# Suresh Kumar Upadhyay and another v. State of U.P. and another

- **Citation:** (2002) 1 ILRA 163
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-12-03
- **Case number:** Civil Misc. Writ Petition No. 14073 of 2000
- **Bench:** R.H. Zaidi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-kumar-upadhyay-and-another-v-state-of-u-p-and-another-39457
- **Pages:** 3

## Headnote

Constitution of India, Article 226-Writ
Petition challenging the validity of order
passed u/s 23/39 of Land Revenue Act, -
held not maintainable.

Held - Para 5

It is well settled in law that against the
orders passed under Sections 33/39 of
the U.P. Land Revenue Act, a petition
under Article 226 of the Constitution of
India is legally not maintainable. A
reference in this regard may be made to
the decisions of this Court in Narain
Singh
Vs.
Additional
Commissioner,
Meerut and others, reported in (1999) 2
CRC page 342, Brahma Deo and others
Vs. Board of Revenue, U.P. and others,
reported in 1986 R.D. page 302 and Jai
Pal Singh Vs. Board of Revenue and
others, reported in 1956 A.W.R. 518.

## Text

1All] Suresh Kumar Upadhyay and another V. State of U.P. and another
163
2. The trial is pending before the fast
tract Court. Fast Tract does not mean
injustice to the accused. There is a
specific direction by this Court by its
order dated 3.12.2001 to supply a copy of
the statement of the complainant to the
accused before framing the charge. The
application filed on behalf of the accused
that his counsel has gone out to Lucknow
in connection with a marriage and will not
be available on the date on which the fast
Tract Court is framing charge. It was also
contended as a fact that copy of the
statement under Section 161 Cr.P.C. of
the complainant was not provided to him
as yet.

3. In the circumstances, the order
framing charge ought not to have been
passed by the trial court. The dispensation
of Justice should not be made post haste.
It must give an indication that justice is
being done not only for the sake of doing
it but also must appear to have been done
to the party, who is going to be affected
by this kind of dispensation of justice.
The trial court is, therefore, directed to
provide a copy of the statement of the
complainant for which he is entitled under
the law under Section 207 Cr.P.C.

4. It is a sessions trial. As a matter of
fact even the commitment could not be
made unless the papers under Section 207
are provided to the accused persons.
Section 207 (iii) Cr.P.C. provides as
under:

"(iii) the statements recorded under subsection (3) of Section 161 of all persons
whom
the
prosecution
proposes
to
examine as its witnesses, excluding there
from any part in regard to which a
request for such exclusion has been made
by the police officer under sub-section (6)
of Section 173. "

5. In the circumstances, the accused
is entitled to the statement of the
informant
(complainant),
who
is
a
material witness in the case. The approach
of the trial court appears to be extremely
highhanded
in
not
providing
that
statement before framing the charge. Such
an approach is highly deprecable and is
not seen with any compassion. The trial
court is, therefore, directed to act within
the
precinct
of
law
and
be
not
unnecessarily arbitrary and authoritative
ignoring the provisions (sic) law.

6. In the circumstances adverted to
above, the trial court is directed to provide
the applicant a copy of the statement of
the informant within seven days. He will
also be afforded an opportunity of
amendment of charge, for which the
applicant shall make an application, if any
such change or amendment is felt
required. Before proceeding with the trial,
the trial court will look into that
application and after due application of
mind shall pass necessary orders.

With
these
observations,
this
revision-application is finally disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED:ALLAHABAD DECEMBER 13, 2001

BEFORE
THE HON'BLE R.H. ZAIDI, J.

Civil Misc. Writ Petition No. 14073 of 2000

Kari Naimuddin

...Petitioner
Versus
Commissioner, Meerut Division, Meerut
and others

 ...Respondents
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
164
Counsel for the Petitioner:
Sri V.S. Sinha

Counsel for the Respondents:
Sri Prem Chandra

Constitution of India, Article 226-Writ
Petition challenging the validity of order
passed u/s 23/39 of Land Revenue Act, -
held not maintainable.

Held - Para 5

It is well settled in law that against the
orders passed under Sections 33/39 of
the U.P. Land Revenue Act, a petition
under Article 226 of the Constitution of
India is legally not maintainable. A
reference in this regard may be made to
the decisions of this Court in Narain
Singh
Vs.
Additional
Commissioner,
Meerut and others, reported in (1999) 2
CRC page 342, Brahma Deo and others
Vs. Board of Revenue, U.P. and others,
reported in 1986 R.D. page 302 and Jai
Pal Singh Vs. Board of Revenue and
others, reported in 1956 A.W.R. 518.

(Delivered by Hon'ble R.H. Zaidi, J.)

1. Present petition arises out of the
proceedings under Sections 33/39 of the
U.P. Land Revenue Act and is directed
against the judgments and orders dated
15.6.1999 and 4.1.2000 passed by the
respondents no.3 and 1 respectively.

2. It appears that in the mutation
proceedings, the petitioner has applied for
interim relief. Application for grant of
interim relief was rejected by respondent
no. 3. Consequently, the petitioner filed a
revision before the Commissioner against
the order passed by respondent no.3. The
Commissioner also declined to grant the
interim relief. Thereafter, the petitioner
filed Writ Petition no. 1286 of 2000
which was disposed of by this court by
judgment and order dated 8.1.2000 with
the observation that the revisional Court
shall endeavour to dispose of the revision
finally
as
early
as
possible.
The
commissioner although did not decide the
revision, but rejected the application for
interim relief by the impugned order dated
04.01.2000. Hence, the present petition.

3. Learned counsel appearing for the
petitioner vehemently urged that the
revision filed by the petitioner is still
pending disposal. Therefore, there was no
justification for the revisional Court not to
grant the interim relief. The order passed
by the respondent no.1 was, as such,
liable to be quashed. On the other hand,
learned
counsel
appearing
for
the
respondents submitted that the revision
filed by the petitioner was dismissed.
Thereafter, an application filed to recall
the
said
order
was
also
rejected.
According to him, no application to recall
the said order has been filed although
aforesaid
fact
was
known
to
the
petitioner. It was also urged by the
learned counsel for the respondents that
the order under challenge is revisable. If
the petitioner felt aggrieved by the said
order, he could approach the U.P. Board
of Revenue, against the impugned order
and could file a revision. Petitioner
having not filed the revision against the
impugned order the same became final.
The present petition under Article 226 of
the Constitution of India is, therefore,
legally not maintainable.

4. I have considered the submissions
made by the learned counsel for the
parties.

5. Admittedly, the first petition was
filed and dismissed by this Court for all
practical purposes as this Court refused to
1All] Kari Naimuddin V. Commissioner, Meerut Division, Meerut and others
165
interfere with the order and directed the
revisional Court to decide the revision
expeditiously. Secondly, the alternative
remedy by way of revision is available to
the petitioner. The petitioner having not
exhausted
the
alternative
remedy
approached this Court straight away,
therefore, the present petition is also
legally not maintainable on the ground of
availability
of
alternative
remedy.
Thirdly, the proceedings under Sections
33/39 of the U.P. Land Revenue Act are
summary in nature. The title of the parties
to the property in dispute is not decided in
the said proceedings. It is well settled in
law that against the order passed under
Section 33/39 of the U.P. Land Revenue
Act, a petition under Article 226 of the
constitution of India is legally not
maintainable. A reference in this regard
may be made to the decisions of this court
in
Narain
Singh
Vs.
Additional
commissioner,
Meerut
and
others,
reported in (1999) 2 CRC page 342;
Brahma Deo and others Vs. Board of
Revenue, U.P. and others, reported in
1986 R.D. page 302 and Jai Pal Singh Vs.
Board of Revenue and others, reported in
1956 A.W.R. 518.

6. For the facts and reasons given
above, the present petition fails and is
hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD DECEMBER 05, 2001

BEFORE
THE HON'BLE A.K. YOG, J.

Civil Misc. Writ Petition No. 39963 of 2001

Gopal Yadav

...Petitioner
Versus
Special Judge (Anti corruption)/A.D.J.,
Varanasi and others
 ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Singh

Counsel for the Respondent:
Sri Faheem Ahmad
S.C.

U.P. Urban Building (Regulations of
Letting Rent and Eviction) Act 1972 -
cost of suit- what includes-amount of
court fee 1⁄2 counsel fee on a contested
side-amount of court fee payable on the
basis of rate of rent.

Held- Para 9

The question for consideration of this
court is as to whether the cost of suit,
apart from others include (i) actual
amount of court fee paid by the plaintiff,
and (ii) 1⁄2 counsel fee on a contested
suit (as submitted by the learned counsel
for the land lord-respondent) or the
amount of court fee which would have
been payable on the basis of the rate or
rent pleaded by the Defendant in the
written statement (and, after parties
have lead evidence, court finally found to
be correct).
Case law discussed:
1981 ARC-502
1981 ALS-26
1981 (7) ALR-225
1986 ARC-195
1996 (2)-188