# Smt. Jasoda Singh @ Yasoda Singh v. State of U.P. & Ors

- **Citation:** (2020) 12 ILRA 430
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-09
- **Case number:** Misc. Single No. 22981 of 2019
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-jasoda-singh-yasoda-singh-v-state-of-u-p-ors-45607
- **Pages:** 10

## Headnote

Constitution of India - Article 227 - U.P.
Revenue Code, 2006 - Section 116, Suit
for division of holding - Section 207, First
Appeal - S. 214, Applicability of Code of
Civil Procedure - Petitioner prayed that
partition suit filed u/s 116 filed by the
opposite parties be set aside & also the
interim order be quashed
- Held -
Alternate Remedy - adequate efficacious
statutory remedy of appeal is available
under Revenue Code against interim order
passed in partition suit - grounds urged in
petition under Article 227 can also be
urged before the Revenue court, who has
ample power to deal with the same & if
necessary has the power to reject the
12 All. Smt. Jasoda Singh @ Yasoda Singh Vs. State of U.P. & Ors.
431
plaint in terms of the order 7 Rule 11
C.P.C. - No interference under Article 227
(Para 32)

Writ Petition disposed Off. (E-5)

List of Cases cited: -

## Text

430 INDIAN LAW REPORTS ALLAHABAD SERIES

Relevant paragraph 2 of Circular
dated 24.10.2003 is reproduced as under :-

"2- fdlh Hkh fxjksg ds fo:)
dk;Zokgh djus ds fy, mlds fo:) dsoy mUgha
ekeyksa dks vkijkf/kd lwph esa lfEefyr ekuuk
pkfg, ftu ekeyksa esa iqfyl }kjk foospuk ds
mijkUr vkjksi&i= iszf"kr fd;k tk pqdk gS] ftu
ekeyksa esa vfUre fjiksVZ izsf"kr dh tk pqdh gS ;k
U;k;ky; }kjk fopkjk.k ds mijkUr vfHk;qDr dks
nks"keqDr fd;k tk pqdk gS] mls vkijkf/kd fooj.k
esa lfEefyr u fd;k tk;sA"

15. In view of the above, we are of
the considered view that the gang chart
dated 9.10.2020, copy of which is annexed
as Annexure No.2 to the writ petition was
prepared on the wrong information with
respect to the filing of the chargesheets in
the case crime numbers mentioned therein.

16. The impugned F.I.R. on the basis
of the aforesaid gang chart as such was
lodged on the basis of the wrong
information furnished in the gang chart as
noted above.

17. As such the writ petition in the
given facts and circumstances is hereby
allowed.

The impugned F.I.R. No.0430 of
2020 dated 13.10.2020, under Section 3(1)
of the U.P. Gangsters and Anti Social
Activities (Prevention) Act, 1986 registered
at Police Station Kotwali Dehat, District
Gonda as well as gang chart dated
9.10.2020, copy of which are annexed as
Annexure Nos.1 and 2 to the writ petition
are hereby quashed.

18. However, since it is submitted by
learned A.G.A. that now chargesheets in
Case Crime No.312 of 2019 and Case
Crime No.406 of 2020 against petitioners
have already been prepared and filed before
the court concerned meaning thereby that
in all the criminal cases as mentioned in the
gang chart, chargesheets against both the
petitioners have been filed as such we
hereby give liberty to the competent
authority to take a fresh decision in this
regard and do the needful.
----------
(2020)12ILR A430
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.12.2020

BEFORE

THE HON'BLE JASPREET SINGH, J.

Misc. Single No. 22981 of 2019
&
Misc. Single No. 7563 of 2020

Smt. Jasoda Singh @ Yasoda Singh
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Hemant Kumar Mishra, Arti Ganguly

Counsel for the Respondents:
C.S.C., Janardan Singh, Ravindra Kumar
Singh

Constitution of India - Article 227 - U.P.
Revenue Code, 2006 - Section 116, Suit
for division of holding - Section 207, First
Appeal - S. 214, Applicability of Code of
Civil Procedure - Petitioner prayed that
partition suit filed u/s 116 filed by the
opposite parties be set aside & also the
interim order be quashed
- Held -
Alternate Remedy - adequate efficacious
statutory remedy of appeal is available
under Revenue Code against interim order
passed in partition suit - grounds urged in
petition under Article 227 can also be
urged before the Revenue court, who has
ample power to deal with the same & if
necessary has the power to reject the
12 All. Smt. Jasoda Singh @ Yasoda Singh Vs. State of U.P. & Ors.
431
plaint in terms of the order 7 Rule 11
C.P.C. - No interference under Article 227
(Para 32)

Writ Petition disposed Off. (E-5)

List of Cases cited: -

1. Jacky Vs Tiny @ Antony & ors. 2014 (6) SCC 508

2. Virdudhunagar Hindu Nadargal Dharma
Paribalana Sabai & ors. Vs Tuticorin Educational
Society & ors. 2019 (9) SCC 538

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Sri Hemant Kumar Mishra,
learned counsel for the petitioner and Mrs.
Bulbul Godiyal, Senior Counsel assisted by
Sri Janardan Singh on behalf of contesting
opposite party nos. 6 and 7.

2. The opposite parties nos. 6 and 7 of
W.P. No. 22981 (MS) of 2019 namely Smt.
Prabhawati
and
Vijay
Kumar
have
instituted a petition under Article 227 of the
Constitution of India bearing No. 7563
(MS) of 2020 wherein a limited prayer has
been made that the Sub Divisional
Magistrate,
Tehsil
Tarabganj,
District
Gonda be directed to expeditiously decide
the case bearing No. T201908300603097;
under Section 116 of the U.P. Revenue
Code, 2006 (Smt. Prabhawati Singh and
Another Vs. Amar Bahadur Singh and
other) preferrably within a period of 3
months. In the aforesaid petition, Smt.
Jasoda Singh (the petitioner in the instant
petition) has been impleaded as opposite
party no. 4. Thus the said petition has been
connected with W.P. No. 22981 (MS) of
2019. Since the issue involved in present
petition will impact the grant of relief in the
other petitions, hence, both the petitions are
being decided by this common judgment
for the convenience the facts are being
noticed from W.P. No. 22981 of 2019.

3. The petitioner assails the order
dated 26.06.2019 passed by the SDM,
Tahsil, Tarabganj, District Gonda whereby
the Suit of the opposite party nos. 6 and 7
has been registered, notices were issued to
the defendants of the suit and further as an
interim measure, the parties have been
directed not to change the nature of the
property in question and also under
challenge is the institution of the suit itself
before the SDM under Section 116 of the
U.P. Revenue Code, 2006.

4. Primarily, it is the entire
proceedings which are under challenge,
however, for the sake of convenience, the
three main prayers sought by the petitioner
in the W.P. No. 22981 (MS) of 2019 are
reproduced for ready reference.

"(a) To issue a writ order or
direction in the nature of Certiorari for
quashing of the impugned order dated
26.06.2019 passed by the opposite party no. 2
and 3 on the application for interim relief filed
along
with
application
moved
under
Section116 of the Revenue Code contained as
Annexure No. 1 to the writ petition.

(b) To issue a writ order or
direction in the nature of mandamus
commanding the opposite party no. 2 and 3
to forthwith cancel/terminate the pending
proceeding initiated on the basis of
application moved by the Opposite Party
No. 6 and 7 under Section 116 of the Uttar
Pradesh Revenue Code, 2006 on the
ground that they had sold their right and
title of their part of Gata No. 291 situated
in Village Baghusra, pargana Mahadeva,
Tehsil Tarabganj, District Gonda after
executing sale deed in favour of the
Nandini
Committee
of
the
Nandini
Mahavidyalaya, run by the powerful
politician through registered sale deed
dated 02.07.2019.
432 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) To issue a writ order or
direction in the nature of Mandamus
commanding the Opposite Party No. 2 to 5
to not restrain the petitioner under the garb
of the order dated 26.06.2019 and allow
the petitioner to complete his roof work of
the constructed building."

5. The proposition canvassed by Sri
Hemant Mishra is two fold. Firstly, it is
alleged that the suit under Section 116 of
the U.P. Revenue Code, 2006 was not
maintainable at the behest of the opposite
party nos. 6 and 7 in light of the averment
contained in the suit itself and more
particularly in paragraph 4. The paragraph
4 of the plaint in suit (a copy of which has
been brought on record as Annexure No. 2)
is reproduced as under:-

"धारा ४- यह की वादीगण एवां
प्रजतवादीगण अपने अांश के मुताजबक वह
िी बाूँट के अनुसार काजबि दक्तखल चले
आ रहे हैं I"

6. It has been submitted that once the
opposite party nos. 5 and 6 in the suit itself
stated that on the basis of an oral
settlement/partition,
parties
were
in
possession of their respective shares, hence,
there was no question of the suit being
maintainable for partition.

7. The other ground urged by Sri
Mishra has further two limbs (i) the
opposite party nos. 6 and 7 had already sold
their share in the property in question in
favour of a Society which is controlled by
an influential Member of Parliament and
thus, the opposite parties nos. 6 and 7
having alienated and transferred, their right
were no more the Bhumidhar of the land in
question, accordingly, the suit filed by
them in terms of under Section 116 of the
U.P. Revenue Code, 2006 could not
proceed as the suit can only be prosecuted
by a bhumidhar against his co-sharers (ii)
the other limb on which Sri Mishra has
stressed is that the land in question in
respect of which the opposite party nos. 6
and 7 had filed the suit, of which the
petitioner was also a co-sharer and the
petitioner had got her share declared as
non-agricultural in terms of Section 80 of
the U.P. Revenue Code, 2006, hence, once
the land had lost the character of being an
agricultural land, therefore, the partition
/division of such property cannot be done
under Section 116 of the U.P. Revenue
Code, 2006 rather the opposite party nos. 5
and 6 ought to have taken recourse before
some other forum.

8. On the strength of the aforesaid
propositions, it has been urged by Sri
Mishra that for all the aforesaid reasons,
the suit filed before the SDM was neither
maintainable nor could proceed, hence, the
SDM, Tahsil, Tarabganj, District Gonda
exceeded his jurisdiction in entertaining the
suit and in passing an interim order on the
very first day.

9. It has further been alleged that all
this has been done only at the behest of the
influential Member of Parliament and in
the
aforesaid
circumstances,
the
proceedings being de-hors, the provisions
of law cannot sustain for a minute,
accordingly, not only the impugned order
dated 26.06.2019 deserves to be quashed
but so also the entire proceedings in the
shape of the pending suit under Section 116
of the U.P. Revenue Code, 2006 be
terminated/set aside.

10. Mrs. Bulbul Godiyal, learned
Senior
Counsel
while
refuting
the
submissions of the learned counsel for the
12 All. Smt. Jasoda Singh @ Yasoda Singh Vs. State of U.P. & Ors.
433
petitioner has submitted that relying upon
para 4 alone of the suit filed before the
SDM is quoting the actual facts out of
context. It is the complete and full plaint
which is to be read as a whole in order to
determine the nature of the cause of action
and the relief which has been prayed.

11. Mrs. Bulbul Godiyal has further
alleged that neither the suit is barred,
inasmuch as, on the date of the institution
of the suit, the opposite party nos. 6 and 7
were the Bhumidhar and the recorded
owners of the land in question and any
subsequent change or transfer of title is not
going to affect the suit. She has also urged
that merely because a declaration is issued
under Section 80 of the U.P. Revenue
Code, 2006 it would not change the nature
of the land in so far as the applicability of
Section 116 of the U.P. Revenue Code,
2006 is concerned. Moreover, the petitioner
while filing the instant writ petition did not
disclose the fact that the alleged order by
which the petitioner had got the land
declared as non-agricultural in terms of
Section 80 of the U.P. Revenue, 2006 had
already been stayed by the Commissioner
by means of order dated 03.10.2019.

12. It has also been submitted that the
petitioner is filing multiple petitions only to
harass the opposite party nos. 6 and 7 and
in the said petitions, the opposite party nos.
6 and 7 were not impleaded as a party. It
has been submitted that the land belonging
to opposite party nos. 6 and 7 is situated
towards the main road which has a higher
value and the petitioner in the garb of
raising constructions attempted to encroach
upon and usurp the land of the opposite
parties nos. 6 and 7 which prompted them
to institute a suit seeking a division. Since
the suit was registered and notices were
issued, the court concerned was well within
its domain and jurisdiction in the facts and
circumstances to pass an order directing the
parties not to change the nature of the land.
Such an order did not adversely affect the
rights of any of the parties rather it
protected the same, accordingly, the order
dated 26.06.2019 does not suffer from any
error and has been passed in sound exercise
of jurisdiction, whereas the petitioner has a
right to assail the aforesaid order before the
Court concerned.

13. Thus, it has been urged that the
petition filed by the petitioner deserves to
be dismissed whereas the petition filed by
the opposite parties nos. 6 and 7 under
Article 227 of the Constitution of India
bearing W.P. No. 7563 (MS) of 2020 be
allowed and the proceedings before the
SDM, Tehsil, Tarabganj, District Gonda be
expedited.

14. Sri Mishra in reply to the
aforesaid submissions has drawn the
attention of the Court to an order passed by
a Division Bench of this Court dated
18.07.2019 in W.P. No. 19436 (MS) of
2019. Sri Mishra has also taken the Court
through various orders which are said to
have been passed in a PIL (Civil) Petition
No. 14756 of 2018 which have been filed
with the writ petition and referring to the
aforesaid, it has been urged that the entire
State actually is working in cahoots with
the Member of the Parliament who is very
influential in the area and is running as
many
as
54
educational
institutions
managed by various societies which are
under his control and tutelage. In the
aforesaid backdrop, it has been submitted
by Sri Mishra that he has no faith of getting
any justice from the Court of the SDM,
Tehsil, Tarabganj, District Gonda. For all
the aforesaid reasons, he has prayed that
not only the impugned order dated
434 INDIAN LAW REPORTS ALLAHABAD SERIES
26.06.2019 be set aside but also the
proceedings in the shape of the Suit under
Section 116 of the U.P. Revenue Code,
2006 be terminated/quashed.

15. The Court has heard the learned
counsel for the parties at length and
carefully perused the record.

16. Before dealing with the respective
contentions, it will be apposite to note
relevant facts leading up to the writ petition
No. 22981 (MS) of 2019 which are relevant
for
effective
adjudication
of
the
controversy in between the parties.

17. Admittedly, one Sri Pateshwari
Singh was the recorded tenure holder of the
land in question. Sri Pateshwari Singh in
his lifetime had executed various sale deeds
in favour of different persons in respect of
his land holding of Gata No. 291. He also
executed a sale deed in favour of Sri Paras
Nath, the husband of the petitioner for an
area of 0.200 hectares. Later, Sri Paras
Nath Singh transferred the
aforesaid
property in favour of his wife Smt. Jasoda
Singh by means of a sale deed executed on
19.08.2014 and thus, the present petitioner
became the owner in respect of 0.0200
hectares of Gata No. 291.

18. Similarly, Sri Pateshwari Singh
had executed sale deeds in favour of the
other persons who have been impleaded as
opposite party nos. 1 to 6 in the suit. After
his death his remaining share in the
property devolved upon his wife and son
who are the opposite party nos. 6 and 7 and
who have a share of 0.1845 hectares which
is joint with the petitioner and opposite
party nos. 4, 6 to 9 of this petition.

19. From the record, it transpires that
the petitioner had made an application
under Section 80 of the U.P. Revenue
Code, 2006 for declaring her share as nonagricultural. The SDM concerned by means
of an order dated 20.05.2019 declared the
land of Gata No. 291 admeasuring 0.020
hectares as non-agricultural.

20. It is further pleaded that after the
land was declared as non-agricultural, the
petitioner had put a tin shed on certain part
of her land and was raising constructions to
complete her house and only the roof was
to be placed over the structure, however, in
the meantime, the SDM concerned on the
suit filed by the opposite party nos. 6 and 7
passed the ex-parte order dated 26.06.2019
and though it only directed the parties not
to change the nature of the land in question,
however, by using the influence, the
opposite party nos. 2 and 3 in connivance
with the opposite party no. 6 and 7 stopped
the construction of the petitioners.

21. It has also been submitted that the
opposite party nos. 6 and 7 in connivance
with the Member of Parliament as well as
with the aid of State Machinery is trying to
implement the order dated 26.06.2019 and
in the garb thereof intend to demolish the
construction of the petitioner. It has also
been pleaded that the petitioner had earlier
preferred a Writ Petition before a Division
Bench of this Court bearing W.P. No.
19436 (MB) 2019 wherein the Court as an
interim measure granted the aforesaid
protection, the relevant portion thereof
reads as under:-

"6.
We
hereby
direct
Superintendent of Police Gonda and
District Magistrate Gonda to ensure that
appropriate security, as required by facts
and circumstances, is provided to the
petitioner so that her rights on the
property,
in
case
established,
are
12 All. Smt. Jasoda Singh @ Yasoda Singh Vs. State of U.P. & Ors.
435
protected. Not only life and liberty of the
petitioner is required to be protected but
also use of her property is required to be
protected. In this regard relevant order be
passed/issued within three days of receipt
of certified copy of this order."

Shri Raj Baksh Singh shall
convey the order to Superintendent of
Police Gonda and District Magistrate
Gonda for immediate compliance."

22. It further transpires that the
aforesaid writ petition came to be allowed
finally by means of judgment dated
23.01.2020 and the relevant portion of the
said judgment dated 23.01.2020 reads as
under:-

"35. The order quoted above was
passed by this court in the given
circumstances and shows specific direction
on Superintendent of Police and the
District Magistrate, Gonda to ensure
appropriate security. It is not only
protection of life and liberty to the
petitioner but for use of property. The
official respondents were expected to
comply the directions aforesaid but they
initiated proceedings under Section 145 (1)
Cr.P.C. This is sufficient to show their
involvement
thus,
proceedings
under
Section 145 Cr.P.C. were stayed by the
Single Judge in Writ Petition No.22981
(M/S) of 2019. The fact given above shows
intervention of the court against the action
of official respondents for resorting to the
proceedings under Section 145 Cr.P.C.
instead
of
giving
protection
to
the
petitioner
and
her
family
members
pursuant to the order of this court dated
18.7.2019. It is alleged to be for the reason
that respondent no.11 is sitting Member of
Parliament and belongs to Ruling party.
Even if the allegation aforesaid are
ignored, the fact remains that the official
respondents have not acted in consonance
to the order passed by this court on
18.9.2019 and aforesaid is sufficient to
substantiate the allegation made by the
petitioner against them.

36. Taking overall facts into
consideration, we find merit in the writ
petition to direct the official respondents to
give an adequate protection to the
petitioner and their family members to save
their life and liberty.

37. The order given hereinabove
is not to affect any of the proceedings
pending before the revenue or civil court
rather those would be decided independent
to it based on the evidence lead by the
parties
therein
and
for
that
any
observations or finding herein would not
bind the court. The observations herein
have been made only to see whether the
case is made out for grant of relief to the
petitioner."

23. It is in the aforesaid backdrop that
the petitioner being aggrieved by filing of
the suit under Section 116 of the U.P.
Revenue Code, 2006, coupled with the
grant of exparte interim order has preferred
the instant petition. A coordinate Bench of
this Court by means of order dated
29.08.2019 had passed an order staying the
operation and effect of the order dated
26.06.2019 passed by the SDM concerned
and also directed that the proceedings
initiated under Section 145 Cr.P.C. also be
kept in abeyance.

24. Though various allegations and
counter allegations have been leveled by
the parties during the course of hearing and
the petitioner has chosen not to mince any
word in criticizing the SDM who has been
impleaded in his personal capacity as
opposite party no. 3 as well as the SHO,
Police Station, Wazirganj, District Gonda
436 INDIAN LAW REPORTS ALLAHABAD SERIES
as opposite party no. 5. However, the
allegations relates to mal-administration
and using of political influence at the
behest of the Member of Parliament,
however, surprisingly, the said Member of
Parliament has not been impleaded as a
party, though, it has been alleged by Sri
Mishra that the opposite party nos. 6 and 7
have also sold their share in respect of the
property in favour of a Society and a copy
of the sale deed has also been brought on
record as Annexure No. 9, however, the
said Society has also not been impleaded as
a party in the present petition.

25. Be that as it may, the point for
consideration before this Court is (i)
whether this Court in exercise of powers
under Article 226 can quash the order
passed by the SDM concerned so also the
entire proceedings of the suit filed under
Section 116 of the U.P. Revenue Code,
2006.

26. Before answering the aforesaid
issue, it will be relevant to notice the
decision of the Apex Court in the case of
Jacky Vs. Tiny Alias Antony and Others
reported in 2014 (6) SCC 508 wherein the
issue before the Apex Court was whether in
exercise of the powers under Article 226
and 227 of the Constitution of India can a
plaint be set aside.

27. The Apex Court considering the
earlier judgments of the Apex Court on the
aforesaid points in paragraphs 13 and 15
has held as under:-

"13. The nature and scope of
power under Article 227 of the Constitution
of India was considered by this Court in Jai
Singh v. MCD [(2010) 9 SCC 385 : (2010)
3 SCC (Civ) 782] . In the said case, this
Court held: (SCC pp. 390-91, para 15)

.........."15. We have anxiously
considered the submissions of the learned
counsel. Before we consider the factual and
legal issues involved herein, we may notice
certain
well-recognised
principles
governing the exercise of jurisdiction by
the High Court under Article 227 of the
Constitution of India. Undoubtedly the
High Court, under this article, has the
jurisdiction to ensure that all subordinate
courts as well as statutory or quasi-judicial
tribunals, exercise the powers vested in
them, within the bounds of their authority.
The High Court has the power and the
jurisdiction to ensure that they act in
accordance
with
the
well-established
principles of law. The High Court is vested
with the powers of superintendence and/or
judicial revision, even in matters where no
revision or appeal lies to the High Court.
The jurisdiction under this article is, in
some ways, wider than the power and
jurisdiction under Article 226 of the
Constitution of India. It is, however, well to
remember the well-known adage that
greater the power, greater the care and
caution in exercise thereof. The High Court
is, therefore, expected to exercise such
wide powers with great care, caution and
circumspection. The exercise of jurisdiction
must
be
within
the
well-recognised
constraints. It cannot be exercised like a
''bull in a china shop', to correct all errors
of judgment of a court, or tribunal, acting
within the limits of its jurisdiction. This
correctional jurisdiction can be exercised
in cases where orders have been passed in
grave dereliction of duty or in flagrant
abuse of fundamental principles of law or
justice."

"15. A petition under Article 226
or Article 227 of the Constitution of India
can neither be entertained to decide the
landlord-tenant
dispute
nor
is
it
maintainable against a private individual
12 All. Smt. Jasoda Singh @ Yasoda Singh Vs. State of U.P. & Ors.
437
to determine an intense dispute including
the question whether one party is harassing
the other party. The High Court under
Article 227 has the jurisdiction to ensure
that all subordinate courts as well as
statutory
or
quasi-judicial
tribunals,
exercise the powers vested in them within
the bounds of their authority but it was not
the case of the 1st respondent that the
order passed by the Munsif Court was
without
any
jurisdiction or
was
so
exercised exceeding its jurisdiction. If a
suit is not maintainable it was well within
the jurisdiction of the High Court to decide
the same in appropriate proceedings but in
no case power under Articles 226 and 227
of the Constitution of India can be
exercised to question a plaint."

28. The aforesaid issue regarding the
power of the High Court under Article 226
and 227 of the Constitution of India in
respect of vacating interim order passed by
the Civil Courts also came up before the
Apex Court in the Case of Virdudhunagar
Hindu Nadargal Dharma Paribalana
Sabai
and
Others
Vs.
Tuticorin
Educational Society and Others reported
in 2019 (9) SCC 538 wherein in paragraph
nos. 10, 11 and 13, the Apex Court has held
as under:-

"10. Primarily the High Court, in
our view, went wrong in overlooking the
fact that there was already an appeal in
CMA No. 1 of 2018 filed before the SubCourt at Tuticorin under Order 41, Rule
1(r) of the Code, at the instance of the fifth
defendant in the suit (third respondent
herein), as against the very same order of
injunction and, therefore, there was no
justification for invoking the supervisory
jurisdiction under Article 227.

11. Secondly, the High Court
ought to have seen that when a remedy of
appeal under Section 104(1)(i) read with
Order 43, Rule 1(r) of the Code of Civil
Procedure, 1908, was directly available,
Respondents 1 and 2 ought to have taken
recourse to the same. It is true that the
availability of a remedy of appeal may not
always be a bar for the exercise of
supervisory jurisdiction of the High Court.
In
A.
Venkatasubbiah
Naidu
v.
S.
Chellappan [A. Venkatasubbiah Naidu v. S.
Chellappan, (2000) 7 SCC 695] , this Court
held that "though no hurdle can be put
against the exercise of the constitutional
powers of the High Court, it is a wellrecognised principle which gained judicial
recognition that the High Court should
direct the party to avail himself of such
remedies
before
he
resorts
to
a
constitutional remedy".

"13. Therefore wherever the
proceedings are under the Code of Civil
Procedure and the forum is the civil court,
the availability of a remedy under the CPC,
will deter the High Court, not merely as a
measure of self-imposed restriction, but as
a matter of discipline and prudence, from
exercising its power of superintendence
under the Constitution. Hence, the High
Court ought not to have entertained the
revision under Article 227 especially in a
case where a specific remedy of appeal is
provided
under
the
Code
of
Civil
Procedure itself."

29. Thus, in the backdrop of the
aforesaid decisions, if the submissions of
the learned counsel for the petitioner is
noticed, it would indicate that the petitioner
has prayed that the suit filed by the
opposite parties nos. 6, 7 be set aside and
also the interim order dated 26.06.2019 be
quashed.

30. The U.P. Revenue Code is a selfcontained Act and Section 214 of the U.P.
438 INDIAN LAW REPORTS ALLAHABAD SERIES
Revenue Code, 2006 deals with the
applicability of the Code of Civil Procedure
and it reads as under:-

"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
Code of Civil Procedure, 1908 and the
Limitation Act, 1963 shall apply to every
suit, application or proceedings under this
Code.

31. Similarly, Section 207 of the U.P.
Revenue Code, 2006 deals with the First
Appeal in respect of final order/decree and
certain orders and aforesaid section reads
as under:-

"207. First Appeal:- (I) Any
party aggrieved by a final order or decree
passed
in
any
suit,
application
or
proceeding specified in [column 2] of the
Third Schedule, may refer a first appeal to
the Court or officer specified against it in
[Column 4], where such order or decree
was passed by a Court or officer specified
against it in (Column 3) thereof

(2) A first appeal shall also be
against an order of the nature specified-

(a) in Section 47 of the Code of
Civil Procedure, 1908; or

(b) in Section 104 of the said
Code; or

(c) In Order XLIII, Rule 1 of the
First Schedule to the said Code.

(3) The period of limitation for
filing a first appeal under this Section shall
be thirty days from the date of the order or
decree appealed against.

32. Thus, from the conjoint reading of
the aforesaid provisions, it is clear that in
so far as the first relief claimed by the
petitioner regarding quashing of the interim
order dated 26.06.2019 is concerned, the
petitioner has an adequate efficacious
statutory remedy of appeal. In so far as the
quashing of the suit is concerned on the
grounds urged by the learned counsel for
the petitioner and noticed hereinabove, this
Court is of the opinion that the aforesaid
grounds can also be urged before the court
concerned who has ample power to deal
with the same and if necessary has the
power to reject the plaint in terms of the
order 7 Rule 11 C.P.C.

33. In view of the aforesaid, this
Court deems appropriate not to deal with
and give any finding on the merits of the
submissions and propositions canvassed by
the learned counsel for the parties lest it
may adversely affect or prejudice the rights
of either of the parties before the Trial
Court.

34. The learned counsel for the
petitioner could not dispute the aforesaid
legal proposition in so far as availability of
adequate
statutory
remedy
and
the
applicability of C.P.C. proceedings under
the U.P. Revenue Code, 2006 is concerned.

35. The apprehension of the petitioner
in respect of opposite party nos. 2 and 3
can
also
be
ventilated
before
the
appropriate authorities in accordance with
law as the U.P. Revenue Code confers
powers including the power to transfer
proceedings from one Court to another and
even from one District to another.

36. Thus, taking a complete and
holistic view of the entire matter including
the directions given by the Division Bench
of this Court in para 37 of its judgment
dated 23.01.2020 passed in W.P. No. 19436
(M/B) of 2019, this Court is of the
considered opinion that the relief as prayed
12 All. Shiv Kumar Pandey Vs. State of U.P. & Ors.
439
by the petitioner cannot be granted at this
stage and the petitioner shall be at liberty of
appearing before the Court concerned and
raising all the objections before the Court
concerned. In case if any such objections
are taken by the petitioner, it is expected
that the opposite party no. 2 shall consider
and decide the matter expeditiously by
providing a complete opportunity of
hearing to the parties and decide it strictly
in accordance with law.

37. In light of the aforesaid, the Writ
Petition No. 22981 (MS) of 2019 stands
dismissed and the Writ Petition No. 7563
(MS) of 2020 is disposed of in terms of this
order.
----------
(2020)12ILR A439
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2020

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE PIYUSH AGRAWAL, J.

Writ - C No. 12338 of 2020

Shiv Kumar Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sachin Mishra, Sri Ram Vishal Mishra

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

(A) Civil law - U.P. Urban Planning &
Development Act, 1973 - Section 27 (1) -
Order of demolition of building - Section
43 - Services, of notices - mere possession
of a property for a long period will not
clothe the possessor with any legal right
that the possession is under a grant from
the State which is resumable - once
resumption of a Nazul property has been
made by the State, no person has any
right to occupy a Nazul property without
prior permission of the State. (Para -12,14)

A small piece of land occupied by petitioner
without any authority of law - lease made in
favour of the Company -expired number of
decades ago - never executed in favour of
petitioner or his grand father - land stood
resumed and the resumption of the said
property was held to be legal and valid on
26.11.2015 by the Apex Court. (Para -12)

HELD :- Petitioner does not have any right, title
or interest over the property in question.
Petitioner has failed to show his continuous
possession over the land in dispute. Demolition
of 2 tin-shed rooms illegally constructed by the
petitioner has been rightfully done after
following the due procedure provided under law.
(Para - 14)

Writ Petition dismissed. (E- 7)

List of Cases cited:-

1. Ravinder Kaur Grewal & ors. Vs Manjit Kaur &
ors. , Civil Appeal No. 7764 of 2014

2. Orissa Vs Ram Chandra Dev & an., AIR 1964 SC 685

3. State of Uttar Pradesh & ors. Vs United Bank
of India & ors., Civil Appeal No. 5254 of 2010

(Delivered by Hon'ble Shashi Kant Gupta,
J. & Hon'ble Piyush Agrawal, J.)

1. This writ petition has been, inter
alia, filed for the following relief:-

"i. Issue a suitable writ, order or
direction in the nature of mandamus
directing the respondents to restore the
construction of the house and pay
compensation,
which
was
illegally
demolished on 11.8.2020 at 4 p.m. by the
respondents in regard to the house of the
petitioner situated at 19 Clive Road Civil
Lines Prayagraj/Prayagraj."