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2015 Supreme(All) 3948
ALLAHABAD HIGH COURT
Anjani Kumar Mishra, J.
Asghar - Appellant
Versus
Additional Commissioner (Admin),Moradabad Div. and 14 Others - Respondent
Writ C No. 53481 of 2015
Decided On : 29-10-2015
For the Petitioner:- Shamim Ahmad,M.A. Qadeer
For the Respondent:- C.S.C.
The main legal point established in the judgment is that restoration applications may be allowed if the affected parties were not given notice or opportunity of hearing, and technical pleas alone may not be sufficient to entertain a writ petition.
Headnote:
U.P. Land Revenue Act - Restoration of Order - Section 41 - 17.01.1978 - 25.08.2015, 04.09.2015
Fact of the Case:
The petitioner filed an application under Section 41 of the U.P. Land Revenue Act for demarcation. The boundary marks were allegedly removed by the respondents, leading to a complaint and subsequent legal proceedings.
Finding of the Court:
The court found that the contesting respondents were affected by the order dated 17.01.1978 and that it had been passed without any notice or opportunity of hearing to them. The restoration application was allowed without condoning the delay.
Issues: The issues revolved around the justification for filing the application for recall of the order dated 17.01.1978, the delay in filing the restoration application, and the effect of the order on the contesting respondents.
Ratio Decidendi: The court held that since the contesting respondents were affected by the order and it had been passed without notice or opportunity of hearing to them, there was no merit in the petitioner's submissions. The court also noted that the restoration application was allowed without condoning the delay, but technical pleas alone were not sufficient to entertain the writ petition.
Final Decision: The writ petition was dismissed, and the court found no good ground for interfering with the impugned orders.
Anjani Kumar Mishra,J.
Heard Sri M.A. Qadeer learned Senior Counsel on behalf of the petitioner and learned Standing Counsel for the State respondents.
2. This petition has been filed seeking a writ of certiorari for quashing the order dated 25.08.2015 passed by the respondent no. 2 and the order dated 04.09.2015 passed by the respondent no. 1.
3. The respondent no. 2 has allowed a restoration application filed by the respondents and has set aside the order dated 17.01.1978 passed in proceedings under Section 41 of the U.P. Land Revenue Act in favour of the petitioner. The consequential revision has been dismissed by the respondent no. 1, the Additional Commissioner, hence this writ petition.
4. The relevant facts are that the petitioner filed an application under Section 41 of the U.P. Land Revenue Act for demarcation. These proceedings were decided finally and it is alleged that boundary marks were erected on 05.05.1978. The opposite parties in the proceedings filed an appeal, which is stated to have been dismissed on 10.07.1979 and thereby the order passed in favour of the petitioner is stated to have attained finality.
5. It has been submitted that since the boundary marks erected in 1978 had worn out, the petitioner filed an application for renewal of the boundary marks at his own expenses. In pursuance of this application the boundary marks were renewed. Thereafter, the newly erected boundary marks are alleged to have been removed by respondents on 28.01.2015. In this regard the petitioner is stated to have made a complaint on 06.12.2015 whereon the respondent no. 2 directed that a First Information Report be lodged against the respondents. This F.I.R. was duly lodged on 25.05.2015.
6. On 02.06.2015 a complaint appears to have been made by the contesting respondent nos. 7 to 15 to the District Magistrate.
7. Two days later on 02.06.2015 the respondents filed an application for recall of the order dated 17.01.1978. This recall application which sought to recall an order passed about 37 years earlier, was accompanied by an application under Section 5 of the Limitation Act for condonation of delay and was duly supported by an affidavit. The petitioner filed his objection thereto on 03.07.2015.
8. The respondent no. 2, Sub Divisional Officer, by his order dated 25.08.2015 allowed the restoration application. This order was challenged by means of a revision which was dismissed vide order dated 09.04.2015.
9. Sri M.A. Qadeer has submitted that there was absolutely no justification for the respondents to have filed the application for recall of the order dated 17.01.1978 as the same did not effect them in any way. This was the reason why they were not impleaded as parties in the proceedings under Section 41. The respondent no. 2 has wrongly allowed the recall application even though, the persons who had filed the recall application had no concern with the order that has been recalled.
10. The second submission made is that the recall application was highly belated and the same has been allowed without condoning the delay and therefore, the order is vitiated.
11. I have considered the submissions made by learned counsel for the petitioner and have perused the record.
12. Perusal of the impugned orders indicates that the restoration application was filed by the contesting respondents alleging therein that the order dated 17.01.1978 was never given effect to on the spot. It was, for the first time, sought to be implemented on the spot by erection of boundary marks on the date it is alleged that the boundary marks were renewed on the application of the petitioner. Since the order was never implemented on the spot, the contesting respondents, the applicants before the court below, had no knowledge of the order.
13. In their restoration application they have categorically alleged that on account of demarcation carried out in pursuance of the order dated 17.01.1978, in the month of March, 2015, a substantial portion of Plot no.
