged that
while filing the writ petition, the petitioner
became aware of the fact that she was not
entitled to move an application in the first
place as she was not recorded tenureholder. She has sought to be improved her
case as in paragraph 5 of the writ petition,
it has been stated that the husband of the
petitioner is of unsound mind, therefore, in
4 All. Smt. Fatma Kubra Vs. Addl. Commissioner Administration Ayodhya & Ors.
793
the capacity of legal guardian of her
husband, the petitioner had moved an
application under Section 143 of the
U.P.Z.A. & L.R. Act.

16. It is further urged that insofar as
the
family
settlement/agreement
is
concerned, the same has also not been
brought on record and it was not open for
the petitioner to have instituted the petition
before the Sub-Divisional Officer and now
once the order dated 02.06.2010 has been
passed, which has been duly implemented
and actually restores the position by
declaring the land of Gata No.1210(M)
situate in Gram Wajidpur as being used for
purposes other than agriculture including
incorporating the names of the remaining
tenure-holders. Thus, substantial justice has
been done and even what has been sought
by the petitioner seeking declaration has
been allowed, consequently, the petitioner
does not have a right to assail the order in
the writ petition.

17. The Court has considered the rival
submissions and also perused the material
on record.

18. The emphasis laid by the learned
counsel for the petitioner while pressing the
petition is that against the order dated
31.03.2006, once a revision was pending
before the revisional authority, the SubDivisional Officer did not have powers to
recall
the
order
dated
31.03.2006.
However, the aforesaid submissions does
not impress the Court for the following
reason contained herein.

19. At the very outset, it will be
relevant to notice that an application under
Section 143 of the U.P.Z.A. & L.R. Act can
only be filed by the recorded tenure-holder.
For ready reference, Section 143 of the
U.P.Z.A. & L.R. Act is being reproduced
hereinafter:-

"143. Use of holding for industrial or
residential purposes. - [(1) Where a
[bhumidhar with transferable rights] uses
his holding or part thereof for a purpose
not connected with agriculture, horticulture
or animal husbandry which includes
pisciculture and poultry farming, the
Assistant Collector-in-charge of the subdivision may, suo motu or on an
application, after making such enquiry as
may be prescribed, make a declaration to
that effect.

(1-A) Where a declaration under subsection (1) has to be made in respect of a
part of the holding the Assistant Collectorin-charge of the sub-divisions may in the
manner prescribed demarcate such part for
the purposes of such declaration.]

(2) Upon the grant of the declaration
mentioned
in
sub-section
(1)
the
provisions of this chapter (other than this
section) shall cease to apply to the
[bhumidhar with transferable rights] with
respect to such land and he shall
thereupon be governed in the matter of
devolution of the land by personal law to
which he is subject.

[(3)
Where
a
bhumidhar
with
transferable rights has been granted,
before or after the commencement of the
Uttar Pradesh Land Laws (Amendment)
Act, 1978, any loan by the Uttar Pradesh
Financial Corporation or by any other
Corporation owned or controlled by the
State Government, on the security of any
land
held
by
such
bhumidhar,
the
provisions of this Chapter (other than this
section) shall cease to apply to such
bhumidhar with respect to such land and he
shall thereupon be governed in the matter
of devolution of the land by personal law to
which he is subject.]"
794 INDIAN LAW REPORTS ALLAHABAD SERIES

20. From the perusal of the aforesaid,
it would be clear that it is only a recorded
bhumidhar, who can make the said
application. Moreover, from the reading of
sub-section (2) of Section 143 of the
U.P.Z.A. & L.R. Act it indicates the
consequence of the declaration as made in
sub-section (1) is that the provisions of the
Chapter-VIII of the U.P.Z.A. & L.R. Act
shall cease to apply to the bhumidhar with
transferable rights and in respect to such
land and he shall be governed in the matter
of devolution of interest in the land by
personal law to which he is subjected to.

21. Thus, it is clear that apparently the
initiation of the provisions at the behest of
the petitioner was incorrect. Moreover, she
did not have a right to move an application
in the first place and what is most strange
that the Sub-Divisional Officer in its order
dated 31.03.2006 directed that the names of
the recorded tenure-holders to be deleted
and the land be recorded as 'abadi' under
Category 6(2). This kind of a direction in
the order, in proceedings under Section 143
of the U.P.Z.A. & L.R. is not known in
law. This exercise of jurisdiction by the
Sub-Divisional
Officer
was
patently
erroneous and without jurisdiction.

22. It is not disputed by the learned
counsel for the petitioner that while passing
the order the other tenure-holders were not
impleaded nor they were heard. This being
the situation where the tenure-holders, who
had been recorded in the revenue records
suddenly find that their names have been
deleted in proceedings under Section 143
of the U.P.Z.A. & L.R. definitely had a
right to make an application for recall. One
set of tenure-holders also filed a revision
bearing No.962/2008-09. It is also not
disputed by the learned counsel for the
petitioner that during pendency of this
revision, there was no interim order which
prevented
the
Sub-Divisional
Officer
concerned to adjudicate the application for
recall on merits.

23. It is only once the order dated
02.06.2010 was passed that the petitioner
preferred a revision which finally came to
be decided by means of the order dated
02.03.2022. In the aforesaid backdrop, it
cannot be said that the order impugned
dated 02.06.2010 was bad for want of
jurisdiction. The revisional Court has also
considered the issue appropriately and
taking the overall view has maintained the
order dated 02.06.2010. This exercise of
jurisdiction by the revisional Court does
not call for any interference.

24. Learned counsel for the petitioner
could not point out the illegality in the
orders especially when the order dated
02.06.2010 was in accordance with law
having restored the names of the recorded
tenure-holders and also directed that the
land in question be recorded in appropriate
column as being used for purposes other
than agriculture.

25. Learned counsel for the petitioner
could not give any explanation as to how in
a proceeding under Section 143 of the
U.P.Z.A. & L.R., could the Sub-Divisional
Officer order deletion of the names of
tenure-holders and direct the land in
question be recorded as 'abadi'. Thus, this
Court finds that the order passed by the
Sub-Divisional
Officer
is
legally
unsustainable.

26. There is another aspect of this
matter, which may be noticed that in case if
the order dated 02.06.2010 is interfered
with naturally it will have the effect of
reviving the order dated 31.03.2006.
4 All. Smt. Fatma Kubra Vs. Addl. Commissioner Administration Ayodhya & Ors.
795

27. It is now well settled that under
writ jurisdiction, the Court will not exercise
its powers to interfere in an order and set it
aside by an order, the ultimate effect of
which would be to revive or give rise to
another illegal order.

28. The Court is fortified in its view
in light of the decision in the case of
Wasim Raza Khan v. Board of Revenue,
2014 (123) RD 107, wherein it has been
held as under:-

"14. In view of the aforesaid legal
position, if the order dated 15.7.2013 is
interfered with and quashed, another
illegal order dated 30.4.2010 would revive.
It is settled that if by quashing of an illegal
order, another illegality revives in that
eventuality, the Court should not interfere
with
such
orders
under
the
writ
jurisdiction.

15. The view taken by me finds support
from the judgments of the Apex Court in
Gadde Venkateswara Rao Vs Government
of Andhra Pradesh & Ors. AIR 1966 SC
828, Champalal Binani Vs. CIT, West
Bengal AIR 1970 SC 645, Maharaja
Chintamani Saran Nath Shahdeo Vs. State
of Bihar & Ors. AIR 1999 SC 3609,
Mallikarjuna Mudhagal Nagappa & Ors.
Vs. State of Karnataka & Ors. AIR 2000 SC
2976,
Chandra
Singh
Vs
State
of
Rajasthan, AIR

7 2003 SC 2889, S.D.S. Shipping Pvt.
Ltd. Vs. Jay Container Services Co. Pvt.
Ltd. & Ors. 2003 (4) Supreme 44, State of
Uttaranchal & Anr. Vs. Ajit Singh Bhola &
Anr. (2004) 6 SCC 800 and State of Orissa
& Anr. Vs Mamata Mohanty, (2011) 3 SCC
436."

29. In Indrapal Singh v. The Deputy
Director of Consolidation, Kheri and
another,
2019
(37)
LCD
1233,
a
Coordinate Bench of this Court held as
under:-

"21. The jurisdiction vested in this
Court under Articles 226 and 227 of the
Constitution of India is to advance justice
and not to thwart it. The purpose and
object to exercise such a prerogative and
discretionary jurisdiction is to ensure that
no injustice is caused. Hon'ble Supreme
Court in the case of Roshan Deen vs. Preeti
Lal, reported in [(2002) 1 SCC 100] has
categorically held that "If justice becomes
the byproduct of an erroneous view of law
the High Court is not expected to erase
such justice in the name of correcting the
error of law".

22. Para 12 of the judgment in the
case of Roshan Deen (supra) is relevant to
be quoted herein, which is extracted
hereunder:

"We are greatly disturbed by the
insensitivity reflected in the impugned
judgment rendered by the learned single
Judge in a case where judicial mind would
be tempted to utilize all possible legal
measures to impart justice to a man
mutilated so outrageously by his cruel
destiny. The High Court non-suited him in
exercise of a supervisory and extraordinary
jurisdiction envisaged under Article 227 of
the Constitution. Time and again this Court
has reminded that the power conferred on
the High Court under Article 226 and 227
of the Constitution is to advance justice and
not to thwart it [vide State of U.P. v.
District Judge, Unnao, (AIR 1984 SC
1401)].
The
very
purpose
of
such
constitutional powers being conferred on
the High Courts is that no man should be
subjected to injustice by violating the law.
The look out of the High Court is,
therefore, not merely to pick out any error
of law through an academic angle but to
see whether injustice has resulted on
796 INDIAN LAW REPORTS ALLAHABAD SERIES
account of any erroneous interpretation of
law. If justice became the byproduct of an
erroneous view of law the High Court is
not expected to erase such justice in the
name of correcting the error of law."
(Emphasis supplied by the Court)"

30. Thus, in view of what has been
discussed herein, this Court is completely
satisfied that there is no error in either the
order dated 02.06.2010 passed by the
respondent No.2 which has been confirmed
in revision vide order dated 02.03.2022
passed by the respondent No.1, which has
been impugned in the instant petition.
Learned counsel for the petitioner also
could not satisfy as to how the initiation of
the proceedings at the behest of the
petitioner, who is not a recorded tenureholder, could have been entertained and as
to how and under what provisions, the SubDivisional Officer passed the order dated
31.03.2006.

31. Learned counsel for the petitioner
has relied upon a decision of the Apex
Court in Ram Prakash Agarwal and
another v. Gopi Krishan and others, 2013
(31) LCD 881, wherein relying upon
Paragraph-16, it has been urged by the
learned counsel for the petitioner that once
the proceedings stood concluded by the
Court of first instance an application for
recall by third party was not maintainable.
He has also relied upon a decision in the
case of M/s. Ratna Sugar Mills Co. Ltd. v.
State of U.P. & Ors., AIR 1966 Alld 34.

32. Insofar as the Ram Prakash
Agarwal's case (supra) is concerned, the
same has no applicability in the present
facts and circumstances of the case
inasmuch as in the present case, the
application under Section 143 of the
U.P.Z.A. & L.R. was preferred by the
petitioner on incorrect facts. Even treating
the application on its face value, the same
could not have been entertained by the Sub
Divisional
Officer
concerned
as
the
petitioner was not recorded tenure-holder
and even otherwise the order which has
been passed behind the back of the person,
who was recorded tenure-holder, who has a
right to file an application for recall to set
aside the injustice which was done by the
order dated 31.03.2006.

33. For the aforesaid reasons, the
decision of Ram Prakash Agarwal (supra)
does not come to the rescue of the
petitioner.

34. Moreover, in Rabindra Singh v.
Financial Commissioner, Cooperation,
Punjab and others, (2008) 7 SCC 663, the
Apex Court held as under:-

"19. A defendant in a suit has more
than one remedy as regards setting aside of
an ex parte decree. He can file an
application for setting aside the ex parte
decree; file a suit stating that service of
notice was fraudulently suppressed; prefer
an appeal and file an application for
review.

20. In Bhanu Kumar Jain v. Archana
Kumar [(2005) 1 SCC 787] this Court held
: (SCC p. 797, para 26)

"26. When an ex parte decree is
passed, the defendant (apart from filing a
review petition and a suit for setting aside
the ex parte decree on the ground of fraud)
has two clear options, one, to file an appeal
and another to file an application for
setting aside the order in terms of Order 9
Rule 13 of the Code. He can take recourse
to both the proceedings simultaneously but
in the event the appeal is dismissed as a
result whereof the ex parte decree passed
by the trial court merges with the order
4 All. Sidharth Singh & Anr. Vs. State of U.P. & Ors.
797
passed by the appellate court, having
regard to Explanation I appended to Order
9 Rule 13 of the Code a petition under
Order
9
Rule
13
would
not
be
maintainable. However, Explanation I
appended to the said provision does not
suggest that the converse is also true."

21. What matters for exercise of
jurisdiction is the source of power and not
the
failure
to
mention
the
correct
provisions of law. Even in the absence of
any express provision having regard to the
principles of natural justice in such a
proceeding, the courts will have ample
jurisdiction to set aside an ex parte decree,
subject of course to the statutory interdict."

35. Thus, taking a holistic view, this
Court finds that the Sub-Divisional Officer
had erred in deleting the names of privaterespondents/tenure holders and also to
declare the land in question as 'abadi' vide
order dated 31.03.2006. Moreover, in
absence of any stay order passed in revision
even if the Sub-Divisional Officer passed
orders on merits on recall application, the
same cannot be said to be faulty. Even
otherwise by means of the order dated
02.06.2010
the
declaration
has
been
granted as sought by the petitioner and the
deletion of names of other tenure-holders
has also been rectified which is an outcome
of sound exercise of jurisdiction by the
Sub-Divisional Officer and this order dated
02.06.2010 has been affirmed in revision
which requires no interfere.

36. In view of the aforesaid, the
petition is completely devoid of merits and
is accordingly dismissed. In the facts and
circumstances, there shall be no order as to
costs.
----------
(2022)04ILR A797
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.02.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Writ-C No. 2528 of 2022

Sidharth Singh & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nipun Singh

Counsel for the Respondents:
Sri A.K. Roy (Addl. C.S.C.), Sri M.J. Akhtar, Sri
P.K. Shukla

Civil Law - Constitution of India, 1950 -
Article 226, - Land Acquisition Act, 1894 -
Being predecessor-in-interest of deceased
land owner - after more than 40 to 50
years
petitioner
are
claiming
compensation - on account of possession
of their land taken by the St. Govt. way
back in the year 1970 - no issue raised by
the then owner or petitioners at any stage
- belated claim rejected - Writ Petition -
relying on the judgement of Hon'ble Apex
Court's in case of 'St. of Maharashtra Vs
Digambar' petitioners are not entitle to
any relief.(Para - 5, 7)

Writ Petition Dismissed. (E-11)

List of Cases cited: -

1. St. of Mah. Vs Digambar (AIR 1995 SC 1991)

2. Dharmbir & ors.Vs St. of Hary. & ors.(CWP
No. 4790 of 2015 Decided on Dt. 03.09.2015)

(Delivered by Hon'ble Rajesh Bindal, C.J. ,
& Hon'ble Piyush Agrawal, J.)

1. Challenge in the present petition is
to the order dated November 19, 2020 vide
which the claim of the petitioners for