Allahabad High Court
Moti And Another vs State Of U.P. Thru. Prin. Secy. ... on 25 August, 2023
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:56947
Court No. - 18
Case :- WRIT - B No. - 769 of 2023
Petitioner :- Moti And Another
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue Civil Secrt. Lko. And 2 Others
Counsel for Petitioner :- Prabhat Kumar Upadhyay
Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Lavania,J.
Heard Sri Prabhat Kumar Upadhyay, learned counsel for the petitioners, Sri Brijendra Singh, learned State counsel appearing for the respondent Nos. 1 & 2 and Sri Dhirendra Kumar Sharma, Advocate, who put in appearance on behalf of respondent No. 3/Nagar Nigam concerned.
By means of this petition, the petitioners have sought the following main reliefs:-
"(i) Issue a writ or direction in the nature of Certiorari thereby quashing the order dated 13.9.2022 passed by Board of Revenue, U.P Lucknow in Revision No: 808/2017 as contained in Annexure No.1 to this Writ Petition.
(ii) Issue a writ order or direction in the nature of Certiorari thereby quashing the impugned order dated 1.12.2016 passed by Sub Divisional Magistrate, Sadar, Gorakhpur as contained in Annexure No. 2 to this Writ Petition."
With regard to the reliefs sought in this petition, learned counsel for the petitioners stated that on an application preferred by the petitioners under Section 33/39 of U.P. Land Revenue Act, 1901 (in short "Act of 1901") for correction of revenue records, the respondent No. 2/Sub Divisional Magistrate, Sadar, Gorakhpur passed an order dated 01.12.2016, whereby, he allowed the application for correction preferred by the petitioners. Thereafter, the respondent No. 3/Nagar Nigam, Gorakhpur preferred an application dated 31.08.2016 for recalling the order dated 27.07.2016 alleging therein that no notice was issue to the applicant (Nagar Nigam, Gorakhpur). This application was preferred after expiry of period of limitation provided for preferring the application for recall of the order.
He further submitted that the respondent No. 2 without considering the issue of limitation and without even recalling the order dated 27.07.2016 provided interim protection to the respondent No. 3, which is impermissible under the law.
Elaborating this aspect of the case, learned counsel for the petitioner has stated that as per the settled preposition of law, the delay has to be condoned first and only then the Court concerned can pass the order on the application for stay as also on the merits of the case. In this regard, reliance has been placed on a Division Bench judgment of this Court passed in the case of Ram Prakash v. Deputy Director of Consolidation and Others reported in 2022 SCC OnLine All 107, relevant portion of which on reproduction reads as under:-
"19.We are not going into the issue as to whether an order passed by appellate authority on an application seeking condonation of delay is an interim order or final as the same has not been referred for consideration by the Division Bench. Different situations may arise in an appeal filed along with application seeking condonation of delay. Firstly, the application for seeking condonation of delay may be dismissed. As a consequence thereof, the appeal will also fail. Another situation may be that application seeking condonation of delay is allowed and thereafter the appeal may either be accepted or rejected.
20.If any statute provides certain period for filing of appeal, an appeal filed beyond the time limit will certainly be not entertained. If the provisions of 1963 Act are applicable and party is entitled to seek condonation of delay in filing appeal, an application has to be filed specifying the grounds on which delay in filing the appeal is sought to be condoned. It is only after that the application is allowed, the appeal can be entertained and heard on merits. Before that the appeal cannot be taken up and considered on merits.
21.As far as the issue regarding hearing of the application seeking condonation of delay and the appeal simultaneously is concerned, in our view, firstly the application has to be considered. Only thereafter, the appeal can be considered on merits but there is nothing in law which requires hearing of appeal on merits to be postponed mandatorily after acceptance of the application seeking condonation of delay. Both can be taken up on the same day. However, the appeal has to be heard on merits only after the application seeking condonation of delay has been accepted.
22.In view of the aforesaid discussion, we answer the question referred to the Division Bench that an application seeking condonation of delay has to be decided first before the appeal is taken up for hearing on merits. However, it can be on the same day and there is no requirement of adjourning the hearing of appeal on merits after acceptance of the application seeking condonation of delay."
Further, reliance has been placed on paragraph 32 of the judgment passed by the Hon'ble Apex Court in the case of Noharlal Verma v. Distt. Coop. Central Bank Ltd. reported in (2008) 14 SCC 445, which on reproduction reads as under:-
"32.Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits."
He further submitted that being aggrieved by the order dated 01.12.2016, the petitioner preferred a revision No. 808/2017, which was dismissed by the respondent No. 1 vide order dated 13.9.2022 after observing that the revision has been filed against an interlocutory order, which is also contrary to the settled principle of law, as the order dated 01.12.2016, which was under challenge in the revision, was affecting the right(s) of the petitioners.
Learned State counsel as also the counsel for the Nagar Nigarm concerned could not dispute the aforesaid legal proposition of law.
Considering the aforesaid, this Court is of the view that interference in this matter is required because without deciding the issue related to delay in moving the application for recall of the order dated 27.07.2016 preferred by the respondent No. 3/Nagar Nigam, Gorakhpur, vide order dated 01.12.2016, the respondent No. 2/Sub Divisional Magistrate, Sadar, Gorakhpur provided the interim protection and as the order dated 01.12.2016 was affecting the rights of the petitioners, it cannot be termed as the interlocutory order. Accordingly, the orders impugned dated 13.09.2022 and 01.12.2016 are hereby set-aside. The matter is remanded back to the respondent No. 2 to consider and decide the matter afresh in accordance with law, expeditiously, after providing proper opportunity of hearing to the parties to the litigation and without granting unnecessary adjournments to either party.
The petition is allowed in above terms.
Order Date :- 25.8.2023
Arun/-
