# Zunjarrao Bhikaji Nagarkar v. Union

- **Citation:** (2008) 1 ILRA 203
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-21
- **Case number:** Civil Misc. Writ Petition No. 8846 of 2008
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zunjarrao-bhikaji-nagarkar-v-union-41013
- **Pages:** 4

## Headnote

Act, 1950-Section333-Revisional power
of Board-very wide-empowers to call for
record of any Suit or proceeding-order
passed
under
Section
229-D
not
specifically excluded by amended Act No.
11 of 2002-held-revision against the
order passed under Section 229-D not to
be dismissed in the garb of interlocutory
order.

Held: Para 9

Section 333 of the Act is very widely
worded which empowers the Board or
Additional Commissioner to call for the
record
of
any
suit
or
proceeding.
Application under section 229-D has
been separately provided under the Act
and when an application under section
229-D is disposed of finally either
granting or refusing to grant interim
order, it can be said that the said
proceedings
are
finally
terminated.
Under section 333 of the Act, the Court is
empowered to call for record of any suit
or-proceeding. The order under section
229-D is not specially excluded from the
purview of section 333 of the Act. It is
relevant to note that by U.P. Act No. 11
of
2002,
an
amendment
has been
inserted excluding one proceeding from
the
revisional
jurisdiction
that
is
proceedings under sub-section (4-A) of
section 198. Had the legislature intended
to have excluded the proceeding under
section 229-D, there was no reason of
not indicating or mentioning the same in
section 333. The amendment made in
2002 as noted above, clearly shows the
intendment of the Legislature that no
other proceeding has been excluded
except the proceeding under sub-section
(4-A) of section 198 from the purview of
section 333 of the Act.
Case law discussed:
2002 (93) R.D. 883, 2001 RJ 661, 2001 RJ
913, 2001 RJ 529, 2001 RJ 918.

## Text

1 All] Talib Khan V. Addl. Commissioner, Moradabad and others
203
Court is under obligation to impose fine
also in addition to the substantive
sentence of imprisonment. No discretion
is left to the Court to levy or not to levy
fine and imposition of both imprisonment
and fine is imperative in such case, as
held by Hon'ble Apex Court in the case of
Zunjarrao Bhikaji Nagarkar Vs. Union
of India and others (AIR 1999 SC 2881),
in which reference has been made to the
case
of
Rajasthan
Pharmaceuticals
Laboratory, Bangalore V. State of
Karnataka (1981) 1 SCC 645.

6. Let a copy of this order be sent by
Registrar General within a week to Sri
Rajiv Kumar Tripathi, the then Additional
Sessions Judge, Court No.3, Farrukhabad
for his future guidance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 8846 of 2008

Talib Khan

...Petitioner
Versus
Additional Commissioner and others

...Respondents

Counsel for the Petitioner:
Sri Haider Husain

Counsel for the Respondents:
Sri D.V. Jaiswal
S.C.

U.P. Zamindari Abolition & Land Reforms
Act, 1950-Section333-Revisional power
of Board-very wide-empowers to call for
record of any Suit or proceeding-order
passed
under
Section
229-D
not
specifically excluded by amended Act No.
11 of 2002-held-revision against the
order passed under Section 229-D not to
be dismissed in the garb of interlocutory
order.

Held: Para 9

Section 333 of the Act is very widely
worded which empowers the Board or
Additional Commissioner to call for the
record
of
any
suit
or
proceeding.
Application under section 229-D has
been separately provided under the Act
and when an application under section
229-D is disposed of finally either
granting or refusing to grant interim
order, it can be said that the said
proceedings
are
finally
terminated.
Under section 333 of the Act, the Court is
empowered to call for record of any suit
or-proceeding. The order under section
229-D is not specially excluded from the
purview of section 333 of the Act. It is
relevant to note that by U.P. Act No. 11
of
2002,
an
amendment
has been
inserted excluding one proceeding from
the
revisional
jurisdiction
that
is
proceedings under sub-section (4-A) of
section 198. Had the legislature intended
to have excluded the proceeding under
section 229-D, there was no reason of
not indicating or mentioning the same in
section 333. The amendment made in
2002 as noted above, clearly shows the
intendment of the Legislature that no
other proceeding has been excluded
except the proceeding under sub-section
(4-A) of section 198 from the purview of
section 333 of the Act.
Case law discussed:
2002 (93) R.D. 883, 2001 RJ 661, 2001 RJ
913, 2001 RJ 529, 2001 RJ 918.

(Delivered by Hon'ble Ashok Shushan. J.)

1. Heard Sri Haider Husain, learned
counsel for the petitioner and Sri D.V.
Jaiswal,
learned
Counsel
for
the
contesting respondents.

2. With the consent of learned
Counsel for the parties, the writ petition is
204 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
being disposed of at the admission stage
itself without inviting counter affidavit.

3. By this writ petition the petitioner
has prayed for quashing the order dated
28.9.2007, passed by the Sub Divisional
Officer refusing to grant an interim
injunction and the order dated 5.11.2007,
passed by the revisional court dismissing
the revision as not maintainable.

4. The brief facts of the case
necessary for the disposal of the writ
petition are; that a suit under section 229B of the U.P. Zamindari Abolition and
Land Reforms Act, 1950 was filed by the
petitioner.
Alongwith
the
suit
an
application under section 229-D of the
U.P. Zamindari Abolition and Land
Reforms Act. 1950 read with section 151,
Order XXXIX Rule 1 Coda of Civil
Procedure was also filed by the petitioner.
An interim injunction was granted on
13.9.2007 by the Assistant Collector
directing the parties to maintain statusquo till disposal of the suit. The
respondents put in appearance in the suit
and prayed for vacation of the ex-parte
interim injunction. The trial Court by
order dated 28.9.2007 set aside the
interim injunction order. Against the order
dated 28.9.2007, a revision was filed by
the petitioner before the Additional
Commissioner under section 333 U.P;
Zamindari Abolition and Land Reforms
Act, 1950. Before the revisional Court an
objection was raised by the defendant
respondents
that
revision
was
not
maintainable since it had been filed
against an interlocutory order. The
revisional Court proceeded to examine the
objection and relying on certain decisions
of the Board of Revenue and one
judgment of this court, vide the impugned
order dated 5.11.2007 dismissed the
revision holding that the revision is not
maintainable. Against the aforesaid order,
the present writ petition has been filed.

5. Learned Counsel for the petitioner
contends that the view taken by the
revisional Court that revision is not
maintainable since the order passed under
section 229-D was interlocutory in nature,
is erroneous. He further submits that order
passed under section 229-D is subject to
revisional jurisdiction and the revisional
Court committed error in rejecting the
said revision on the ground of its nonmaintainability. Learned Counsel for the
petitioner further contends that the
judgments of the Board of Revenue relied
on by the revisional court do not lay down
the correct law. The order passed under
section 229-D is revisable under section
333 of the U.P. Zamindari Abolition and
Land Reforms Act, 1950. He further
submits that the judgment in the case of
Ram Vyas and others Vs. Board of
Revenue, U.P. Allahabad reported in
2002 (93) R.D. 883 is not applicable in
the facts of the present case since the
question involved in the present writ
petition, has not been considered in the
said judgment. Sri D.V. Jaiswal, learned
Counsel for the contesting respondents on
the other hand contends that no error was
committed by the Assistant Collector in
vacating the ex-parte interim order as the
petitioner was not entitled for any interim
injunction.

6. I have considered the submissions
of counsel for both the parties and
perused the record.

7. The issue raised in the present
writ petition is, as to whether the order
passed under section 229-D is revisable
under Section 333 of the U.P. Zamindari
1 All] Talib Khan V. Addl. Commissioner, Moradabad and others
205
Abolition and Land Reforms Act, 1950 or
not. The revisional Court relied on the
judgment in the cases of Shikhari Vs.
State of U.P. reported in 2001 RJ 661,
Sageer Ahmad vs. Mohammad Quddus
and others, reported in 2001 RJ 913,
Mahfooz Vs. State of U.P., reported in
2001 RJ 529, Sangam Sahkari Avas
Samiti Vs. Rani Brijmani Devi reported
in 2001 RJ 918. All the aforesaid
judgments are the judgments of the Board
of Revenue. In the said judgments, the
Board of Revenue held that the order
passed under section 229-D of U.P.
Zamindari Abolition and Land Reforms
Act, 1950 is interlocutory in nature and is
not liable to be interfered with in revision.
The above noted judgments do not
specifically lay down that order passed
under section 229-D is not revisable. In
the case of Ram Vyas (supra), the
question as to whether the order passed
under section 229-D is revisable or not,
was not considered.

Section 229-D of the U.P. Zamindari
Abolition and Land Reforms Act, 1950 is
to the following effect:

"229-D. Provision for injunction.
(1) If in the course of a suit under the
provisions of Sections 229-B and 229-C,
it is proved by an affidavit or otherwise-

(a) that any property, tree or crops
standing on the land in dispute is in
danger of being wasted, damaged or
alienated by any patty to the suit; or

(b) that any party to the suit threatens or
intends to remove or dispose of the said
property, trees or crops in order to defeat
the ends of justice, the Court may grant a
temporary
injunction
and
where
necessary, also appoint a receiver."
8. The revisional jurisdiction of the
Court is provided under section, 333 of
the U.P. Zamindari Abolition and Land
Reforms Act, 1950, which is to the
following effect:

"333. Power to call for cases. - (1)
The Board of. the Commission or the
Additional Commissioner may call for the
record of any suit or proceeding other
than proceeding under Sub-section (4-A)
of Section 198 decided by any court
subordinate to him in which no appeal
lies or where an appeal lies but has not
been preferred, for the purpose of
satisfying himself as to the legality .or
propriety of any order passed in such suit
or proceeding and if such subordinate
court appears to have:
(a) exercised a jurisdiction not
vested in it by law; or
(b) failed to exercise a jurisdiction so
vested; or
(c)
acted
in
the
exercise
of
jurisdiction illegally or with material
irregularity
the
Board
or
the
Commissioner
or
the
Additional
Commissioner, as the case may be, may
pass such order in the case as he thinks
fit.

(2) If an application under his section has
been moved by any person either to the
Board or to the Commissioner or to the
Additional Commissioner, no further
application by the same person shall be
entertained by any other of them."

9. Section 333 of the Act is very
widely worded which empowers the
Board or Additional Commissioner to call
for the record of any suit or proceeding.
Application under section 229-D has been
separately provided under the Act and
when an application under section 229-D
206 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
is disposed of finally either granting or
refusing to grant interim order, it can be
said that the said proceedings are finally
terminated. Under section 333 of the Act,
the Court is empowered to call for record
of any suit or-proceeding. The order
under section 229-D is not specially
excluded from the purview of section 333
of the Act. It is relevant to note that by
U.P. Act No. 11 of 2002, an amendment
has
been
inserted
excluding
one
proceeding
from
the
revisional
jurisdiction that is proceedings under subsection (4-A) of section 198. Had the
legislature intended to have excluded the
proceeding under section 229-D, there
was no reason of not indicating or
mentioning the same in section 333. The
amendment made in 2002 as noted above,
clearly shows the intendment of the
Legislature that no other proceeding has
been excluded except the proceeding
under sub-section (4-A) of section 198
from the purview of section 333 of the
Act.

10. In view of the provisions of
section 333, it is to be held, that an order
passed under section 229-D is not
excluded from the revisional jurisdiction
provided under section 333 of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950. The view taken by the
revisional Court that revision is not
maintainable cannot be sustained and is
hereby set aside. The writ petition is
partly allowed. The order 5.11.2007 is set
aside and the matter is remanded to the
revisional Court to decide the the same
afresh in accordance with law.

Petition partly allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2008

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE VINEET SARAN, J.

Special Appeal No. 1614 of 2007

Pushpendra Singh & another...Petitioners
Versus
State of U.P. and another...Respondents

Counsel for the Petitioners:
Sri Gulab Chandra

Counsel for the Respondents:
Sri Y.K. Srivastava
Sri G.C. Upadhyaya
S.C.

Constitution of India, Art. 226-readwith
U.P. Police Officers of the Subordinate
Rank (Punishment & Appeal) Rules
1991-Rule 8 (2)(b)-dismissal alternative
remedy-dismissal
order-without
recording reasons of satisfaction for not
holding
regular
enquiry-without
affording opportunity of hearing-order
passed
contrary
to
the
mandatory
provision
of
the
regulation-heldalternative remedy no absolute bar.

Held: Para 9 and 11

It is also an admitted position that the
appellants have been dismissed from
service without holding any enquiry.
They have not been informed of the
charges against them nor been afforded
opportunity of being heard in respect of
charges before inflicting punishment of
dismissal from service. Thus, in the
absence of reasons for dispensing with
the regular enquiry the impugned order
of dismissal is patently illegal and it is
difficult to uphold the same.

Since, in the case in hand, admittedly,
the order has been passed without