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2017 Supreme(All) 2516
IN THE HIGH COURT OF ALLAHABAD
Manoj Misra, J.
Istyaq - Appellant
Vs.
Dy. Director of Consolidation - Respondent
Writ-B No. 51087 of 2017
Decided On : 07-11-2017
Advocate Appeared:
For the Appellant : Ramesh Chandra Tiwari
For the Respondent: Satyendra Narayan Singh
Courts have the inherent power to recall an order obtained by fraud or lacking jurisdiction.
Headnote:
Fraud - Allotment of Chak - Budhia Swan v. Gopinath Deb (1999) 4 SCC 396
Fact of the Case:
The case involved a dispute over the allotment of Chak, where the second respondent filed an objection and subsequent appeal. The petitioner alleged that the second respondent obtained an order by playing fraud on the court.
Finding of the Court:
The court found that the order obtained by the second respondent was indeed obtained by suppressing material facts, constituting fraud on the court. The court held that the Consolidation Officer was within his jurisdiction to recall the order based on the fraud.
Issues: The main issue was whether the order obtained by the second respondent was fraudulent and whether the Consolidation Officer had the jurisdiction to recall the order.
Ratio Decidendi: The court held that every court has the inherent power to recall an order if it has been obtained by playing fraud upon the court. The power to recall also exists when the order suffers from inherent lack of jurisdiction.
Final Decision: The writ petition was allowed, setting aside the order passed by the Deputy Director of Consolidation and restoring the order passed by the Consolidation Officer. The Consolidation Officer was directed to proceed in accordance with the restored order.
Manoj Misra, J.
Heard learned counsel for the petitioner; learned Standing Counsel for respondent No. 1 and Sri S.N. Singh for respondent No. 2.
2. Considering the ground on which this order is being passed, learned counsel for the contesting respondent does not propose to take time to file counter affidavit and is agreeable for final disposal of this petition, at this stage itself.
3. The controversy, in short, which has given rise to the present writ petition can be summarized as follows:
4. In respect of allotment of Chak, the second respondent, namely, Chak holder No. 463 had filed an objection before the Assistant Consolidation Officer which came before the Consolidation Officer, Rahra, Amroha for adjudication as case No. 9/597, who, vide order dated 11th October, 2013, rejected the objection taken by the second respondent.
5. Against the order dated 11th October, 2013, second respondent filed an appeal No. 24/390 before the Settlement Officer of Consolidation, Moradabad, which came to be dismissed by order dated 20th November, 2014.
6. Instead of filing revision against the appellate order, the second respondent filed an application before the Consolidation Officer for recall of order dated 11th October, 2013 by taking another plea, which was not taken in the earlier objection. However, while filing the recall application, on 1st December, 2014, the second respondent suppressed the fact that against the order dated 11th October, 2013 he had already filed an appeal which was dismissed.
7. The Consolidation Officer, without being aware that the appeal preferred against the order dated 11th October, 2013 has been dismissed by Settlement Officer of Consolidation, proceeded to pass an order on 7th January, 2015 thereby recalling the order dated 11th October, 2013 and altering the Chak thereby affecting the petitioner.
8. Upon coming to know that the order obtained from the Court of Consolidation Officer, Rahra, Amroha was without disclosure that appeal had been dismissed, the petitioner moved an application before the Consolidation Officer for recall of order dated 7th January, 2015 on the ground that the said order was obtained by playing fraud.
9. The Consolidation Officer upon being apprised of the factual position as also that the earlier order passed by him was in ignorance of the fact that the appeal against the order dated 11th October, 2013 had already been dismissed, vide order dated 4th February, 2015, proceeded to recall the order dated 7th January, 2015 and issued notices to the parties for further action.
10. Aggrieved by the order dated 4th February, 2015, second respondent filed revision before the Deputy Director of Consolidation, Amroha, which came to be allowed by the impugned order dated 23rd September, 2017 on the ground that the Consolidation Officer did not have jurisdiction to review its own order and accordingly the order dated 4th February, 2015 was without jurisdiction and therefore liable to be set aside. The revision was accordingly allowed and the order dated 4th February, 2015 was set aside and the order dated 7th January, 2015 was restored.
11. The contention of learned counsel for the petitioner is that no doubt the Consolidation Officer may not have power to review but every Court has inherent power to recall an order if one of the three conditions are satisfied : (a) that the order has been passed in violation of principles of natural justice and the recall application has been filed at the instance of the party who has not been heard; (b) that the order has been passed without jurisdiction; and (c) that the order has been obtained by playing fraud upon the Court. It has been submitted on behalf of the petitioner that the order dated 7th January, 2015 was obtained by playing fraud upon the Court, inasmuch as, the said order had recalled the earlier order dated 11th October, 2013, passed by the Consolidation Officer against which the recall applicant had filed an appeal which was dismissed and
