Dismissed

Ramesh Prasad Godiyal v. Kamala Devi

Uttarakhand HC10 Jun 2019WPMS/1648/2019

Case brief

AI extract

What is this about?

Tenant filed writ challenging rejection of recall and review applications against orders under U.P. Urban Building Act. Court held Prescribed Authority lacks statutory power of review and dismissed petition for delays.

What did the court decide?

Writ petition dismissed; no order as to cost.

What the court decided

Ramesh Prasad Godiyal Vs Kamala Devi — Landlord and Tenant | Uttarakhand HC (2019)

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HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition (M/S) No. 1648 of 2019

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Ramesh Prasad Godiyal

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..…Petitioner

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Versus

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Kamala Devi .…Respondent

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Advocate : Mr. Naman Kamboj, Advocate for the petitioner

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Hon’ble Sharad Kumar Sharma, J.

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The petitioner before this Court is the tenant of the tenement in question, which was a subject matter of proceedings for release of it in a proceedings under Section 21(1)(a) of the U.P. Urban Building (Regulation of Letting Rent and Eviction Act), 1972, preferred by the respondent by invoking the provisions of Act No. 13 of 1972, which was registered as PA Case No. 46/2014, Smt. Kamala v. Ramesh Prasad Godiyal .

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2. After the same being registered before the learned Prescribed Authority on 11.09.2014, the record shows that notices were issued on the same to the petitioner was served on 16.12.2005 and as far as the knowledge about the pendency of the proceedings are concerned, as alleged by the petitioner is that the same could be attributed from the admission, which has been made by the petitioner in the application dated 07.06.2016, wherein he has made a prayer that the order to proceed ex parte dated 18.01.2016, may be recalled and he may be permitted to file his objection to the principal proceedings of PA Case No. 46/2014, Smt. Kamala v. Ramesh Prasad Godiyal and to permit him to contest the proceedings on the merits of the matter.

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What is relevant to be remarked at this stage is that even as per the application, which has been moved for the first time on 07.06.2015, seeking recall of the order dated 18.01.2016 to proceed exparte, the petitioner himself have pleaded that for the first time he could get the knowledge of the pendency of the proceedings on 08.04.2016, when the petitioner had moved an application before the learned Court below i.e. the Prescribed Authority. But despite of his knowledge of the proceedings, he has chosen not to prefer a recall application within specified time period, seeking recall of the order directing to proceed ex parte against him as the application for recall was filed on 07.06.2016 only. Not even that, even when he has preferred the recall application to recall the ex parte order dated 18.01.2016 on 07.06.2016, which was itself filed much beyond the time period prescribed for filing the recall application from the date of knowledge i.e. 18.04.2016. The said application was not supported with any delay condonation application and consequently, admittedly the application, as filed by the petitioner on 07.06.2016, the application for recall dated 07.06.2016 filed by the petitioner/tenant to recall the order dated 18.01.2016 to proceed exparte, the knowledge of which was acquired by the petitioner on 18.04.2016, was filed for the first time on 07.06.2016. The said application for recall dated 07.06.2016, was opposed by the respondent/landlord he filed his objection to it on 09.06.2016, the same was considered by the Prescribed Authority and was rejected by the impugned order dated 14.06.2016. Holding that the action of absence is deliberate to delay the proceedings despite of service of notice, and even the recall was filed belatedly after knowledge of the proceedings and the order dated 08.01.2016 to proceed exparte that too beyond the period prescribed.

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Being aggrieved against the said order dated 14.06.2016, the petitioner is said to have filed an application, under Section 34 to be read with Rule 22, seeking recall of the order dated 14.06.2016 by moving an application for review on 17.06.2016. The said review application too came for consideration before the learned Prescribed Authority and the same was rejected by the impugned order dated 02.04.2019. Consequently, the petitioner has preferred the present writ petition, challenging the two orders dated 14.06.2016 rejecting recall application and the order dated 02.04.2019 rejecting the review application.

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This Court feels it necessary to deal with two orders under challenge independently for better appreciation of the case. First of all, the order, rejecting the application for recall dated 07.06.2016 has rightly been rejected, because according to the admission of the petitioner himself and as apparent as per the document, which was brought on record before the learned Prescribed Authority, the petitioner it is admitted that he did had the knowledge of the pendency of the proceedings before the learned Prescribed Authority on 08.04.2016 that is even much prior to filing the application for recall dated 07.06.2016 as it has been admitted by him in his recall application about the knowledge which was attributed to him to be only on 08.04.2016, despite of it he has chosen to file a belated recall application and yet again he has erred at law in not preferring any delay condonation application supporting his recall application dated 07.06.2016 for seeking condonation of delay for recalling the order dated 08.01.2016 to proceed ex parte. Hence, on account these two reasons, first of all, that the petitioner had the knowledge of the proceedings as per his own showing on 08.04.2016 and secondly, his recall application which was filed on 07.06.2016 was not supported with the delay

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condonation application, his application was rightly rejected by the learned Prescribed Authority by the order dated 14.06.2016. Because the said application was not as per law of limitation as there was no prayer made to condone the delay which has chanced in filing the recall application.

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Coming to the second order under challenge, i.e. the order dated 02.04.2019, rejecting his application on 17.06.2016 paper number 24 (ka) which has been preferred by the petitioner seeking review of the judgement and order dated 14.06.2016, for the said purpose, it would be essential to point out that the power of review with statutory Courts are created under an Act or the law contained in it, it is a statutory power, which is vested with the authorities in accordance with the proceedings, which governs the function of the Prescribed Authority as per the provisions of the Act itself. It is not in controversy that the proceedings before the learned Prescribed Authority are governed with the provisions contained under Section 34 read with Rule 22 of Act No. 13 of 1972, in fact, by virtue of the provisions contained under Section 34, some limited provisions of Code of Civil Procedure has been made applicable the law of Code of Civil Procedure has not been made applicable in its totality. Only certain provisions which are quoted therein under Section 34 that has been made applicable in the proceedings before the learned Prescribed Authority and which does not include in it the powers contained under Section 114 or under Order 47 Rule 1 to review the order. Since the power of review is creation of statute and as per provisions contained under Section 34 of Act No. 13 of 1972, the power of review has not been vested with the prescribed authority. The power of review is not the inherent power which is vested with special authority created under the Act, and that under

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the Act the proceedings of which are summary proceedings which as per Rule 15 has to be decided within the prescribed time period.

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Apart from it, the power of review is not an inherent power which can be exercised by the Courts created under a Statute. The power of review, as it has been held out by the Full Bench judgement of Allahabad High Court reported in 1997 (31) ALR 680, Smt. SHIVRAJI and others v. Dy. Director of Consolidation, Allahabad and others , it has been held in its para nos. 35, 36 and 41 that the Courts which are created under the Statute, if they are self contained Court and there proceedings are governed by the provisions of the Act and the Rules framed thereunder, and if the Rule is silent and it does not confer the power of review then in that eventuality, the Courts ceased with the proceedings cannot exercise their inherent powers of reviewing of a judgement, because the power of review is not an inherent power, but rather creation of statute, which can not be exercised by the Courts, as the power of review is a power which is created under a Statute.

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“35. Any Tribunal exercising judicial or quasi-judicial power, which is not vested with power of review under the statute expressly or by necessary implication, has an inherent power of review of its previous order in any circumstances. In our view, the decisions only lay down the proposition that a Tribunal exercising judicial or quasi-judicial power has the inherent power to correct a clerical mistake or arithmetical error in its order and has the power to review an order which has been obtained by practising fraud on the court, provided that injustice has been perpetrated on a party by such order. Therefore, these decisions should not be construed as laying down any proposition of law contrary to the wellsettled principle of law that any order delivered and signed by a judicial or quasi-judicial authority attains finality subject to appeal or revision as provided under the Act and if the authority passing the order is not specifically vested with power of review under the

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statute, it cannot reopen the proceeding and review/revise its previous order.

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Coming to the provisions of the U.P. Consolidation of Holdings Act, it is our considered view that the consolidation authorities, particularly the Deputy Director of Consolidation while deciding a revision petition exercises judicial or quasi-judicial power and, therefore his order is final subject to any power of appeal or revision vested in superior authority under the Act. The consolidation authorities, particularly the Deputy Director of Consolidation, is not vested with any power of review of his order and, therefore, cannot reopen any proceeding and cannot review or revise his earlier order. However, as a judicial or quasi-judicial authority, he has the power to correct any clerical mistake/arithmetical error manifest error in his order in exercise of his inherent power as a Tribunal.

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On the discussions in the foregoing paragraphs, it is our considered view that it is not open for the consolidation authorities to review/recall their final orders passed in proceedings under the U.P. Consolidation of Holdings Act in exercise of inherent powers. Thus, the question formulated earlier is answered in the negative. The writ petition will be placed before the appropriate Bench for disposal in the light of this judgment.”

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Under the Act of 13 of 1972, the proceedings which are permissible under the said Act, since are summary in nature, the legislature in its wisdom, while incorporating Section 34 to be read with Rule 22 had deliberately not incorporated or included therein conferring the power of review to the Prescribed Authority or the Authorities, created under Act No. 13 of 1972 to review their own judgements because even otherwise also, the proceedings held under the Act No. 13 of 1972, they are summary in nature and they do not entail a long drawn proceedings as of a regular Civil Suit and keeping that spirit in mind, the legislature has not conferred the power of review with the Prescribed Authority.

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Consequently, this Court does not find any mistake or error apparent on the face of the record so far it relates to the order dated 14.06.2016, rejecting the application for recall/review of the order passed on recall application which was not supported with the delay condonation application. Apart from it, the records show that the petitioner had the knowledge of the pendency of the proceedings much prior in time and secondly, the order dated 02.04.2019 by virtue of which the review was rejected as it has already been held that the proceedings under the Act No. 13 of 1972 since being a summary proceedings, the provisions of review since has not been made applicable under Section 34 of the Act, this Court does not find no error in the impugned orders rendered by the Court below. Accordingly, the writ petition lacks merits and is dismissed. However, there would be no order as to cost.

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(Sharad Kumar Sharma, J.) 10.06.2019

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Mahinder/

Ramesh Prasad Godiyal v. Kamala Devi

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Ramesh Prasad Godiyal v. Kamala Devi

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