Allahabad High Court
Renu Pandey vs Commissioner Devi Patan Gonda & ... on 22 March, 2021
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 6
Case :- MISC. SINGLE No. - 7975 of 2021
Petitioner :- Renu Pandey
Respondent :- Commissioner Devi Patan Gonda & Ors.
Counsel for Petitioner :- Indrajeet Shukla
Counsel for Respondent :- C.S.C.,Ashutosh Misra,Pankaj Gupta
Hon'ble Mrs. Sangeeta Chandra,J.
Heard learned counsel for the petitioner, learned Standing Counsel for State respondents, Sri Pankaj Gupta for Gaon Sabha and Sri Ashutosh Mishra for respondent no.3.
This petition has been filed challenging order dated 14.1.2021 passed by the Commissioner, Devi Patan Division, Gonda in revision no.C201608000000174 and also order dated 29.6.2016 passed by the Tehsildar in Case no.1501 under Section 34 of U.P. Land Revenue Act.
It has been submitted that a mutation application was decided on 20.4.2013 by the Tehsildar against which, a recall application was moved on 13.6.2013 along with the application for condonation of delay and without issuing notice and without hearing the petitioner order dated 13.6.2013 was recalled. The petitioner being aggrieved filed revision which was allowed on 27.4.2015. The order dated 19.6.2013 was set aside. A direction was issued to the Tehsildar to decide the application for restoration. By the order dated 29.6.2016 the matter was heard again but without condoning the delay, recall application was allowed. The petitioner preferred a revision which has been rejected on 14.1.2021. It has been submitted on the basis of judgment rendered by a coordinate Bench in Parbhu and another vs. DDC and others, Writ B no.54502/2012 decided on 19.10.2012 that consolidation authorities erred in deciding application on merit without condoning the delay. The Court relied upon observations made by the Supreme Court in Sneh Gupta vs. Devi Sarup and others (2009) 6 SCC 194 that in the absence of any application for condonation of delay, the court has no jurisdiction to entertain an application for setting aside the decree after expiry of period of limitation. The Court also relied upon the observation made by the Supreme Court in Ragho Singh vs. Mohan Singh 2001 (9) SCC 717 that even if an application is beyond time by ten days and if any application under Section 5 of Limitation Act is not filed or filed but not taken up and decided on its merit, the court would lack jurisdiction to recall an order.
Learned Standing Counsel and learned counsel for respondent no.6 state that mutation application was filed by the petitioner by concealing facts and when restoration application was filed, true facts came to the notice of the Tehsildar, who rightly recalled his earlier order and this fact has been noticed by the revisional court in the order dated 14.1.2021 and thus there is no illegality in the order impugned.
Having heard learned counsel for the petitioner, learned counsel for respondent no.6 and learned Standing Counsel, this Court finds that even if respondents' case on merit deserved a recall of earlier order dated 20.4.2013 of mutation in favour of the petitioner, the same could not have been considered without first issuing notice on application for condonation of delay and deciding the said application before entertaining the recall application as it has been observed by the Supreme Court and by this Court that till delay is condoned there is no application in the eye of law, and the court concerned would have no jurisdiction under Section 3 of the Limitation Act. The procedure prescribed under law should be followed. Even if respondents had a good case, first the application for condonation of delay should have been considered.
The impugned orders are set aside. The matter is remanded to the court of Tehsildar concerned to first consider the application for condonation of delay and pass appropriate orders and thereafter consider the recall application on merit and pass orders. Since the matter has been pending since 2013, it is expected that the Tehsildar concerned shall pass appropriate orders within a period of three months from the date, a certified copy of this order is produced before him.
The writ petition stands allowed.
Order Date :- 22.3.2021
Sachin
