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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • D.M Chandrashekhar, C.J
  • J.M.L Sinha, J.
Acts
  • provisions contained in Article 226(3) of the Constitution read with Section 58(2) of the Constitution (42nd Amendment) Act.
  • ORDER 21 RULE 54 CIVIL PROCEDURE CODE
  • Article 226(3) read with Section 58(2) of the Constitution (42nd Amendment) Act,
  • Section 58(2) of the Constitution (Forty-second Amendment) Act, 1976,
  • Rule 273-A of the Zamindari Abolition and Land Reforms Rules,
  • Zamindari Abolition and Land Reforms Rules
  • provisions of sub-section (1),
  • provisions of Article 226
  • Order 21, Rule 54, CPC
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • D.M Chandrashekhar, C.J
  • J.M.L Sinha, J.
Acts
  • provisions contained in Article 226(3) of the Constitution read with Section 58(2) of the Constitution (42nd Amendment) Act.
  • ORDER 21 RULE 54 CIVIL PROCEDURE CODE
  • Article 226(3) read with Section 58(2) of the Constitution (42nd Amendment) Act,
  • Section 58(2) of the Constitution (Forty-second Amendment) Act, 1976,
  • Rule 273-A of the Zamindari Abolition and Land Reforms Rules,
  • Zamindari Abolition and Land Reforms Rules
  • provisions of sub-section (1),
  • provisions of Article 226
  • Order 21, Rule 54, CPC
See more information ...
Smart Summary

Structured Summary of the Opinion — Shanti Devi v. State / Respondents

Factual and Procedural Background

This writ petition was filed by Smt. Shanti Devi (the petitioner) seeking quashing of an order (Annexure 8) issued by respondent No. 3 directing her dispossession from one-third of house No. 75, Nakhas Kohna, Allahabad.

Relevant factual averments in the petition: Gur Bachan Singh took a loan from the Industries Department, Uttar Pradesh. Sharda Prasad (respondent No. 7) stood as surety and was said to own one-third of the house. Upon default by Gur Bachan Singh, a recovery certificate was issued and a one-third portion of the house was auctioned on 17 October 1975 and purchased by Nand Kishore (respondent No. 5). On 6 March 1976 the petitioner and her family were dispossessed by police from the western half of the house.

The petitioner asserted that Sharda Prasad had, in fact, sold his share on 26 December 1960 and therefore had no interest to hypothecate at the time he stood surety. The petitioner claimed title (through a series of transactions) to one half and co-ownership of the other half such that she effectively owned the house or was in occupation of a substantial portion. The sale and subsequent dispossession were challenged as illegal and without jurisdiction.

The State and respondent No. 5 opposed the petition. Proceedings in the High Court examined documentary annexures, parties' affidavits and statutory rules purportedly governing attachment and sale.

Legal Issues Presented

  1. Whether Sharda Prasad had any legal interest in the house at the time he stood surety and, if not, whether the attachment and auction of one-third of the house were invalid.
  2. Whether statutory formalities governing attachment and sale (particularly Rule 273-A of the Zamindari Abolition and Land Reforms Rules read with Order 21, Rule 54 CPC and related provisions) were complied with, and if non-compliance rendered the sale void or vitiated.
  3. Whether the petitioner had effective alternate remedies (under the Zamindari Abolition and Land Reforms Rules — Rule 285-H — or by way of a regular suit) such that the writ petition was barred or abated under Article 226(3) of the Constitution read with Section 58(2) of the Constitution (Forty-second Amendment) Act.
  4. Whether deprivation of possession in the circumstances amounted to deprivation “by authority of law” and engaged the petitioner’s fundamental rights (Articles 19(1)(f) and 31(1)) so as to render Article 226(3) inapplicable.
  5. Whether the High Court, even though the petitioner prayed only for quashing the dispossession order, could mould relief to restore possession if the impugned action was without authority of law.

Arguments of the Parties

Petitioner's Arguments

  • Documentary annexures showed Sharda Prasad had transferred his share on 26 December 1960 and therefore had no interest left when he stood as surety; he could not hypothecate or cause sale of any part of the house.
  • Under Rule 273-A of the Zamindari Abolition and Land Reforms Rules, attachment must follow the procedure in Order 21, Rule 54 CPC; an order in Form 73-D should be issued. These procedures were not followed, so the petitioner was unaware of attachment/sale until dispossession by police.
  • Formalities for proclamation and conduct of sale under the Zamindari Abolition and Land Reforms Rules were not duly complied with, preventing the petitioner from making objections within the statutory time.

Respondents' Arguments

  • The petitioner had the opportunity to file objections at the time of attachment and/or sale but did not do so; she cannot now raise those objections in writ proceedings.
  • The petitioner had alternative remedies under the Zamindari Abolition and Land Reforms Rules (notably Rule 285-H) or by instituting a regular suit; therefore the petition has abated under Article 226(3) of the Constitution read with Section 58(2) of the Constitution (Forty-second Amendment) Act.
  • Because respondent No. 5 had entered into possession after the sale, granting the relief sought (quashing alone) would be futile, and the petition should be dismissed on that basis.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Bijli Cotton Mills (Pvt.) Ltd., Hathras v. Estate Officer/Secretary, National Textile Corporation (U.P.) Ltd., 1977 AWC 191 (Full Bench) Establishes that a suit can be an alternative remedy under Article 226(3) only if it is effective and adequate. The Court relied on this authority to conclude that a regular suit would not be an adequate and efficacious remedy in the present facts because it would take many years for the petitioner to regain possession; hence the remedy by suit did not bar writ jurisdiction in this case.
Pramod Kumar v. Badri Narain Pandey, 1977 AWC 426 Affirms the High Court's wide powers under Article 226 to issue appropriate directions (including restoration of possession) where action is without jurisdiction and arbitrary, and to mould relief beyond the exact prayer to redress hardship. The Court applied this principle to justify not only quashing the impugned dispossession order but also directing restoration of possession to the petitioner, despite the petition praying only for quashing.

Court's Reasoning and Analysis

The court proceeded in a stepwise manner applying documentary evidence, statutory rules and constitutional law:

  1. Title and Capacity of Surety: The annexed sale-deeds supported the petitioner's contention that Sharda Prasad had already transferred his share (26 December 1960) and therefore had no interest at the time he stood surety. The court accepted that he could not hypothecate or cause sale of any part of the house.
  2. Procedural Compliance for Attachment and Sale: The court examined Rule 273-A of the Zamindari Abolition and Land Reforms Rules, which requires attachment to follow Order 21, Rule 54 CPC (prohibition order, proclamation by customary mode, affixing copy on property and at court-house). The petitioner averred non-compliance; the State’s counter-affidavit did not address attachment and respondent No. 5’s affidavit (late-filed) was silent on attachment and merely asserted that sale formalities were completed. On the material, the court found the petitioner’s contention that the attachment formalities were not complied with remained uncontroverted and appeared more probable.
  3. Effect of Non-Compliance: Because statutory rules regarding attachment were not shown to have been complied with, the court concluded that the auction and dispossession were vitiated and constituted a sufficient ground to quash the dispossession order.
  4. Alternative Remedies under Statute: The court considered Rule 285-H (Zamindari Abolition and Land Reforms Rules) which permits application to set aside a sale within thirty days. The sale had been confirmed on 2 December 1975; the petitioner averred she only learned of the sale after dispossession on 6 March 1976. Thus she had no realistic opportunity to invoke the statutory remedy within time; that remedy was lost to her.
  5. Alternative Remedy by Suit and Constitutional Bar: The respondents argued that Article 226(3) (as read with Section 58(2) of the Forty-second Amendment) barred the petition because alternate remedies existed. Relying on Bijli Cotton Mills, the court held a suit is an alternative remedy only if effective and adequate. Given the petitioner’s immediate dispossession and the long time a suit would take to restore possession, a suit was not an adequate remedy in the circumstances. Therefore Article 226(3) and Section 58(2) did not apply to bar the petition.
  6. Fundamental Rights Aspect: The court observed Clause (3) of Article 226 applies only to redress of injuries in sub-clauses (b) or (c) of clause (1) and not to petitions under sub-clause (a) which concern enforcement of fundamental rights. The court held the petitioner sought enforcement of fundamental rights under Chapter III (citing Article 19(1)(f) and Article 31(1)). Because the deprivation was not by authority of law (statutory rules were not complied with and Sharda Prasad had no title), the impugned dispossession could not be characterized as lawful deprivation; consequently Article 226(3) read with Section 58(2) did not cause abatement.
  7. Moulding Relief: The court referred to Pramod Kumar to affirm its power under Article 226 to mould appropriate relief where action is without authority of law and arbitrary. On that basis the court held that even though the petition prayed only for quashing the dispossession order, it was competent to direct restoration of possession to the petitioner.

Holding and Implications

Holding:

The petition is allowed. The order passed by respondent No. 3 directing dispossession of the petitioner from one-third portion of house No. 75, Nakhas Kohna, Allahabad (Annexure 8) is quashed, and the respondents are directed to restore possession of that portion to the petitioner. No order as to costs was made.

Implications:

  • Direct effect: The dispossession order was quashed and the petitioner is to be restored to possession of the specified one-third portion of the house. Respondent No. 5, who purchased at auction, is to yield possession as directed by the Court.
  • On remedies: The decision explains that statutory remedies can be ineffective when a person is unaware of proceedings because procedural formalities for attachment and sale were not complied with; loss of knowledge can render statutory time limits inapplicable in practice.
  • On writ jurisdiction: The Court reaffirmed that Article 226 remains available where alternative remedies are not adequate or where fundamental rights are infringed by action not taken “by authority of law.”
  • Precedential or wider legal change: The opinion rests on application of existing authorities (Bijli Cotton Mills and Pramod Kumar) and statutory/constitutional provisions; the text does not state that any new legal precedent was laid down beyond applying established principles to these facts.

This summary is limited strictly to the matters contained in the provided opinion and does not add facts or inferences not present in the source text.

Show full summary ...

    Smt. Shanti Devi v. State Of U.P And Others

    J.M.L Sinha, J. (for self and for D.M Chandrashekhar, C.J):— This writ petition has been filed by Smt. Shanti Devi, hereinafter called the ‘petitioner’, praying that the order passed by respondent No. 3 directing dispossession of the petitioner from one third of house No. 75 situate in Nakhas Kohna, Allahabad, be quashed.

    2. The facts leading up to this petition can briefly be stated as under:

    3. One Gur Bachan Singh took a loan from the Industries Department of the State of Uttar Pradesh for starting an industry. Sharda Prasad son of Chhotelal, respondent No. 7, offered himself as one of the sureties for repayment of the loan advanced to Gur Bachan Singh. He claimed himself to be the owner to the extent of one-third share in the aforesaid house. The loan not having been repaid and Gur Bachan Singh having become insolvent and not being traceable, a certificate was issued by Collector, Allahabad, for recovery of the amount due as arrears of land revenue. In that connection one third portion of the aforesaid house was sold by auction on 17th of October, 1975 and was purchased by Nand Kishore, respondent No. 5. On 6th of March, 1976, the petitioner and her family members were dispossessed from the western half of the house through police force. The petitioner's case is that Sharda Prasad son of Chhotelal had only one-fourth share in the said house which he had sold away to Bachcha Lal on 26th of December, 1960. On 22nd of March, 1966, Mohan Lal, who also had one-fourth share in the said house, together with Bachcha Lal, who had purchased one-fourth share of Sharda Prasad, sold their shares viz. one-half of the house in question, in favour of the petitioner. On 9th of October 1974, the heirs of Bankey Lal, to whom the remaining one-half share in the house belonged, transferred that share to the petitioner and her husband. The petitioner thus became the sole owner of one half share and co-owner along with her husband of the remaining half share in the house. The petitioner's case further is that Sharda Prasad son of Chhotelal having transferred his share in the house on 26th of December, 1960, had neither any interest therein on the date he stood surety for Gur Bachan Singh nor could he hypothecate any part of the house and, consequently, the sale by auction of one third part of the house in question was wholly illegal and without jurisdiction. The petition has been opposed on behalf of the State as well as by Nand Kishore, respondent No. 5.

    4. In view of the copies of sale-deeds annexed with the petition, it could not be seriously controverted before us on behalf of the respondents that Sharda Prasad son of Chhotelal had transferred his share in the house in question and that he had no interest left therein on the date he stood surety for Gur Bachan Singh. It should, therefore, be accepted that Sharda Prasad son of Chhotelal could neither hypothecate any part of the house in question in favour of the State in his capacity as surety nor could any part of that house be sold in satisfaction of the dues outstanding against Gur Bachan Singh. Learned counsel for the respondents, however, contended that it was open to the petitioner to file objections when the house was attached and later when the sale took place. Learned counsel stressed that, since the petitioner did not raise any objection either at the time of the attachment of the house or at the time of its sale, it is not open to her now to come up in writ proceedings and claim possession of the house on the ground that the sale was invalid.

    5. Learned counsel for the petitioner in reply urged that, according to Rule 273-A of the Zamindari Abolition and Land Reforms Rules, the attachment of immovable property has to take place in accordance with Order 21, Rule 54, CPC and an order to the defaulter is to be issued in Form 73-D, but no compliance thereof was made with the result that the petitioner could not know about the proceedings in which the house was auctioned till she and her family were dispossessed through police force. Learned counsel urged that the petitioner could know of these proceedings only after she made inspection of the record subsequent to her being dispossessed from the house. Learned counsel further urged that the formalities prescribed under the Zamindari Abolition and Land Reforms Rules regarding proclamation and conduct of sale were also not duly complied with.

    6. A perusal of Rule 273-A shows that attachment of an immovable property in proceedings for recovery of land revenue has to be done in the manner prescribed in Order 21, Rule 54 of the Civil Procedure Code. According to Order 21, Rule 54, CPC the attachment of immovable property is to be made by an order prohibiting the judgment debtor from transferring or charging the property in any way. It further requires that the order shall be proclaimed at some place on, or adjacent to such property by beat of drum or other customary mode and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house. It was explicitly averred by the petitioner in her affidavit that the entire proceedings regarding attachment and sale of the house were total farce and that the necessary requirements in the matter of attachment and sale were not complied with. These facts were reiterated in the rejoinder-affidavit filed on behalf of the petitioner. In the counter-affidavit sworn on behalf of the State nothing is said about the attachment though about the sale it is said (para 18) that the sale proclamation was duly made on 25th of July, 1975 and the auction took place thereafter. In the counter-affidavit of respondent No. 5, which was filed at a very belated stage, again nothing is stated about attachment. All that is said is that the auction took place after duly completing the requisite formalities (para 19). It would thus appear that, the contention of the petitioner that the formalities required by law in regard to the attachment of the house, remained uncontroverted. That apart, the contention of the petitioner in that connection even otherwise appears to be more natural and probable. A perusal of the annexures to the petition leaves no room for doubt that the petitioner had acquired tide over the entire house. If the attachment of the property had taken place in the manner required by law, the petitioner could very well know about the proceedings and the fact that one-third portion of her house was proposed to be sold on the premise that it belonged to Sharda Prasad son of Chhotelal. In that case the petitioner would not have omitted to file objections in order to safeguard her own interest in the house.

    7. We, accordingly, accept that, on the basis of the material on record, it cannot be held that the statutory rules in regard to the attachment of the house were complied with before one-third of the house of the petitioner was auctioned in favour of respondent No. 5. This constitutes a sufficient ground for quashing the order by which the petitioner was dispossessed from the house.

    8. Learned counsel for the respondents then contended that, in any case, the petitioner had an alternative remedy first under the Zamindari Abolition and Land Reforms Rules and then by way of a suit. Learned counsel urged that, consequently, it must be held that the petition has abated under Article 226(3) of the Constitution.

    9. So far as the remedy under the Zamindari Abolition and Land Reforms Rules is concerned, it has been sworn on behalf of the petitioner in the affidavit accompanying the petition, as also in the rejoinder-affidavit, that the petitioner came to know about the auction only after she and her family had been dispossessed from it through police force. If the petitioner was not aware of the attachment of the house and of the sale, there was no question of her seeking any remedy under the Zamindari Abolition and Land Reforms Rules. It may further be added that the only remedy provided under the Zamindari Abolition and Land Reforms Rules is that con-tamed under Rule 285-H and under that rule a person can apply for the sale being set aside within thirty days of the date of the sale. It was common ground before us that the sale took place on 17th October, 1975 and was confirmed on 2nd of December, 1975. According to the affidavits sworn on behalf of the petitioner, which we have no reason to disbelieve, she came to know about the sale after 6th of March, 1976 when she was actually dispossessed from the house. The remedy under the Zamindari Abolition and Land Reforms Rules was by then lost to her.

    10. This takes us to the second limb of the objection, namely, that the petitioner had an alternative remedy by way of a regular suit and, consequently, in view of Article 226(3) read with Section 58(2) of the Constitution (42nd Amendment) Act, the petition must be held to have been abated. Article 226(3) of the Constitution reads as under:

    “No petition for the redress of any injury referred to in sub-clause (b) or sub-clause (c) of clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force.”

    11. The relevant part of Section 58(2) of the Constitution (Forty-second Amendment) Act, 1976, reads:

    “In particular, and without prejudice to the generality of the provisions of sub-section (1), every pending petition before a High Court which would not have been admitted by the High Court under the provisions of Article 226 as substituted by Section 38 if such petition had been made after the appointed day, shall abate and any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceedings relating to, such petition shall stand vacated:

    …………………………

    12. In Bijli Cotton Mills (Pvt.) Ltd. Hathras v. Estate Officer/Secretary, National Textile Corporation (U.P) Ltd., 1977 AWC 191, a Full Bench of this Court opined that a suit can be an alternative remedy within the meaning of Clause (3) of Article 226 of the Constitution provided it is effective and adequate. In the instant case, the petitioner, who lived in the house in question along with other members of the family, was dispossessed from it under an order which was grossly illegal. It is a matter of common knowledge that a suit takes a long time before it is finally decided. It would, therefore, take the petitioner several years before she is able to regain the possession of the house in question by filing a suit. Under these circumstances we do not think that the alternative remedy by way of a suit could constitute an adequate and efficacious remedy. Article 226(3) read with Section 58(2) of the Constitution (42nd Amendment) Act will not, therefore, apply in the instant case.

    13. The matter can be looked at from another angle as well. Clause (3) of Article 226 would apply only where the petition is filed for redress of injuries referred to in sub-clause (b) or sub-clause (c) of clause (1) of that Article, it will not apply to a petition falling under sub-clause (a) of clause (1) which refers to the enforcement of any fundamental right. According to Article 19(1)(f) of the Constitution all citizens have a right to hold their property. According to clause (1) of Article 31 of the Constitution no person can be deprived of his property save by authority of law. Now, in the instant case, we have already demonstrated earlier that the house in question belonged to the petitioner. Sharda Prasad son of Chhotelal did not have any share in it on the date on which he stood surety for Gur Bachan Singh. It was, therefore, not open to the State to auction any part of the house treating it to belong to Sharda Prasad son of Chhotey Lal. In any case, before dispossessing the petitioner, it was necessary for the State to comply with the statutory rules relating to the attachment of the house. As concluded by us earlier, it was not shown that the statutory rides were complied with and, consequently, it cannot be said that the petitioner was deprived of her house by authority of law. Consequently, the petitioner, while praying for the quashing of the order, under which she was dispossessed from the house, seeks to enforce her fundamental right under Chapter III of the Constitution. That being the position, it cannot be held that the petition has abated in view of the provisions contained in Article 226(3) of the Constitution read with Section 58(2) of the Constitution (42nd Amendment) Act.

    14. Learned counsel for the respondents then invited our attention to the prayer contained in the writ petition. It was pointed out that the petitioner has only asked for the quashing of the order under which she was dispossessed from the house. Learned counsel stressed that since the petitioner has already been dispossessed and respondent No. 5 has entered into possession over the house, it will be futile to grant the relief asked for and, consequently, the petition should be dismissed. We have given our careful thought to this contention, but we are unable to agree.

    15. Where the impugned action is without the authority of law, the Court can mould the appropriate relief to redress the injury, whatever might have been the relief the aggrieved party had prayed for. In the case of Pramod Kumar v. Badri Narain Pandey, 1977 AWC 426 the petitioner was evicted from a house in his occupation under an order of the Additional District Magistrate which was wholly without jurisdiction. While dealing with the case of the petitioner, the Division Bench observed:

    “We have no doubt that in exercise of its jurisdiction under Article 226 where it is established that arbitrariness has been perpetrated and the conscience of the Court is aroused, an appropriate direction can always be issued to redress the hardship suffered by the petitioner and restore the status quo ante. The language of Article 226 of the Constitution is advisedly wide and confers ample power on the High Court to afford complete relief to a party which has made out a case for exercise of the writ jurisdiction.”

    16. With the aforesaid observation the Division Bench allowed the writs and directed the respondents to restore the possession of the accommodation in dispute to the petitioner.

    17. In our opinion the observation made in the aforesaid case apply on all fours to the facts of the present case. We are, accordingly of the view that, while quashing the order passed by respondent No. 3 directing dispossession of the petitioner (Annexure 8 of the writ petition) we can also direct the respondents to restore possession of the house in question to the petitioner. The petition is, accordingly, allowed. The order passed by respondent No. 3 (Annexure 8 of the writ petition) directing dispossession of the petitioner from one-third portion of house No. 75, Nakhas Kohna, Allahabad, is quashed and it is directed that the petitioner be restored possession over the same. No order, however, is made as to costs.

    K.J.C

    18. Petition allowed.

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    Comments

    Smt. Shanti Devi v. State Of U.P And Others
    (Feb 2, 1978)