Allowed

Smt. Sukarma Devi v. State of U.P. and 3 Ors.

Allahabad HC17 May 2019WRIC/25993/2013

Case brief

AI extract

What is this about?

This single judge High Court writ petition challenges the dismissal of a revision application by the Revisional Court on the ground of limitation. The petitioner claimed ignorance of prior ex-parte orders until receiving an eviction notice in 2012. The High Court held that Section 333 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 does not prescribe a specific limitation, allowing appl

What did the court decide?

The order dated 28.02.2013 set aside. Writ petition allowed. Matter remanded to the Revisional Court for a fresh decision on merits.

Smt. Sukarma Devi Vs State of U.P. and 3 Ors. — Land Acquisition | Allahabad HC (2019)

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Court No. - 20 Case :- WRIT - C No. - 25993 of 2013 Petitioner :- Smt. Sukarma Devi Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Bhuvnesh Kumar Singh Counsel for Respondent :- C.S.C.,Mahesh Narain Singh

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Hon'ble Pankaj Bhatia,J.

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The present writ petition has been filed by the petitioner challenging the orders dated 28.02.2013 and 26.04.2002 passed by the respondent nos.2 and 3 respectively (Annexure Nos. 1 and 2).

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The submission of the petitioner in brief is that an order was passed on 26.04.2002 accepting the report of the Tehsildar, which was submitted by the Tehsildar on 16.03.2002 (Annexure-4 to the writ petition). The petitioner submits that the report dated 16.03.2002 was without issuing any notice to the petitioner and was an ex-parte report and no information whatsoever was given to the petitioner pertaining to the said report. The petitioner also states that the order accepting the said report (Annexure-2 to the writ petition) was also never served upon the petitioner and the same was also passed without giving an opportunity of hearing to the petitioner also.

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The petitioner claims that for the first time on 06.12.2012 based upon the said two orders passed in the year 2002, the petitioner was called upon to remove his possession, failing which her possession shall be removed by force. The said notice has been filed by the petitioner as Annexure No. 5 to the writ petition.

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As soon as the petitioner was served with the said notice dated 06.12.2012, the petitioner filed a revision under Section 333 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to the 'Act, 1950') before the Commissioner, Moradabad Division, Moradabad alongwith an application for condonation of delay. The Revisional Court vide its order dated 28.02.2013 dismissed the revision only on the

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ground that the same was barred by limitation as the revision was not filed within three years, the delay condonation application was liable to be rejected and consequently the revision was also dismissed.

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A perusal of the order dated 28.02.2013 reveals that the counsel for the petitioner had specifically argued that she was not aware of the ex-parte orders passed against her and she came to know of the said ex-parte orders on 06.12.2012 when she was served with a notice for eviction. The Revisional Court although recorded the submission of the petitioner did not even deal with the said submission and proceeded to pass an order holding that three years limitation is prescribed and thus there is a delay of 7 years and 9 months in preferring the revision, as such the delay cannot be condoned and the same was dismissed accordingly.

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Section 333 of the 'Act, 1950' confers the powers on the Commissioner to call for the records of any proceedings and to pass an order as he thinks fit. Section 333 of the 'Act, 1950' is quoted hereinbelow:-

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" [333. Power to call for cases. - (1) The Board or the Commissioner or the Additional Commissioner may call for the record of any suit or proceeding [other than proceeding under sub-section (4-A) of Section 198] decided by any court subordinate to him in which appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceeding and if such subordinate court appears to have;

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(a) exercised a jurisdiction not vested in it by law; or

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(b) failed to exercise a jurisdiction so vested, or

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(c) acted in the exercise of jurisdiction illegally or with material irregularity;

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the Board or the Commissioner or the Additional Commissioner, as the case may be, may pass such order in the case as he thinks fit.

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(2) If an application under this section has been moved by any person either to the Board or to the Commissioner or to the Additional Commissioner, no further application by the same person shall be entertained by any other of them.]"

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A perusal of the said Section makes it clear that no limitation is

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prescribed for exercise of powers under Section 333 of the 'Act, 1950' and as such it is not clear as to how the Revisional Court has recorded that three years limitation is prescribed. It appears that on the basis of Section 341 of the 'Act, 1950', whereby the provisions of the Indian Limitation Act have been made applicable to the 'Act, 1950' have been applied, the Revisional Court has resorted to the said Indian Limitation Act to record that three years limitation is prescribed.

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In the present case, the clear averment of the petitioner alongwith document on record established that the petitioner came to know of the said orders only on 06.12.2012. Thus, it was a fit case for condoning the delay in filing the revision in exercise of its powers under Section 5 of the Indian Limitation Act and the delay in filing the revision ought to have been condoned as it is established from the facts on record that the petitioner came to know of the order only on 6.12.2012. Thus, the Revisional Court has clearly erred in dismissing the delay condonation application and the revision. The order dated 28.02.2013 is wholly erroneous and deserves to be set aside.

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Accordingly, the order dated 28.02.2013 is set aside and the writ petition is allowed. The matter is remanded to the Revisional Court for decision afresh in accordance with law, on merits, expeditiously after hearing the parties concerned.

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I am not going to the question of validity of the order dated 26.04.2002, as the matter has been remanded for being considered by the Revisional Court, all the questions including non service of the notice as claimed by the petitioner, shall be looked into by the Revisional Court while hearing the matter afresh.

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No orders as to costs.

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Order Date :- 17.5.2019/SR

Smt. Sukarma Devi v. State of U.P. and 3 Ors.

Case brief

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Smt. Sukarma Devi v. State of U.P. and 3 Ors.

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