Mohd. Zahir Khan & Ors. vs State Of U.P. Thru. Secy. Judicial ...
2019 Latest Caselaw 408 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED ON:  01.11.2018
 
DELIVERED ON: 05.03.2019
 

 
Court No.5 
 

 
Case :- MISC. BENCH No. - 30585 of 2018
 

 
Petitioner :- Mohd. Zahir Khan & Ors.
 
Respondent :- State Of U.P. Thru. Secy. Judicial & Ors.
 
Counsel for Petitioner :- Bare Lal Bhartiya
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Devendra Kumar Arora, J
 
Hon'ble Rajan Roy,J.

This is a writ petition filed by the petitioners who claim to be registered clerk of Civil Court Raebareli discharging their duties as such with their respective Advocates as has been averred in paragraph 5 of the writ petition. Their grievance is that the Revenue Record Keeper in the Collectorate Raebareli is not permitting them to inspect the files pertaining to revenue records. Learned counsel for the petitioners has relied upon Section 221 of the U.P. Revenue Code, 2006 (hereinafter referred to as ''the Code-2006') to contend that under the said provision any person can inspect the records on payment of prescribed fee, therefore, he says that the action of the Record Keeper is contrary to law. As regards a contrary decision by a Co-ordinate Bench of this Court dated 21.02.2018 in Writ Petition No.5319 of 2018 (MB), Learned counsel for the petitioners submitted that the provisions of Section 221 referred hereinabove was not noticed therein, therefore, it did not constitute a binding precedent.

Learned counsel for the petitioners has also invited the attention of the Court to sub section 3 of Section 234 of the Code-2006 by which the Revenue Court Manual in force on the date of commencement of ''the Code 2006' would continue to remain in force to the extent it is not inconsistent with the provisions of this Code, until amended, rescinded or repealed by any regulations made under the said provision.

Learned counsel for the petitioners has relied upon the provisions of the Allahabad High Court Rules to contend that even in the Allahabad High Court inspection of records by any person including a person other than a party to the litigation or the litigant, is permissible.

Having heard the learned counsel for the parties and having perused the records this Court does not find any merit in the contention of the learned counsel for the petitioners. Section 221 of the Code-2006 reads as under:-

"Section 221:-Rights to inspect and obtain copies.-- All documents, statements, records and registers prepared or maintained under this Code or the rules framed [thereunder] shall be open to inspection during such hours and subject to such conditions and on payment of such fees as may be prescribed, and any person shall on payment of the prescribed fee, be entitled to obtain the certified copy of the such document or any portion of any such document, statement record or register.

The said provision as would be evident from a bare reading of it is in two parts. The first part relates to inspection of documents etc. while the second, part relates to obtaining certified copy of such document etc. The first part very categorically states that "all documents, statements, records and registers prepared or maintained under this Code of the rules framed thereunder shall be open to inspection during such hours and subject to such conditions and on payment of such fee as may be prescribed". It is quite clear that this part of the provision does not say that ''any person' may inspect the record. What it says is that inspection of records is permissible subject to such conditions and on payment of such fee, as may be prescribed. Second part of the provision of-course says that "any person shall on payment of the prescribed fee, be entitled to obtain the certified copies of such document or any portion of any such document, statement, record or register". The word "and" divides the aforesaid provision in two parts and is disjunctive, not conjunctive. The provision very distinctly is divided into two parts by the use of the disjunctive word ''and'. This is with a purpose. Certified copies can be obtained by any person but inspection of a revenue record is a sensitive issue. Court records have a sanctity attached to them as they relate to judicial proceedings wherein legal rights relating to property etc. are determined. The records cannot be exposed to inspection by any person as any tampering and interpolation therein may prove fatal to the rights of the parties to any proceedings under the statutory enactments, therefore, this distinction has been made and validly so. The inspection of documents, the same has been made subject to such conditions and on payment of such fee as may be prescribed obviously for the reasons mentioned hereinabove so as to maintain the sanctity and confidentiality of records. Now as far as the word "subject to such conditions" and ''as may be prescribed' are concerned, the learned counsel for the petitioner could not show any regulations which may have been made under Section 234 of the Code-2006 on the subject matter in issue as is mentioned in Section 221. The U.P. Revenue Code Rules 2016 also does not contain any such provision on the said subject assuming that it was permissible to do so in exercise of powers under section 233.

Section 234 is quoted in its entirety hereinbelow:

"Section 234:-Regulations.--(1) Subject to the provisions of this Code and the rules made thereunder, the Board may, with the previous approval of the State Government, make regulations---

(a) governing the procedure of the Revenue Courts and the revenue officers in respect of suits, applications and proceedings under this Code; and

(b) containing directions for the preparation, maintenance and supervision of land records and matters connected therewith;

(c) prescribing the duties of Tahsildars and Naib-Tahsildars, and regulating their posting, transfers and their appointment in temporary vacancies;

(d) procedure for issuing licences to petition writers;

(e) such other matters as may be prescribed by rules.

(2) All regulations made in accordance with sub-section (1) shall have the force of law.

[(3) The Revenue Court Manual, the Land Records Manual, Collection Manual and Land Revenue (Survey and Record Operation) Rules, 1978, in force on the date of commencement of this Code, shall continue to remain in force, to the extent they are not inconsistent with the provisions of this Code, until amended, rescinded or repealed by any regulations made under this Section.]

By virtue of sub section 3 of Section 234 in view of the fact that there are no Regulations on the subject referred in Section 221 nor in the Rules 2016, the Revenue Court Manual which was in force on the date of commencement of the Code-2006 continues to remain in force to the the extent it is not inconsistent to the provisions of said Code-2006 as it has neither been amended, reascended or repealed by any regulations made under the said provision. In this context it is necessary to refer to Rule 426 to 430-A of the Revenue Court Manual, which read as under:-

"426. Registered clerk of Revenue Agent--All revenue agents and legal practitioners who wish their clerks to do all or any of the acts mentioned in Rule 56, Chapter I shall get such clerks registered with the presiding officer of the Court giving their full names, parentage, castes and addresses, which shall be entered in a register to be kept by the Court.

426A. (I) No person shall be registered unless he can read and write Hindi fluently.

(ii) The lawyer applying must certify that the clerk bears a good moral character and is a suitable person to be registered as clerk.

426B. Not more than two clerks shall be registered for a practising lawyer.

426C. A registered clerk shall not be allowed to work for more than one lawyer.

427. In the case of Courts subordinate to the Collector situated at the headquarters of a district or tahsil, the clerks need only be registered in the Court of the Collector, or Tahsildar, as the case may be. The register, and all subsequent changes made therein, shall be circulated to all revenue Courts at the district to tahsil headquarters for their information.

428. All changes in their registered clerks shall be duly notified by revenue agents for being entered in the register.

429. No unregistered clerk shall be allowed to act on behalf of the employer in any revenue Court.

430. The presiding officer of any Court may remove from the register the name of any clerk who is guilty of any misconduct rendering him unsuitable for the exercise of his duties as a clerk, or is convicted or any offence involving moral turpitude and may refuse to register such a clerk if an application is made subsequently for the registrant

Provided that presiding officers subordinate to the Collector shall exercise his power subject to the control of the Collector.

Note: Rules 426 to 430 shall apply mutatis mutandis to legal practitioners, other revenue agents, practising in revenue Courts.

[430A Registered Clerks of practising Lawyers:- Revenue Courts shall allow the registered clerks of lawyers practising before them.

(1) To present (a) applicants signed by their employer for--

(I) copies;

(ii) return of documents;

(iii) repayment of deposits;

(iv) inspection of records;

(b) All applications similarly signed of a routine nature.

(2) to take delivery of copies;

(3) to tender money;

(4) to identify persons verifying affidavits;

(5) to take notes from cause lists;

(6) to present appeals on behalf of employer; and

(7) to present plaints on behalf of employers;

Provided that these clerks shall not be allowed to inspect records."

The clerks attached to any legal practitioner or revenue agent is necessarily required to be got registered with the Presiding Officer of the Court giving his full name, parentage etc. which is required to be entered in a register to be kept by the Court. Here the term 'Court' obviously refers to a Revenue Court. Rule 429 says that no unregistered clerk shall be allowed to act on behalf of his ''employer' which obviously means the revenue agent or legal practitioner referred in Rule 426 of any Revenue Court.

In the case at hand, the petitioners have themselves averred in paragraph 5 of the writ petition that they are registered with Advocates in the Civil Court in District Raebareli and this is also evident from the identity cards annexed as Annexure-1 to the writ petition which refers to Civil and Criminal courts, therefore, there is nothing on record to show that the petitioners are registered under Rule 426 etc. of the U.P. Revenue Court Manual with any Advocate for working in any Revenue Court. Even if the petitioners were registered under the U.P. Revenue Court Manual, Section 430-A, which is very important, and has also been quoted hereinabove, provides that under it Revenue Courts shall allow the registered clerks of lawyers practicing before them, inter-alia, to present application signed by their employer for 'inspection of records'. Now this provision very categorically says that all that the revenue courts shall allow the registered clerks of legal practitioners before them to do is to present applications signed by their employer for inspection of records" and not to themselves inspect the records. Even under sub rule 1(b) of 430-A such registered clerks would be allowed to present all applications similarly signed of a routine nature as mentioned in clause 2 to 7, none of which allows them to inspect the records. In fact, the proviso to the said provision puts the controversy at rest by categorically providing that that "provided that these clerks shall not be allowed to inspect the records", therefore, the prescription and the conditions referred in Section 221, as of now, are those which are contained in U.P. Revenue Court Manual, provisions of which have been referred and quoted above and they do not permit inspection of records even by registered clerks of legal practitioners.

In view of the above, there is no reason for this Court to take a view different from the view that had been taken earlier by a Co-ordinate Bench, of which one of us (Rajan Roy, J) was a member while deciding the Writ Petition No. 5319 (MB) of 2018.

In view of the above, the writ petition lacks merit and is dismissed.

Let a copy of this order be sent to the Chairman, Board of Revenue for being circulated to all the Revenue Courts/Authorities subordinate to it for compliance of the relevant provisions of law unless any contrary provision is made under section 234 of the Code-2006 or the Rule 430-A as the case may be.

The writ petition is accordingly dismissed.

 

 
Order Date :-05.03.2019
 
Vijay                                          (Rajan Roy, J)        (Devendra Kumar Arora, J)