Rajesh Kumar Vs State of U.P. Thru. Secy. Board of Revenue, Lko. and Others — Allahabad HC (2024) — LawSathi Research

Rajesh Kumar Vs State of U.P. Thru. Secy. Board of Revenue, Lko. and Others — Allahabad HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Writ petition allowed; writ of certiorari issued and the impugned order dated 26.06.2023 passed by the Nayab Tehsildar, Kadipur, District Sultanpur set aside; the application for recall alongwith the application under Section 5 of the Limitation Act restored to respondent no.4 for fresh consideration of condonation of delay after hearing the affected parties, with the merits to be taken up only thereafter.

Issue for consideration

Whether the impugned order dated 26.06.2023 passed by the Nayab Tehsildar, Tehsil Kadipur, District Sultanpur, allowing recall of the order dated 21.11.1954 after more than 36 years without issuing notice to the affected parties and without giving any opportunity of hearing, is sustainable. +1 more

Court's answer

The impugned order is per se against the dictum of this Court in Ram Prakash Vs. Deputy Director of Consolidation and others (2022 SCC OnLine All. 107) and Smt. Ghasita Vs. Board of Revenue, Lucknow & others (2024:AHC-LKO:54439); in view thereof, the impugned order cannot be sustained.

Ratio / Principle

A writ in the nature of certiorari is issued and the impugned order dated 26.06.2023 passed by the Nayab Tehsildar, Kadipur, District Sultanpur is set aside.

Key takeaways

The application for recall alongwith the application under Section 5 of the Limitation Act stands restored; respondent no.4 is directed to first consider the application for condonation of delay after affording full opportunity of hearing to the affected parties, without granting unnecessary adjournments, and only if the cause shown is found sufficient and the application is allowed, take up the matter on its own merits.ratio¶15
The Court has not examined the merits of either of the parties; the court below shall pass appropriate orders in light of the observations made, i.e., the merits are expressly left open.obiter¶16

Detailed headnote1 paragraphs

Certiorari — Recall of order dated 21.11.1954 allowed by Nayab Tehsildar, Kadipur, District Sultanpur by order dated 26.06.2023 after more than 36 years, without issuing notice to the affected parties and without opportunity of hearing, and without deciding the application under Section 5 of the Limitation Act — Held, the impugned order is per se against the dictum of this Court in Ram Prakash Vs. Deputy Director of Consolidation and others, 2022 SCC OnLine All. 107 and Smt. Ghasita Vs. Board of Revenue, Lucknow & others, 2024:AHC-LKO:54439, and cannot be sustained — Impugned order set aside; recall application and Section 5 application restored; respondent no.4 to first decide condonation of delay after affording full opportunity of hearing to affected parties, without unnecessary adjournments, and only if allowed, take up the matter on merits — Court did not examine merits of either party — Writ petition allowed (Jaspreet Singh, J.; decided 13.08.2024).

Neutral Citation No. - 2024:AHC-LKO:55955

Court No. - 8

Case :- WRIT - C No. - 4400 of 2024

Petitioner :- Rajesh Kumar Respondent :- State Of U.P. Thru. Secy. Board Of Revenue, Lko. And Others

Counsel for Petitioner :- Dilip Kumar Gautam Counsel for Respondent :- C.S.C.,Atul Kumar Mishra,J.P. Shukla,Mohan Singh,Rajesh Kumar Shukla

Hon'ble Jaspreet Singh,J.

Heard learned counsel for the petitioner, learned Standing Counsel for the Staterespondents, Shri Mohan Singh, learned counsel for the Gaon Sabha, Shri Rajesh Kumar Shukla, learned counsel for the private respondents no.8 and Shri Ravindra Pandey appearing under the authority of Shri J. P. Shukla for the private respondents no.6 and 7.

Under challenge is the order dated 26.06.2023 passed by the Nayab Tehsildar, Tehsil Kadiput, District Sultanpur whereby he has allowed an application for recall of an order after more than 36 years without issuing notice to the affected parties and without giving any opportunity of hearing. A Co-ordinate Bench of this Court by means of order dated 31.05.2024 had required the Nayab Tehsildar who had passed the said order to file his personal afÏdavit.

Since the said afÏdavit was not filed despite time having been granted, accordingly this Court by means of order dated 07.08.2024 required the respondent no.4 to appear in person.

In furtherance thereof, today Shri Anil Kumar Singh has appeared and filed his personal afÏdavit indicating that the then Nayab Tehsildar, namely, Anil Srivastava, son of Shri Banarsi Lal Srivastava has demitted ofÏce and the present incumbent has taken charge on 17.02.2024. It is thus submitted that the impugned order dated 26.06.2023 was not passed by the present incumbent. He has filed

his personal afÏdavit which is taken on record.

In pursuance of the earlier order, Shri Anil Kumar Singh, Nayab Tehsildar has appeared and his appearance is dispensed with.

In the aforesaid backdrop, the Court has heard the learned counsel for the parties and also perused the material on record.

Learned counsel for the private respondents no.6 and 7 could not dispute the fact that the application for recall was moved after more than 36 years. He also could not dispute the fact that even without issuing notice on the application under Section 5 of the Limitation Act, the order dated 21.11.1954 has been stayed. In such circumstances where the order impugned is per se against the dictum of this Court in Ram Prakash Vs. Deputy Director of Consolidation and others, 2022 SCC OnLine All. 107 and Smt. Ghasita Vs. Board of Revenue, Lucknow & others, Writ-B NO.643 OF 2023 (N eutral citation No.-2024:AHC-LKO:54439) . In view thereof, the impugned order cannot be sustained.

Accordingly the writ in the nature of certiorari is issued and the impugned order dated 26.06.2023 passed by the Nayab Tehsildar, Kadipur, District Sultanpur is set aside. The application for recall alongwith an application under Section 5 shall stands restored and the respondent no.4 is directed to first consider the application for condonation of delay after affording full opportunity of hearing to the affected parties but without granting any unnecessary adjournments only if the cause shown is found sufÏcient and the application is allowed, then the matter may be taken up on its own merits.

It is made clear that the Court has not examined the merits of either of the parties and the Court shall pass appropriate orders in light of the observations made above.

The writ petition is allowed.

Order Date :- 13.8.2024 ank

Digitally signed by :- ALI NEWAZ KHAN High Court of Judicature at Allahabad, Lucknow Bench