Smt. Shanti Devi vs State Of U.P.Through Collector ...
2023 Latest Caselaw 3653 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 7
 

 
Case :- WRIT - C No. - 3000049 of 2009
 

 
Petitioner :- Smt. Shanti Devi
 
Respondent :- State Of U.P.Through Collector Balrampur
 
Counsel for Petitioner :- Mohd. Adil Khan
 
Counsel for Respondent :- C.S.C,Mohd.Saeed Ii
 

 
Hon'ble Abdul Moin,J.

List revised. None appears on behalf of respondent no.4 despite the name of Sri Mohd. Saeed, Advocate, being indicated in the cause list from the side of the respondents.

The matter being old, as such, the Court proceeds to decide the same with the help of learned counsel for the petitioner and learned Standing Counsel.

Heard.

The crux of the issue urged by learned counsel for the petitioner is that upon a challenge being raised to an order passed in Appeal No.143 of 1977 in re: Smt. Shanti Devi vs. State of U.P. and another passed by learned District Judge, Gonda, this Court vide judgment and order dated 04.12.1981, a copy of which is Annexure-4 to the writ petition, passed in Writ Petition No.2352 of 1978 in re: Smt. Shanti Devi vs. District Judge, Gonda and others, had set aside the appellate order and directed the District Judge to restore the appeal to its original number and to decide the same. The application filed by the petitioner for hearing of the appeal which was filed vide application dated 18.08.2008, a copy of which is Annexure-5 to the writ petition, has been dismissed by the appellate Court/Authority vide order dated 30.03.2009, a copy of which is Annexure-6 to the writ petition, on the ground that in another case, the matter has been remanded to the Prescribed Authority for a fresh decision and that the application filed by the petitioner bringing on record the order passed by the writ Court has been filed after a substantive delay.

The argument urged is that when the High Court had set-aside the appellate order passed by the learned District Judge and had required the appellate authority to decide the appeal and the petitioner having brought the said judgment of the High Court to the knowledge of the appellate authority as to whether rejecting of the application would itself render an order being passed on the appeal?

Suffice to state that once this Court had set-aside the order passed by the appellate court/appellate authority and had directed the appellate court/appellate authority to decide the appeal afresh there would not be any occasion for rejecting the application of the petitioner inasmuch as the appellate authority was required to pass an order in the appeal which stood revived with the setting aside of the appellate order.

Interestingly in paragraph 3 of the counter affidavit filed by the State the respondents have themselves admitted that it is the application filed by the petitioner in the appeal which has been rejected, meaning thereby that no orders have been passed on the appeal as of date.

Considering the aforesaid, the writ petition is allowed. The order dated 30.03.2009, a copy of which is Annexure-6 to the writ petition, is set-aside. The appellate court/appellate authority is directed to pass orders in the appeal of the petitioner in terms of the directions issued by the writ Court dated 04.12.1981.

As the matter is old, the appellate court/appellate authority would pass orders on merits of the case within a period of three months from the date of receipt of a certified copy of this order in accordance with law after due opportunity of hearing to all the concerned parties provided there is no legal impediment.

Order Date :- 6.2.2023

A. Katiyar