Allahabad High Court
Kalim Ullah vs D.D.C. Sultanpur & Ors. on 19 January, 2021
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?A.F.R.
Court No. - 19
Case :- CONSOLIDATION No. - 1436 of 2021
Petitioner :- Kalim Ullah
Respondent :- D.D.C. Sultanpur & Ors.
Counsel for Petitioner :- Brijesh Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Abdul Moin,J.
Heard learned counsel for the petitioner and learned Standing Counsel for respondent no.1.
Under challenge is the order dated 12.01.2021 passed by learned Deputy Director of Consolidation, Sultanpur, a copy of which is Annexure-1 to the writ petition, by which, upon an application moved by the private respondents, the ex-parte order dated 06.11.2015 has been recalled and notices have been issued to the parties concerned fixing a particular date.
Learned counsel for the petitioner contends that taking into consideration the law laid down by the Full Bench of this Court in the case of Smt. Anar Kali and others vs. Deputy Director of Consolidation and others - 1997 (15) LCD 921, the power to recall an ex-parte order is not vested with the Deputy Director of Consolidation and consequently the Deputy Director of Consolidation has patently erred in passing the impugned order. Another ground taken by learned counsel for the petitioner is that a detailed objection had been filed against the application that had been filed by the private respondents praying for recall of the order dated 06.11.2015 which has not been adverted to while passing the impugned order and consequently the impugned order merits to be set-aside. No other ground has been urged.
On the other hand, learned Standing Counsel submits that the Deputy Director of Consolidation is vested with inherent powers to recall an ex-parte order and it is not a case of review so as to attract the law as laid down by the Full Bench in the case of Smt. Anar Kali (supra).
Having heard learned counsel for the parties and having perused the records, what is apparent is that by the impugned order dated 12.01.2021 ex-parte order dated 06.11.2015 has been recalled by the Deputy Director of Consolidation. So far as the Full Bench judgment in the case of Smt. Anar Kali (supra) is concerned, the question before the Full Bench, as finds place in paragraph 2 of the said judgment, was as under :-
"Whether it is open for the Consolidation authorities to reveiw/recall their final orders exercising inherent powers even though the U.P. Consolidation of Holdings Act, 1953 does not vest them any review jurisdiction."
The said question has been answered in paragraph 39 of the said judgment that it is not open for the consolidation authorities to review/recall their final orders passed in the proceedings under the U.P. Consolidation of Holdings Act in exercise of inherent powers. Thus, the question before the Full Bench was as to whether a review would lie before the authority concerned after passing of the final order, which has been answered in paragraph 39 of the judgment that no such review/recall would lie. In the instant case, it is not case of the petitioner that a review had been filed by the private respondents against the order dated 06.11.2015 rather it is admitted that an application for recall was filed which has been allowed by means of order dated 12.01.2021. Thus, the question of law as stood answered in the case of Smt. Anar Kali (supra) which was for a review not lying before the authority concerned is not attracted in the facts of the instant case and thus the judgment of Smt. Anar Kali (supra) would not come to the rescue of the petitioner.
Upon this, learned counsel for the petitioner contends that in paragraphs 28 and 29 of the judgment of Smt. Anar Kali (supra), the Full Bench has also considered two earlier Full Bench judgments of this Court and thereafter has held in paragraph 39 that even an application for recall would not be maintainable.
The said argument is patently fallacious inasmuch as once the question had been framed by the Full Bench of this Court which was only for the purpose "as to whether a review would lie before the authority concerned" consequently the observations made in paragraph 39 of the judgment have to be read with the question which was framed by the Full Bench and not otherwise. Thus, even the said argument of learned counsel for the petitioner is rejected.
A similar controversy came up before the Apex Court in the case of Grindlays Bank Limited vs. Central Government Industrial Tribunal reported in 1980 (Supp.) SCC 420, wherein the Apex Court was seized of the question as to whether Industrial Tribunal could set-aside its ex-parte award if it was satisfied that the aggrieved party was prevented from appearing by sufficient cause. The Apex Court held that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. It was further held that although there is no express provision in the Act or Rules framed there under giving the Industrial Tribunal jurisdiction to set-aside its ex-parte award, Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary.
It is not the case of the petitioner that the Consolidation of Holdings Act precludes setting-aside an ex-parte order. Thus, taking into consideration the law laid down in the case of Grindlays Bank Ltd. (supra) the Court finds that no error has been committed by the authority concerned in passing the order dated 12.01.2021.
So far as the argument that the order dated 12.01.2021 does not contain any reasons and thus has to be set-aside, suffice is to state that only the order has been set-aside and it would always be open for the petitioner to file his objections in the said case when called upon by the court concerned.
Taking into consideration the aforesaid, no case for interference is made out. Accordingly, the writ petition is dismissed.
Order Date :- 19.1.2021
A. Katiyar
