Dismissed

Upendra Nath Chaubey and 4 Others v. State of U.P. and Another

Allahabad HC16 Apr 2019A227/1695/2019

Case brief

AI extract

What is this about?

This court dismissed a writ petition under Article 227. The petitioners challenged an order rejecting their application for restoration of a final order passed on merits after their predecessor was heard. The court held the restoration attempt was malafide, legally non-maintainable, and an abuse of court process, leading to dismissal with costs.

What did the court decide?

Petition dismissed with special costs of Rs.25,000/- to be deposited with the State Forest Department.

Upendra Nath Chaubey and 4 Others Vs… — Constitutional and Fundamental Rights | Allahabad HC (2019)

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Court No. - 30

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Case :- MATTERS UNDER ARTICLE 227 No. - 1695 of 2019

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Petitioner :- Upendra Nath Chaubey And 4 Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Abhishek Kumar Chaubey Counsel for Respondent :- C.S.C.

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Hon'ble Harsh Kumar,J.

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Heard Shri Virendra Singh, Advocate holding brief of Shri Abhishek Kumar Chaubey learned counsel for petitioners and Chief Standing Counsel for respondents.

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The petition under Article 227 of Constitution of India has been filed by petitioners being aggrieved with order dated 3.3.2016 (Annexure-4) passed by Additional District Judge, Anpara at Obra, Sonbhadra rejecting their application for condonation of delay in moving restoration application under Section 5 of Limitation Act as well as restoration application in Misc. Case No. Nil of 2016 Upendra Nath Chaubey and others vs. State through Collector and Forest Department.

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Brief facts of the case are that in respect of entire area of disputed land 1.600 hectare, upon objections raised by Sri Vashisht Chaubey, father of petitioners nos.1 to 4 and father-in-law of petitioner no.5 case no.1257 was registered in which an order was passed on 31.7.1989 by Forest Settlement Officer holding entire land area 1.600 hectare lies out of notification under Section 4 of Indian Forest Act, 1927, against which Appeal No.3769 of 1989 was allowed vide order dated 23.7.1990 setting aside order dated 31.7.1989 of Forest Settlement Officer and holding entire area of land within notification under Section 4 of Indian Forest Act, 1927. Feeling aggrieved with order dated 23.7.1990 passed in appeal, a review petition no.55/90 was filed by Sri Vashisht Chaubey, which was decided on merits upon hearing both parties counsel by Additional District Judge, Sonbhadra vide order dated 29.3.1991 allowing the review petition filed by Sri Vashisht Chaubey (predecessor in title of petitioners) partly and holding that 0.600 hectares area of fland in question lies beyond notification under Section 4

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and rest 1.000 hectares area lies under notification of Section 4 of Indian Forest Act, 1927. After a period of about 25 years petitioner nos.1 to 5 and Sanjay (son of pre-deceased Sri Vashisht Chaubey) moved an application No. Nil of 2016 for restoration with application for condonation of delay under Section 5 of Limitation Act, 1963 on 29.2.2016 for getting order dated 29.3.1991 based on review application recalled/set aside and for releasing 1.000 hectare area frem notification under Section 4 of Indian Forest Act, 1927 and also for confirming order dated 31.7.1989 passed by Forest Settlement Officer in Case No.1257.

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Undisputedly, order dated 29.3.1991, which is sought to be recalled/set aside through restoration application no. nil of 2016, was passed after hearing Vashisht Chaubey, the predecessor of petitioners and the above order was not challenged by Vashisht Chaubey or petitioners before any superior court.

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It has been stated by petitioners in paragraph 10 of application under Section 5 of Limitation Act at Annexure-1 that they had no knowledge of above order dated 29.3.1991 and during cleaning of old papers, they came across the papers and after obtaining copy of order are moving application for restoration and of order dated 29.3.1991 with prayer that by recalling order dated 29.3.1991, order dated 31.7.1989 be restored.

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There is no whisper in the applications/affidavits as to whether Vashisht Chaubey has died, and if so on which date. The petitioners have not made any specific averment in the restoration application/delay condonation application as to when (period or date) they got knowledge of order dated 29.3.1991 passed in review petition no.55/90 filed by Sri Vashisht Chaubey except a bald allegations of getting knowledge at the time of cleaning of papers.

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Upon hearing parties counsel and perusal of record, I find that since order dated 29.3.1991 has been passed on merits, no restoration application for recalling above order is legally maintainable, either by review petitioner Sri Vashisht Chaubey or

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by his heirs/legal representatives after his death. It is also noteworthy that out of 6 heirs/ legal representatives of Sri Vashisht Chaubey (petitioners and Sanjay son of pre-deceased Sri Vashisht Chaubey has not joined in filing the present petition.

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Learned counsel for petitioners failed to show as to how application for restoration is maintainable for recalling an order passed on merits after hearing the predecessor of petitioners.

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I find force in the arguments advanced on behalf of State that application for restoration has been moved mischievously with malafide intention to usurp the forest land in the garb of restoration/recall application, which has been filed with false and baseless allegations and is legally not maintainable.

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Learned counsel for State submits that application for restoration moved mischievously has been rightly rejected and present writ petition is not only frivolous and vexatious but amounts to abuse of process of court and the petitioners have not only wasted time of court below but have also wasted valuable time of this Court and petition is liable to be dismissed with special exemplary cost of Rs.1.00 lakh.

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In view of the discussions made above, I find that virtually the petitioners have no locus to move restoration application for recalling an order passed on merits after hearing their predecessor. Moreover the prayer for restoration of initial order dated 31.7.1989 passed in Case No.1257, is also misconceived as above order was set aside vide order dated 23.7.1990 passed in appeal and modified in review petition by order dated 29.3.1991, is also malafide and misconceived.

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The restoration application with application for condonation of delay without any explanation for long delay of 25 years is itself is malafide and misconceived. The learned counsel for petitioners has failed to show any manifest error, irregularity and perversity in the impugned order rejecting their application, which may require exercise of

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extra ordinary jurisdiction under Article 227 of Constitution of India by this Court.

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The frivolous, vexatious, malafide and misconceived writ petition under Article 227 of Constitution of India is abuse of process of Court and is liable to be dismissed with special cost of Rs.50,000/-, which is to be deposited/paid by petitioners to the State forest department within two months.

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However, on the request made by learned counsel for petitioners, the cost so imposed is reduced to Rs.25,000/-

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The petition is accordingly dismissed with special costs of Rs.25,000/-.

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Order Date :- 16.4.2019 VS

Upendra Nath Chaubey and 4 Others v. State of U.P. and Another

Case brief

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Upendra Nath Chaubey and 4 Others v. State of U.P. and Another

Case brief

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