Allahabad High Court
Habib Ulla Khan And 3 Others vs State Of U.P. Thru. Prin. Secy. ... on 13 January, 2023
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
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Court No. - 18
Case :- WRIT - B No. - 292 of 2022
Petitioner :- Habib Ulla Khan And 3 Others
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Revenue,Lko. And 2 Others
Counsel for Petitioner :- Amit Kumar Singh
Counsel for Respondent :- C.S.C.,Ajay Pratap Singh Vatsa
Hon'ble Saurabh Lavania,J.
Heard Sri Amit Kumar Singh, learned counsel for the petitioners, learned State counsel for the respondent Nos. 1 and 2, Sri Ajay Pratap Singh Vatsa, Advocate and Sri Surya Prakash Singh, Advocate, who has filed his Vakalatnama on behalf of the respondent Nos. 4 to 7, which is taken on record.
By means of this petition, the petitioners have prayed for the following main reliefs:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 22.02.2022 and 28.04.2022 passed by opposite party No.2, as contained in Annexure No. 1 and 2 to this writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties no to proceed further in compliance of the impugned order dated 22.02.2022."
The main ground to assail the orders impugned is to the effect that the Authority concerned i.e. respondent No. 2/Deputy Directory of Consolidation, Sultanpur without condoning the delay was not empowered to pass the order staying the implementation and operation of the order dated 06.12.2014, in relation to which, an application for recall was preferred after about 7 years alongwith the application for condonation of delay.
Elaborating this aspect of the case, learned counsel for the petitioners 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 side opposite.
Considering the aforesaid legal preposition as also the aforesaid undisputed facts of the case, this Court is of the view that the orders impugned are liable to be interfered with. Accordingly, the writ petition is allowed. The orders impugned dated 22.02.2022 and 28.04.2022 are hereby set-aside. The matter is remanded back to the respondent No. 2/Deputy Director of Consolidation, Sultanpur for decision afresh. The petitioners are at liberty to file the objection to the application seeking condonation of delay as also the application for recall, if the same have already not filed.
It is expected from the respondent No. 2 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. 2 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.
Order Date :- 13.1.2023/Arun/-
