Allowed

Smt. Phulau and Another v. State of U.P. Thru. District Magistrate, Pratapgarh and Others

Allahabad HC22 Jan 2025A227/5536/2024

Case brief

AI extract

What is this about?

Petitioners challenged the recall of an interim stay granted on admission of their revenue appeal under Section 35 of the U.P. Revenue Code, 2006, which was recalled ex parte next day on a caveat report. The High Court found the SDM's instructions misleading and quashed the recall order, restoring the interim stay.

What did the court decide?

Impugned order dated 16.10.2024 recalled by the first appellate court was quashed; interim order dated 15.10.2024 restored; liberty to respondents to move afresh against it.

Smt. Phulau and Another Vs State of U.P. Thru. District… — Property and Title | Allahabad HC (2025)

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Neutral Citation No. - 2025:AHC-LKO:4517

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Court No. - 8

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Case :- MATTERS UNDER ARTICLE 227 No. - 5536 of 2024

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Petitioner :- Smt. Phulau And Another Respondent :- State Of U.P. Thru. District Magistrate, Pratapgarh And Others Counsel for Petitioner :- Dharmendra Gupta Counsel for Respondent :- C.S.C.,Pankaj Gupta

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the petitioners. Notice on behalf of respondent nos. 1, 2 and 3 has been accepted by the office of the learned Standing Counsel. Sri Pankaj Gupta, learned counsel has accepted notice on behalf respondent no. 4-Gaon Sabha.

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Sri Diwakar Shukla, learned counsel has put in appearance on behalf of the private respondent nos. 5 to 8 and has filed his valatnama which is taken on record.

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The contention of learned counsel for the petitioners is that against an order passed under Section 35 of the U.P. Revenue Code, 2006, the petitioners have filed an appeal before the First Appellate Court i.e. the Sub Divisional Magistrate, Tehsil Kunda, District Pratapgarh which was registered on 15.10.2024.

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The appeal was admitted and till the next date the impugned order dated 09.10.2024 was stayed. The parties were also issued notice and the paper book of the mutation court was also summoned.

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It is urged that on the very next date i.e. 16.10.2024, the Court passed the impugned order wherein it was stated that the caveat was filed on the very same day, however, the Reader was on leave and apparently a correct endorsement regarding availability of caveat could not be made which resulted in passing of the order dated 15.10.2024 and since there was a caveat, accordingly, the interim order staying the operation of the order dated 09.10.2024 was recalled and thereafter notices were issued to the parties fixing 22.10.2024 is the next date.

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It is in the aforesaid backdrop that the Court had required the learned Standing Counsel by means of order dated 20.01.2025 to seek instructions and for ready reference, the same is being reproduced hereinafter:-

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"Heard learned counsel for the petitioners and learned Standing counsel for the respondent State.

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In pursuance of the order dated 21.11.2024, notices were issued to the private respondents nos.5 to 8.

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As per office report dated 13.1.2025, notice to respondent nos.5 to 8 is deemed to be sufficient.

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As none appeared on behalf of private respondents, put up this case on 22.1.2025, as fresh.

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Learned Standing counsel shall seek complete instructions including the date on which the caveat was filed before the court and specific details regarding the date of the affidavit cum postal receipts and the time inscribed thereon."

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In furtherance thereof, the learned Standing Counsel has provided the written instructions under the signatures of the Sub Divisional Magistrate, Kunda, Pratapgarh dated 21st January, 2025 wherein in paragraph 4, it has been indicated that the caveat is dated 14.10.2024, however, the notice sent to the respondents in the caveat by registered post is dated 15.10.2024 and the time for submitting the postal cover is 11:28 AM.

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It is further stated in the said instructions that after affording opportunity to the parties, the interim order dated 15.10.2024 was recalled.

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It is further stated that the appeal is now fixed for hearing on 24.01.2025 and an attempt would be made to decide the same expeditiously after hearing the parties concerned on merits.

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Sri Diwakar Shukla, learned counsel appearing for the respondent nos. 5 to 8 submits that the vakalatnama is on behalf of respondent nos. 5 in his personal capacity as well as as as power of attorney holder of the respondent nos. 6 to 8 and a copy of the registered power of attorney has also been provided to the Court for perusal and the same is taken on record.

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Since all the contesting parties are duly represented and looking into the trivial nature of the dispute, with the consent of the learned counsel for the parties, the petition is being disposed of at the admission stage itself.

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Apparently, from the record, it is not disputed that the appeal preferred by the petitioners under Section 35 (2) of the U.P. Revenue Code, 2006 came to be admitted on 15.10.2024. On the very same date, the order impugned in the appeal dated 09.10.2024 was stayed. By the same order, the next date fixed was 05.11.2024 where notices were to be issued.

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However, the record further indicates that on 16.10.2024 at the behest of the Reader, the office clerk, it appears that it was brought to the notice of the Presiding Officer that the respondents in the appeal had filed a caveat and despite the same, the interim order dated 15.10.2024 has been passed, accordingly, taking note of the aforesaid, the interim order has been recalled and the next date fixed was 22.10.2024.

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Looking into the aforesaid facts as well as the written instructions of the SDM, apparently, there is a clear discrepancy in the record and the written instructions.

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The learned counsel for the private respondents could not dispute the fact that even if at all the caveat is dated 14.10.2024 but the notices were sent to the opposite parties mentioned in the caveat/the proposed appellants, the postal receipt is dated 15.10.2024 and the time as disclosed in the written instructions of the SDM is mentioned as 11:28 AM, apparently, the caveat could not have been filed by the pre-lunch session. At best the caveat could have been entertained post lunch and there is nothing on record to indicate that the matter was heard and the order was not passed prior to that.

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In case if the private respondents had filed their caveat petition on 15.10.2024 and the matter was taken up post-lunch when the caveat as per the private respondents had become effective, there could have been as a natural response an application moved to the Presiding Officer by the private respondents who were the affected parties to bring this fact to the notice of the court concerned but the same was not done.

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Sri Shukla, learned counsel does not dispute the fact that they did not make any application to the court bringing these facts to the notice of the officers concerned, the only inference can be drawn at this stage is a fact that the Presiding Officer on his own taking note of the some reference made by the Reader recalled the order dated 15.10.2024 by an ex-parte order without calling upon any of the parties on 16.10.2024 as the order does not indicate that even the respondents were present to press the same.

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In the written instructions, in paragraph 5, it has been indicated by the SDM that the order dated 16.10.2024 was passed after affording an opportunity to the parties but this apparently appears to be an incorrect statement, inasmuch as, neither of the parties were present before the court on 16.10.2024 and there is nothing to indicate by the SDM that once on 15.10.2024 he had fixed the matter for 05.11.2024 how he served or informed the learned counsel for the appellant or the respondents in the

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appeal to appear before him on 16.10.2024.

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This apparently indicates that an attempt has been made by the SDM to mislead the Court by giving incorrect information under his signatures.

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The Court takes strong exception to the same, however, considering the nature of the controversy, apparently, the order dated 16.10.2024 cannot be sustained as not only it is ex-parte and has been passed behind the back of the parties but more importantly for the reason this has been passed at the behest of some report by the Reader without there being any cogent and substantiating reasons or an application moved by the private respondents who were the affected parties.

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Accordingly, the impugned order dated 16.10.2024 shall stand quashed. The order dated 15.10.2024 shall stand restored as it is.

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It will be open for the private respondents to move an appropriate application in case if they feel that it is necessary to challenge the interim order and in case if such an application is moved, needless to say the Court concerned shall decide the same strictly in accordance with law.

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With the aforesaid, the petition is allowed .

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Order Date :- 22.1.2025 Asheesh/-

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Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Smt. Phulau and Another v. State of U.P. Thru. District Magistrate, Pratapgarh and Others

Case brief

What is this about?

What did the court decide?

Smt. Phulau and Another v. State of U.P. Thru. District Magistrate, Pratapgarh and Others

Case brief

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What did the court decide?

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