Raeesh Ahmad vs State Of U P And 2 Others
2018 Latest Caselaw 918 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(A.F.R.)
 
Court No. - 35
 

 
Case :- WRIT - C No. - 19281 of 2018
 

 
Petitioner :- Raeesh Ahmad
 
Respondent :- State Of U P And 2 Others
 
Counsel for Petitioner :- Manu Khare
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saral Srivastava,J.

1. Heard learned counsel for the petitioner and learned Standing Counsel for the respondent no. 1 to 3.

2. The petitioner claims that one Mukhtar Ahmad was the owner and in occupation of Khewat No.102, Khasra Nos.806 and 807. According to the petitioner, Mukhtar Ahmad executed a Will dated 26.07.1991 in his favour. After the death of Mukhtar Ahmad, the petitioner filed an application under Section 34/35 of the Land Revenue Act for mutating his name in the revenue record in place of Mukhtar Ahmad before the Tehsildar, Saharanpur numbered as case no.55 of 2002 (Rais Ahmad Vs. Mukhtar Ahmad). The Tehsildar vide order dated 21.01.2002 allowed the application of the petitioner and directed for substitution of the name of the petitioner in place of Mukhtar Ahmad in the revenue record.

3. It appears that the respondent no.3 claiming to be the owner of the aforesaid property filed an application for recall of ex parte order dated 21.01.2002 which was allowed by the Tehsildar on 03.06.2004 and the case no.55 of 2002 was restored. The petitioner, thereafter, filed an application for recall of the order dated 03.06.2004 which was dismissed by the Tehsildar vide order dated 30.07.2004.

4. The Tehsildar, thereafter, vide order dated 19.01.2005 dismissed the case no.55 of 2002 (Rais Ahmad Vs. Mukhtar Ahmad).

5. The petitioner has assailed the orders dated 19.01.2005, 30.07.2004 and 03.06.2004 passed by the Tehsildar, Saharanpur in the present writ petition.

6. Learned counsel for the petitioner has contended that Rule 381 of Chapter XXXVII of U.P. Revenue Code Manual (hereinafter referred to as 'Manual') provides for an enquiry under Section 35 of the Land Revenue Act. He submits that as per Rule 381, in an undisputed case the Tehsildar can record the name of successor or transferee, but in a disputed case, the Tehsildar shall only make a preliminary enquiry to determine the dispute and its nature and thereafter, refer the case to the Collector. The Collector shall thereafter make a summary enquiry himself and shall take such further evidence as may be necessary in his opinion for completing the enquiry.

7. Thus, the submission is that the order dated 19.01.2005 is without jurisdiction inasmuch as there is a dispute in the instant case and therefore, the Tehsildar after making preliminary enquiry, with regard to the nature of the dispute should have referred the case to the Collector for disposal.

8. Learned Standing Counsel submitted that there is an inordinate delay of more than 13 years in filing the present writ petition and the petitioner has not given any cogent explanation for approaching this Court so late and as such the writ petition is liable to be dismissed on the ground of delay. In this regard, learned Standing Counsel referred to paragraphs 16 and 17 of the writ petition to contend that vague averment with regard to the explanation in filing the writ petition has been made in the writ petition. Paragraphs 16 and 17 of the writ petition are reproduced herein-below:-

"16. That, the petitioner came to know of the order dated 19.1.2005 when steps were taken by him for preparation of new khatuuni. Thereafter, enquiry was made and information with regard to previous orders was also made available.

17. That, the delay and laches in challenging the orders impugned is neither deliberate nor intentional, even otherwise the issue of delay and laches will be of little or no consequence as the orders under challenge are nullities. Thus, the delay occurred in filing the present writ petition may kindly be condoned."

9. I have heard learned counsel for the parties and perused the record.

10. Learned counsel for the petitioner submits that since the order dated 19.01.2005 impugned in the writ petition is without jurisdiction, therefore, the said order is not binding upon the parties and the delay in filing the writ petition is of very little importance. In this regard, he has placed reliance upon paragraph 14 of the judgment of the Supreme Court in the case of Gurnam Singh and others Vs. Gurbachacn Kaur (Dead) 2017 (13) SCC 414, which is reproduced herein-below:

"14. In a leading case of this Court in Kiran Singh v. Chaman Paswan AIR 1954 SC 340, the learned Judge Venkatarama Ayyar, J. speaking for the Bench in his distinctive style of writing laid down the following principle of law being fundamental in nature: (AIR p.342, para 6)

"6...........It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties."

11. The petitioner has approached this Court with an inordinate delay of more than 13 years. The explanation given by the petitioner in paragraphs 16 and 17 of the writ petition is vague.

12. The judgment relied upon by the petitioner is not of any help to him inasmuch as in the case of Gurnam Singh (supra), the Apex Court was dealing with an issue where a decree was passed by a Court having no jurisdiction, and in those facts the Apex Court held that the decree passed by a Court having no jurisdiction is nullity and the invalidity of it can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree-holder.

13. In the aforesaid case, the Apex Court has not considered the issue of inordinate delay in challenging the decree which was passed by a Court having no jurisdiction.

14. The Apex Court in the case of State of Rajasthan and others Vs. D.R. Laxmi and others 1996 (6) SCC 445, held that the order or action ultra vires the powers is void and it does not confer any right upon the parties, but the same has to be challenged by the parties within the reasonable time. Paragraph 10 of the said judgment is reproduced herein-below:

"10. The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for; the award of the Court under Section 26 enhancing the compensation was also accepted. The order of the appellate court had also become final. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification under Section 4 (1) and declaration under Section 6"

15. Since the delay in filing the writ petition is beyond 13 years, therefore, applying the ration laid down by the Apex Court in the case of State of Rajasthan and others (Supra), it would not be appropriate in the facts of the present case to revive a stale claim as the rights and title of the respondent no.3 over the property has perfected or a third party right may have accrued in the interregnum. Thus, it is not a case where this court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India and writ petition deserves to be dismissed on the ground of delay and laches.

16. Thus, for the reasons given above, the writ petition lacks merit and is dismissed. However, there shall be no order as to costs.

Order Date :-25.05.2018

S.Sharma