Gopi Nath Srivastava (3613 Serb ... vs State Of U.P. Thru Secy. Sugar ...
2021 Latest Caselaw 7256 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 1
 

 
Case :- CIVIL MISC REVIEW APPLICATION DEFECTIVE No. - 98 of 2021
 

 
Applicant :- Gopi Nath Srivastava (3613 Serb 1986)
 
Opposite Party :- State Of U.P. Thru Secy. Sugar Industries & Cane Dev. & Ors.
 
Counsel for Applicant :- Pravin Kumar Sahu,Ajay Kumar Tewari
 
Counsel for Opposite Party :- C.S.C.
 

 
Hon'ble Ritu Raj Awasthi,J.

Hon'ble Dinesh Kumar Singh,J.

1. This case has been taken up through video conferencing.

2. Heard Mr. Ajay Kumar Tiwari, learned counsel for the review applicant and gone through the record.

3. As per the facts of the case mentioned in the review application, the review applicant-petitioner feeling aggrieved against the seniority of Shyam Narain Bhatnagar, Ravi Kant Srivastava and Kanhaiya Lal in the cadre of Statistical Assistant filed a representation. Representation of the review applicant-petitioner was rejected in the year 1976.

4. Thereafter, the review applicant-petitioner approached Public Service Tribunal by filing a claim petition. Learned Tribunal dismissed the claim petition on the ground of it being time barred. The review applicant-petitioner thereafter filed Writ Petition No.3613(SS) of 1986 before this Court. The writ petition was dismissed for non-prosecution by order dated 04.02.2004.

5. Thereafter, the review applicant-petitioner preferred application for recall after a delay of approximately 11 years in the year 2015. Said application for recall was rejected by a detailed order dated 03.02.2016.

Order dated 03.02.2016 for convenience is reproduced hereunder:-

"Heard on application for recall of order dated 4.2.2004 as well as application for condonation filed in support of recall application.

These applications have been moved after 11 years. No justifiable reasons have been indicated and neither the delay has been explained by the petitioner properly for recalling the aforesaid order dated 4.2.1004.

The writ petition was filed in the year 1986. The petitioner did not pursue the matter seriously and the writ petition was dismissed in default in the year 2004. The petitioner has retired long back. The matter pertains to the seniority which is in consequential after the retirement of the petitioner.

In view of above, and looking to the fact that the delay has not been explained properly these applications deserve to the rejected.

Accordingly, application for condonation of delay as well as application for recall of order dated 4.2.2004 are hereby rejected."

6. It is also to be noted that after rejection of the recall application, the review applicant-petitioner preferred another writ petition i.e. Writ Petition No.25792(SS) of 2016 before this Court. The same was dismissed vide order dated 26.10.2016.

Order dated 26.10.2016 for convenience is reproduced hereunder:-

"Heard learned counsel for the parties.

The petitioner had filed a claim petition in the year 1986 which was dismissed, against which the petitioner had earlier filed a writ petition bearing No. 3613(S/B) of 1986 based on the same cause of action which was dismissed for want of prosecution on 04.02.2004. An application for recall of the said order was filed which was also dismissed on 03.02.2016. Now, the same petitioner has filed this writ petition based on the same cause of action. Clearly under the Rules of the Court a second writ petition on the same facts after the first has been dismissed for the want of prosecution, without any liberty to file a fresh petition, is not maintainable.

Accordingly, the writ petition is dismissed. There shall be no orders as to costs."

7. Thereafter, the review applicant-petitioner filed a special appeal i.e. Special Appeal Defective No.154 of 2017 arising out of order dated 26.10.2016. The said special appeal was dismissed vide order dated 12.04.2017.

Order dated 12.04.2017 for convenience is reproduced hereunder:-

"We have gone through the contents of the Delay Condonation Application as well as the facts that have been placed on record with regard to the earlier litigation contested by the appellant.

The appellant had filed a Writ Petition No.3613 of 1986 in relation to his claim which was dismissed in default on 4.2.2004. A recall application was also filed. The recall application was rejected on 3.2.2016. The appellant aggrieved wrote a letter to Hon'ble the Chief Justice of India, Hon'ble the Chief Justice of Allahabad High Court and other Constitutional Functionaries asserting that he has been unable to get justice and his Writ Petition had been incorrectly rejected. The judgment passed in the earlier Writ Petition and the rejection of the recall application is by a Division Bench as such Writ Petitions were cognizable then by a Division Bench when it was filed in the year 1986.

Consequently, the remedy of the appellant lay in filing an appeal against the said judgment if he was aggrieved as asserted in his letter dated 8.3.2016.

The appellant appears to have been incorrectly advised to file a second Writ Petition and since now such Writ Petitions are cognizable by a Single Judge under the roster arrangements made, the learned Single Judge dismissed the Writ Petition on the ground that the second Writ Petition would not be maintainable. It is the said judgement dated 26.10.2016 which has now been assailed in this appeal.

In this background agreeing with the view of the learned Single Judge we are unable to either entertain the request for condonation of delay or even entertain the appeal on merits without prejudice to the rights of the appellant to approach the appropriate forum for redressal of his grievances in accordance with law.

The appeal is accordingly rejected.

8. Now, the review applicant-petitioner has filed this review application against the order dated 03.02.2016 which is before us. Office has reported that the review application is accompanied with an application for condonation of delay with an affidavit dated 22.10.2020. The review on the date of filing was beyond time by 1949 days as on 06.07.2021. Office has pointed out further delay of 251 days as on 06.07.2021 has not been explained in the affidavit.

9. Learned counsel for the review applicant-petitioner has tried to submit that cause of action for which the writ petition was filed, still survives and since the writ petition was not decided on merit, as such the review application should be allowed after condoning the delay in filing of the review application.

10. We are constrained to observe that the delay in filing of the recall application was not explained properly as has been rightly noted by this Court in its order dated 03.02.2016. The Court has also noted in its order dated 03.02.2016 that no justifiable reason has been indicated for recalling the order. The Court has also observed that the matter pertains to the seniority which is inconsequential after the retirement of the review applicant-petitioner. We do not find any justifiable reason to entertain this review application particularly having been filed with such substantial delay of 1949 days. No proper explanation has been given in moving this review application with such substantial delay.

11. It appears that the review applicant-petitioner is habitual of approaching the Court and unnecessarily wasting precious time of the Court. He has been filing one after the other petitions since 1986 for a cause which does not survive as the review applicant-petitioner has already retired on attaining the age of superannuation. We find this case to be fit for imposing cost for unnecessarily wasting precious time of the Court by the review applicant-petitioner. Thus, the cost of Rs.25,000/- is imposed, to be deposited with Government Treasury by the review applicant-petitioner within a period of one month, failing which it shall be recovered as arrears of land revenue.

12. There is another aspect of the matter that the counsel of the review applicant-petitioner is not the original counsel who had filed the writ petition and was also not a counsel to move the recall application.

13. In view the judgment of the Apex Court in the case of Tamil Nadu Electricity Board and Anr vs N.Raju Reddiar and Anr: (1997) 9 SCC 736, the review application by engaging a new counsel would not be maintainable and liable to the dismissed.

14. In view of the aforesaid, this review application is dismissed with cost.

(Dinesh Kumar Singh, J.) (Ritu Raj Awasthi, J.)

Order Date :- 8.7.2021

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