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1984 Supreme(All) 610
IN THE HIGH COURT OF ALLAHABAD, LUCKNOW BENCH
S. Saghir Ahmad, J.
Smt. Ram Pyari Devi – Appellant
Versus
Chief Judical Migistrate and Others - Respondents
Writ Petition No. 6282 of 1983
Decided On : 11-10-1984
For the Appellant : S.K. Kalia
For the Respondent: L.P. Misra
The appellate authority has the power to restore an appeal dismissed in default, either in exercise of its review power under Section 321 of the Act or in exercise of its inherent power.
Headnote:
U.P. MUNICIPALITIES ACT - SECTION 318, 321 - RESTORATION OF APPEAL DISMISSED IN DEFAULT - INHERENT POWER OF APPELLATE AUTHORITY - LIMITATION.
Fact of the Case:
Petitioner applied for sanction of a building plan, which was allowed by the Municipal Board. Opposite party No. 2 challenged this order in an appeal filed under Section 318 of the U.P. Municipalities Act (Act), which was dismissed in default. The next day, an application was made for restoration of the appeal, which was allowed by the Chief Judicial Magistrate. The Petitioner challenged this order in a writ petition.
Finding of the Court:
The court held that the appellate authority has the power to restore an appeal dismissed in default, either in exercise of its review power under Section 321 of the Act or in exercise of its inherent power. The exercise of inherent powers is not fettered by any period of limitation.
Issues: Whether the appellate authority has the power to restore an appeal dismissed in default.
Ratio Decidendi: The court relied on the decision in Sampat Ram Varma v. Addl. District Magistrate, which held that a quasi-judicial authority has the power to recall an ex-parte order of dismissal for default. The court also noted that the exercise of inherent powers by the appellate authority for ordering restoration of the appeal dismissed in default is not fettered by any period of limitation.
Final Decision: The court dismissed the writ petition, holding that the impugned order does not call for any interference.
S. Saghir Ahmad, J.
This is a petition under Article 226 of the Constitution.
2. The Petitioner, it appears, had applied for sanction of a building plan which was allowed by the Municipal Board on 16-3-1982. This order was challenged by the opposite party No. 2 in an appeal filed u/s 318 of the U.P. Municipalities Act (hereinafter referred to as the Act) on 30-9-1982. Since the appeal was filed beyond the time prescribed under the Act, an application for condonation of delay was also moved. The appeal as also the application for condonation of delay were dismissed in default on 23-11-1982. The next day, i.e. 24-11-1982, an application was made for restoration of the appeal. The application was opposed by the Petitioner who filed objections on 21-9-1983. The Chief Judicial Magistrate, however, by his order dated 14-10-1983 set aside the order dated 23-11-1982 and restored the appeal to its original number on payment of Rs. 25/- as costs which was required to be paid within 15 days failing which the application for restoration was to be treated as rejected. It is this order which has been impugned in the writ petition.
3. By an order dated 16-7-1984, passed by brother Sharma, J. notice of the petition was required to be issued to opposite party No. 3 to show cause why the petition be not admitted. It was also required to be indicated in the notice that the petition itself was likely to be heard and disposed of finally.
4. I have heard the learned Counsel for the parties who have stated that the writ petition itself may be disposed of finally.
5. It has been contended on behalf of the Petitioner that there is no provision in the U.P. Municipalities Act which authorises the appellate authority to restore an appeal to its original number if the appeal is once dismissed in default and consequently, restoration can be ordered only in exercise of its review power u/s 321 of the Act but then, it is further contended, an order reviewing the earlier order and restoring the appeal has to be passed within three months from the date of the original order as required by the proviso to Section 321. Since in the instant case, the impugned order was passed on 14-10-1983 i.e. much after the expiry of three months from the date of the original order, the same, it is submitted, is liable to be quashed as on the expiry of three months from 23-11-1983, the date on which the appeal was dismissed in default, the appellate authority had ceased to have any jurisdiction in the matter.
Section 318 of the Act provides as under:
318(1). Any person aggrieved by any order or direction made by a board under the powers conferred upon it by Sections 180(1), 186, 204, 205(1), 208, 211, 212, 222(6). 241(2), 245, 278, 285 or under a bye-law made under heading G of Section 298, may within thirty days from the date of such direction or order, exclusive of the time requisite for obtaining a copy thereof, appeal to such officer as the State Government may appoint for the purpose of hearing such appeals or any of them, or, failing such appointment, to the
(2)...
(3) No appeal shall be dismissed or allowed in part or whole unless reasonable opportunity of showing cause or being heard has been given to the parties.
Section 321 of the Act provides as under:
321(1) No order or direction referred to in Section 318 shall be questioned in any other manner or by any other authority than is provided therein.
(2) The order of the appellate authority confirming, setting aside or modifying any such order or direction shall be final:
Provided that it shall be lawful for the appellate authority, upon application, and after giving notice to the other party, to review any order passed by him in appeal by a further order passed within three months from the date of his original order.
6. u/s 318 of the Act, the appellate authority has to dispose of the appeal after giving an opportunity of hearing to the parties concerned. It is, therefore, unquestionably a quasi judicial power. That being s
