Smt. Meera Singh vs State Of U.P. Thru. ...
2019 Latest Caselaw 1835 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 4							A.F.R
 

 
Case :- MISC. SINGLE No. - 7718 of 2019
 

 
Petitioner :- Smt. Meera Singh
 
Respondent :- State Of U.P. Thru. D.M./Collector Unnao & Ors.
 
Counsel for Petitioner :- Ravi Nath Tilhari
 
Counsel for Respondent :- C.S.C.,G.M.Kamil,Yogendra Nath Yadav
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard Shri Ravi Nath Tilhari, learned counsel for the petitioner, Shri G.M. Kamil, learned counsel representing the respondent no.3, learned Standing Counsel representing the State-authorities and Shri Yogendra Nath Yadav, learned counsel representing the Gaon Sabha/Land Management Committee concerned.

Under challenge in this petition are two orders dated 26.12.2018 passed by the Sub Divisional Officer, Sadar, Unnao, which have been annexed as annexures 1 and 2 respectively to the writ petition.

By the first order dated 26.12.2018 the cause title of the suit filed by the Land Management Committee in respect of the land in question has been ordered to be altered from the suit instituted under section 229-B of U.P.Z.A & L.R. Act (hereinafter referred to as ''the Act') to a suit under section 145 of U.P. Revenue Code, 2006 (hereinafter referred to ''Code, 2006).

By the second order dated 26.12.2018 the Sub Divisional Officer has appointed the Executive Officer, Nagar Palika Parishad, Gangaghat, district-Unnao/Secretary, Land Management Committee, Fattepur (Katha Dalnarayanpur) as a receiver of the land in question.

Submission of the learned counsel for the petitioner while impeaching the first order dated 26.12.2018, whereby cause title has been ordered to be changed from suit under section 229-B of the Act to a suit under section 145 of the Code, 2006 is that the suit was admittedly instituted on 06.02.2016 under section 229-B of the Act, whereas the Code, 2006 was enforced on 11.02.2016, as such the cause title could not have been changed. He has drawn attention of the Court to section 231 of the Code, 2006 which specifically provides for applicability of the Code, 2006 to the pending proceedings. In this view, the submission is that the suit filed by the Land Management Committee ought to have treated a suit under section 229 of the Act and not suit under section 145 of the Code, 2006.

So far as the aforesaid submission made by the learned counsel for the petitioner is concerned, it is noticeable that the suit by the State and the Land Management Committee was filed before the Sub Divisional Officer. The memorandum of the plaint is on record as annexure-11 to the writ petition, which reveals that the suit was ordered to be registered by the Sub Divisional Officer on 06.02.2016 on which date, notices were also issued to the defendants and the matter was ordered to be listed on 09.03.2016.

It is thus clear that the suit was presented on 06.02.2016 and the Court concerned has also registered the said suit on 06.02.2016. Thus, there is no ambiguity that the suit filed by the Land Management Committed was instituted on 06.02.2016. Merely because, pursuant to the order dated 06.02.2016, the details of the suit filed by the Land Management Committee could not be registered in the computer and it was subsequently registered in the computer, will not change the date of institution of the suit. I am, thus, of the considered opinion that the suit in this case was instituted by the Land Management Committee on 06.02.2016 and by operation of the provision of section 231 of the Code, 2006, the suit so instituted is to be treated a suit under section 229 of the Act and not a suit under section 145 of the Code, 2006. To that extent the writ petition deserves to be allowed.

Having observed as above, so far as the submissions made by the learned counsel for the petitioner challenging the other order dated 26.12.2016 passed by the Sub Divisional Officer whereby a receiver has been appointed is concerned, I do not find any substance in the same except that the Sub Divisional Officer could not have appointed the Secretary of the Land Management Committee as a receiver of the suit property for the simple reason that it is the Land Management Committee itself which has instituted the suit.

It has been contended by the learned counsel for the petitioner that since the suit instituted by the Land Management Committee is a suit under section 229 of the Act and power to grant interim injunction and appoint receiver under section 229-D of the Act is vested with in the learned trial court only in respect of the suits instituted under section 229-B and 229-C of the Act alone, as such the order appointing receiver passed by the Sub Divisional Officer is bad in law. His submission is that section 229-D deliberately excludes the suits instituted by the Gaon Sabha under section 229 of the Act and accordingly the provisions of section 229-D which provides for passing of injunction order or appointment of receiver is not available in a suit instituted under section 229 of the said Act. He has, thus, stated that the order appointing the receiver in the suit property is without jurisdiction.

The aforesaid submission, at the first hand, appears to be attractive but only for being rejected for the reason which follows. Admittedly, in view of the provisions contained in sections 341 of the Act, the provisions of Code of Civil Procedure have been made applicable to the proceedings drawn and conducted under the provisions of the Act.

Section 341 of the Act is quoted hereunder:

341. Application of certain Acts to the proceedings of this Act.-Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870, the Code of Civil Procedure, 1908 and the [Limitation Act, 1963] [including section 5 thereof] shall apply to the proceedings under this Act.

A perusal of the aforequoted provisions of section 341 of the Act reveals that the entire provisions of the Code of Civil Procedure and the Limitation Act have been made applicable to the proceedings under the Act unless otherwise expressly provided for by or under the said Act itself. This exclusion, thus, has to be specific and express. The provisions contained in section 341 of the Act, would mean that unless there is some express exclusion of application of any particular provision of the Code of Civil Procedure, the procedure contained therein shall have full application.

The provisions relating to appointment of a receiver can be found in Order XXXX Rule 1 of the Code of Civil Procedure and there is no express or even implied exclusion of Order XXXX Rule 1 of the Code of Civil Procedure under the Act. Submission of learned counsel for the petitioner that by virtue of operation of section 229-D since in its application the said provision excludes a suit under section 229 of the Act, as such the power to appoint receiver in a suit instituted under section 229 of the Act will not be available, is absolutely misconceived for the reason that apart from the provisions contained in section 229-D(b) of the Act the learned trial court dealing with the suits instituted under the Act is also couched with the powers of appointment of receiver as envisaged under Order XXXX Rule 1 of the Code of Civil Procedure.

For the reasons disclosed above, submission of learned counsel for the petitioner for quashing the order dated 26.12.2018 appointing the receiver to the suit property merits rejection, which is hereby rejected. The writ petition is, thus, partly allowed. The order dated 26.12.2018 passed by the Sub Divisional Officer, Sadar, Unnao whereby the suit has been ordered to be treated to be a suit under section 145 of the Code, 2006 instead of suit under section 229 of the Act is hereby quashed.

The suit instituted by the State/Land Management Committee shall, thus, be treated to be a suit under section 229 of the Act and shall accordingly proceed.

So far as the order dated 26.12.2018 whereby the Executive Officer, Nagar Palika Parishad, Gangaghat, Unnao is concerned, I do not see any illegality in the same, however, keeping in view the fact that the suit itself has been instituted by the Land Management Committee, the said order dated 26.12.2018 is modified only to the extent that henceforth it is the Executive Officer, Nagar Palika Parishad, Gangaghat, Unnao, who shall act as a receiver in respect of the suit property.

There will be no order as to cost.

Order Date :- 28.3.2019

akhilesh/

[Devendra Kumar Upadhyaya, J.]