Ramesh Chandra Sati And Others vs Anand Chandra Pandey And Others

Sharad Kumar Sharma, J

List revised. None appears for the respondent of WPMS No. 2300 of 2011. But as far as the connected writ petition being WPMS No. 2127 of 2011 is concerned, the respondent is represented by the learned Senior Counsel, Mrs. Pushpa Joshi.

The matter is listed today on the Miscellaneous Applications, filed by the parties to the proceedings for taking rejoinder affidavits and supplementary affidavits on record. The same are allowed and the rejoinder affidavits, as well as supplementary affidavits, filed in support with the miscellaneous applications are taken on record. With the consent of the parties, the matter is proceeded to be heard on its own merit.

The genesis of the controversy, on which writ petition is foundationed, and which is being raised by the petitioner in the writ petitions, being aggrieved against an order dated 05.11.2010, as passed by the District Magistrate, Nainital in Miscellaneous Case No. 51/1 of 2008-2009, Anand Chandra Pandey v. Ramesh Chandra Sati and another, as contained in Annexure-8 to the writ petitions. The District Magistrate, Nainital in a proceedings under Section 34 to be read with Section 35 of the Land Revenue Act, 1901, which has reached upto the Revisional Court, in fact, is shown to have exercised its power of recall by attracting the provisions contained under Section 151 of CPC to be read with sub Section (2) of Section 216 of the U.P.Z.A. & L.R. Act, and while exercising the aforesaid power, the Court has proceeded to allow the application and consequently by the impugned order dated 15.11.2010, the District Magistrate has set aside the order dated 27.03.2008, as rendered in Appeal No. 52/23 of 2007-08, Anand Chandra Pande v. Ramesh Chandra Sati and another, and consequently, the matter was directed to be fixed for hearing afresh on its own merits.

Though the matter emanates from the proceedings under Section 34 to be read with Section 35 of the Land Revenue Act, which is a summary proceedings in view of the provisions contained under Section 40A of the Land Revenue Act, 1901, and any adjudication made would always be a subject matter falling within the ambit of Section 40A of the Land Revenue Act. But still that may not be a matter of much concern at this stage, because here its the exercise of powers by the Collector in recalling the order passed in an appeal has been done by invoking the provisions contained under Section 151 of CPC to be read with sub Section (2) of Section 216 of the U.P.Z.A. & L.R. Act, which itself under due to lack of competence, and due to the applicability of the provisions itself under which power has been exercised.

This Court is pained to observe that the provisions of the Land Revenue Act is under an exclusive Act which is special in nature and is a self contained Act, which contains its procedure which governs its proceedings under Chapter 9. Once the procedure itself is inscribed in the statute and particularly when the statute itself does not attracts the application of the provisions contained under the Code of Civil Procedure, this Court is of the view that the provisions of Section 151 of CPC, invoked for recalling of an order passed by the Appellate Court in exercising its power under Section 210 of the Land Revenue Act, would not be applicable or attracted, because even otherwise the order was appellable, because even otherwise also the provisions of Section 151 of CPC in view of the judgement of the Hon'ble Apex Court as rendered in State of U.P. and others v. Roshan Singh (Dead) by LRs and others, reported in AIR 2008 SC 1190, has held as under:-

"7. The 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. Similar is the position vis-à-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 are concerned. Undisputedly, an aggrieved person is not remediless less under the Act.

The 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."

The Hon'ble Apex Court in a judgement as rendered in National Institute of Mental Health and Neuro Sciences v. C. Parameshwara, reported in AIR 2005 SC 242, has held as under:-

"12. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal:AIR1962SC527, it has been held that inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In the present case, as stated above, Section 10 CPC has no application and consequently, it was not open to the High Court to bye-pass Section 10 CPC by invoking Section 151 CPC."

The aforesaid judgement provides that the inherent powers contemplated under Section 151 of CPC would only be attracted to govern the proceedings, which are regulated by the provisions contained under the Code of Civil Procedure and that too only under those circumstances only where the CPC is silent in its applicability with regards to the aspect which is being sought to be dealt with by invoking the provisions contained under Section 151 of CPC, hence in view of the aforesaid ratio of the Hon'ble Apex Court, when Section 151 of CPC, itself has been made in its restrictive application even in those proceedings governed by the CPC, at least the said provision cannot be extracted to be made applicable exclusively in a procedure contemplated under Chapter 9 of the Land Revenue Act, 1901. This is one aspect of the matter why the order impugned cannot be sustained.

Another reason which has been assigned by the District Magistrate for exercising its powers under sub Section (2) of Section 216 of the U.P.Z.A. & L.R. Act, it is ridicules to observe that the provisions contained under Section 216 of the U.P.Z.A & L.R. Act, which is quoted hereunder:-

"216. Hypothecation of produce towards payment of rent. - The produce of every holding in the cultivation of an asami and the fruit of every tree in such holding shall be deemed to be hypothecated for tire rent payable by him in respect of the holding and until the rent has been paid or otherwise satisfied, no other claim on such produce or fruit shall be enforced by sale thereof in execution of a decree or order of a Court."

It is contemplating altogether a different circumstances and situation, which will not be applicable to recall order passed in Appeal under Section 210 of the Land Revenue Act.

Section 216 of the Act absolutely deals with a different aspect pertaining to the hypothecation to produce towards the payment of rent and the said provision doesn't even include in its any sub Section (2) as such. Hence, the provisions contained under sub (2) of Section 216 of the U.P.Z.A & L.R. Act, alleged in the impugned order, first of all, it is not existing in the statue and even if it is an existence, it does not contemplate a power to recall an order passed in the proceedings under Section 210 of the Land Revenue Act and thus since the very basis of exercising of power is contrary to the statute is not sustainable, the impugned order dated 15.11.2010, as passed by the District Magistrate, Nainital in Miscellaneous Case No. 51/02 of 2008-09, Anand Chandra Pandey v. Bhuwan Chandra Joshi and others, as well as the order passed in Miscellaneous Case No. 51/01 of 2008-09, Anand Chandra Pandey v. Ramesh Chandra Sati and others cannot be permitted to be maintained. The same are consequently set aside and the writ petitions are allowed.