of U.P. & Ors. Etc. Vs. Roshan Singh & Ors.  Insc 44 (16 January 2008)
Arijit Pasayat & Aftab Alam
out of S.L.P (C) Nos.16970-72 of 2005) Dr. ARIJIT PASAYAT, J.
Challenge in these appeals is to the judgment of the learned Single Judge of
the Allahabad High Court allowing the Civil Misc. Writ Petitions 17464 of 1984,
8825 of 1995 and 19050 of 1995. Challenge in the first writ petition was to the
order passed by the Prescribed Authority under the U.P.
of Ceiling on Land Holdings Act, 1954 (in short the Act) and the
appellate order passed by the Appellate Authority.
Background facts in a nutshell are as follows:
issuance of notice under Section 10(2) of the Act an area of 17 Bighas 10 Biswas
and 2 Biswansis of land of the respondent-Roshan Singh was declared as surplus.
Thereafter consolidation operation commenced. Proceedings under Section 107 of
the Act were initiated on 28.3.1974 and the respondent-Roshan Singh was granted
opportunity to file his response to the notice. The objection was filed on
25.5.1974 and by order dated 14.1.1980 the Prescribed Authority after
determining the surplus gave opportunity to the respondent to indicate the
choice of land to be retained. The respondent did not indicate any choice.
Therefore by order dated 8.4.1982, 17 Bighas 10 Biswas and 2 Biswansis of land
was declared as surplus. Thereafter, possession of the surplus land was taken.
There is a provision for appeal under Section 12 of the Act. But the respondent-Roshan
Singh did not prefer any appeal. On the other hand on 17.2.1984 an application
titled under Section 151 of the Civil Procedure Code, 1908 (in short
CPC) was filed. Stand taken was that in the consolidation proceedings
different area was indicated and, therefore, holding was reduced. Objections
were filed by the functionaries of the State on 23.3.1984 and 30.3.1984.
the objections the Prescribed Authority by order dated 3.4.1984 rejected the
claim of the respondent-Roshan Singh. An appeal was preferred by him i.e.
Revenue Appeal no.24 of 1984 in the Court of III Additional District Judge,
Banda, U.P. The appeal was dismissed on 21.8.1984. Civil Writ Petition no.17464
of 1984 was filed before the Allahabad High Court. Subsequently, the surplus
land was distributed.
were challenged in Civil Writ Petition no.8825 of 1995 and 19050 of 1995. The
first writ petition was allowed by a learned Single Judge with the following
heard Sri V.K.S. Chaudhary, learned Senior counsel appearing on behalf of the
petitioner and Smt. Archana Srivastava, learned Standing Counsel for the
respondents, this Court is of the view that as the reduction of area made
during the consolidation operation is made for public purposes, the petitioner
is entitled to the benefit of said reduction. The submission made by the
learned counsel for the petitioner has got force and therefore, the writ
petition deserves to be allowed.
is to be noted that the above quoted portion was the only basis on which the
writ petition was allowed. Two orders were also allowed following the decision
rendered in the first case.
Learned counsel for the appellants submitted that the approach of the High
Court is clearly erroneous. Firstly, petition under Section 151 was not
maintainable when statutorily an opportunity and/or forum is provided which was
not availed. Further the proceedings under the Act and the Consolidation Act
operate in different fields and, therefore, even if the area was different same
was on the basis of the parameters under the Consolidation Act and a belated
attempt to re-open concluded issues by resorting to Section 151 was clearly
Learned counsel for the respondent submitted that there cannot be two different
areas; one under the Act and the other the Consolidation Act. Therefore, the
High Court was justified in its view.
principles which regulate the exercise of inherent powers by a court have been
highlighted in many cases. In matters with which the CPC does not deal with,
the Court will exercise its inherent power to do justice between the parties
which is warranted under the circumstances and which the necessities of the
case require. If there are specific provisions of the CPC dealing with the particular
topic and they expressly or necessary implication exhaust the scope of the
powers of the Court or the jurisdiction that may be exercised in relation to a
matter, the inherent powers of the Court cannot be invoked in order to cut
across the powers conferred by the CPC. The inherent powers of the Court are
not to be used for the benefit of a litigant who has remedy under the CPC.
is the position vis-`-vis other statutes. The object of Section 151 CPC is to
supplement and not to replace the remedies provided for in the CPC. Section 151
CPC will not be available when there is alternative remedy and same is accepted
to be a well-settled ratio of law. The operative field of power being thus
restricted, the same cannot be risen to inherent power. The inherent powers of
the Court are in addition to the powers specifically conferred to it. If there
are express provisions covering a particular topic, such power cannot be
exercised in that regard. The section confers on the Court power of making such
orders as may be necessary for the ends of justice of the Court. Section 151
CPC cannot be invoked when there is express provision even under which the
relief can be claimed by the aggrieved party. The power can only be invoked to
supplement the provisions of the Code and not to override or evade other
express provisions. The position is not different so far as the other statutes
an aggrieved person is not remediless less under the Act.
conclusions of the High Court are not only cryptic but also without indication
of any basis. As rightly contended by learned counsel for the appellant long
after the period provided for preferring an appeal under Section 12 of the Act,
the application under Section 151 CPC was filed.
Court in State of W.B. and Ors. v. Karan Singh Binayak and
Ors. (2002 (4) SCC 188), inter alia observed as follows:
period of 25 years under the lease expired in the year 1976. The notification
under the Act was issued on 11th November, 1954. In 1957 record of rights was prepared under Section 44 of the Act
according to which the land was held retainable under Section 6(1)(b) of the
Act. The possession was handed over to the original owners in 1981 on
liquidation of the lessee on an order being passed by the High Court directing
official liquidator to disclaim the property which was later transferred to the
writ petitioners in terms of the agreements of sale entered in the year 1988
and sale deeds in 1992-93. Meanwhile, in the year 1991 on proceedings being
taken under the ULC Act, 6145.90 square meter of the land was held to be excess
under the said Act. In June 1993, the plans were sanctioned and construction
commenced. It can, thus, be seen that after the preparation of record-of-
rights, not only the appellants did not take any steps and slept over the
matter but various steps as above were taken by the respondents in respect of
the land in question. The argument that the proceedings under the ULC Act or
the preparation of record-of-rights were ultra vires and the acts without
jurisdiction and, therefore, those proceedings would not operate as a bar in
appellants invoking inherent jurisdiction under Section 151 CPC by virtue of
conferment of such power under Section 57A of the Act is wholly misconceived
and misplaced. The inherent powers cannot be used to reopen the settled
matters. These powers cannot be resorted to when there are specific provisions
of the Act to deal with the situation. It would be an abuse to allow the
reopening of the settled matter after nearly four decades in the purported
exercise of inherent powers. It has not even been suggested that there was any
collusion or fraud on behalf of the writ petitioners or the erstwhile owners.
There is no explanation much less satisfactory explanation for total inaction
on the part of the appellants for all these years.
Arjun Singh v. Mohindra Kumar and Ors. (AIR 1964 SC 993) it was, inter alia,
observed as follows:
is one other aspect from which the same question could be viewed. Order IX Rule
7 prescribes the conditions subject to which alone an application competent
under the opening words of that rule ought to be dealt with. Now, the
submission of Mr. Pathak if accepted, would mean to ignore the opening words
and say that though specific power is conferred when a suit is adjourned for
hearing, the Court has an inherent power even when
is not adjourned for that purpose, and
this is of some importance when the suit is not adjourned at all, having regard
to the term of Order XX Rule 1. The main part of Order IX Rule 7 speaks of
good cause being shown for non-appearance on a previous day.
what are the criteria to be applied by the Court when the supposed inherent
jurisdiction of the Court is invoked? Non-constat it need not be identical with
what is statutorily provided in Rule 7. All this only shows that there is
really no scope for invoking the inherent powers of the Court. Lastly, that
power is to be exercised to secure the ends of justice. If at the stage of Rule
7 power is vested in the Court and after the decree is passed Order IX Rule 13
becomes applicable and the party can avail himself of that remedy, it is very
difficult to appreciate the ends of justice which are supposed to be served by
the Courts being held to have the power which the learned counsel says must
inhere in it. In this view it is unnecessary to consider whether to sustain the
present submission the respondent must establish that the court was conscious
that it lacked specific statutory power and intended to exercise an inherent
power that it believed it possessed to make such orders as may be necessary for
the ends of justice.
Looked at from any angle the orders of the High Court impugned in these appeals
cannot be sustained and are set aside. It is to be noted that subsequent two
writ petitions were allowed primarily on the ground that first writ petition
appeals are allowed but in the circumstances without any order as to costs.
Pages: 1 2 3