Allahabad High Court
Hari Om Rastogi And Another vs State Of U.P Thru. Prin. Secy. ... on 11 January, 2023
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 18
Case :- WRIT - C No. - 1608 of 2022
Petitioner :- Hari Om Rastogi And Another
Respondent :- State Of U.P Thru. Prin. Secy. Revenue And 3 Others Lucknow
Counsel for Petitioner :- Pramod Kumar Yadav
Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the parties.
By means of this petition, the petitioners has challenged the order dated 03.12.2021, whereby, the respondent No. 3/Additional Record Officer/A.D.M., Unnao on an application for recall of the order dated 22.10.2021 filed along with an application seeking condonation of delay in moving the application for recall, passed the interim order dated 03.12.2021 thereby staying the implementation and operation of the order dated 22.10.2021.
The main ground to assail the order impugned dated 04.12.2021 is to the effect that the Authority concerned without condoning the delay was not empowered to pass the order staying the implementation and operation of the order dated 22.10.2021.
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."
The aforesaid could not be disputed by the learned counsel representing the State and Sri Dilip Kumar Pandey, learned counsel representing the Gaon Sabha concerned.
Considering the aforesaid legal preposition as also the aforesaid undisputed facts of the case, this Court is of the view that the order impugned is liable to be interfered with. Accordingly, the order impugned dated 03.12.2021 is hereby set-aside. The matter is remanded back to the respondent No. 3/Additional Record Officer/A.D.M., Unnao for decision afresh. The petitioner is at liberty to prefer the objection to the application seeking condonation of delay as also the application for recall.
It is expected from the respondent No. 3 to dispose of the application seeking condonation of delay first in view of the law laid down in the judgments, referred above. It is further expected from the respondent No. 3 that he shall dispose of the matter as early as possible say within a period of six months from the date of production of a certified copy of this order. It is further provided that during pendency of the application for recall, the parties are directed to maintain status-quo.
With the aforesaid observations/directions, the petition is allowed.
Order Date :- 11.1.2023Arun/-
