Ramesh Singh vs State Of U.P. Thru. Its Addt. Chief ...
2023 Latest Caselaw 2900 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 18
 
Case :- MATTERS UNDER ARTICLE 227 No. - 368 of 2023
 
Petitioner :- Ramesh Singh
 
Respondent :- State Of U.P. Thru. Its Addt. Chief Secy. Deptt. Of Revenue, Civil Sectt. Lko. And 4 Others
 
Counsel for Petitioner :- Ashutosh Misra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Lavania,J.

Heard.

The petitioner has sought the following main reliefs:-

"(i) Set-aside the entire proceeding of the appeal no. 7419 of 2022 Computerize Case No. T202208300507419 (Sandeep Kumar Awasthi Versus Ramesh and Others) under Section 35(2) of U.P. Revenue Code 2006 pending before the respondent no. 3 which is complete misuse of process of law in the interest of justice.

(ii) Set-aside the impugned order dated 22.12.2022 passed by the respondent no. 3 in appeal no. 7419 of 2022 Computerize Case No. T202208300507419 (Sandeep Kumar Awasthi Versus Ramesh and Others) under section 35(2) of U.P. Revenue Code 2006 (Contained as Annexure No. 1) which is unreasoned and non-speaking order and also passed without considering the maintainability and also without condoning the delay, in the interest of justice.

(iii) Issue an order or direction to the Respondent no. 3 to decide the objection of the petitioner on maintainability of the appeal filed by the stranger after the period of about 5 years without any application of condonation to delay within stimulated time."

By means of the present petition, the petitioner has  challenged the order dated 22.12.2012 as also has challenged the entire proceedings of Appeal No. 7419 of 2022 Computerize Case No. T202208300507419 (Sandeep Kumar Awasthi Versus Ramesh and Others).

In support of the reliefs sought in the present petition, it is stated by Sri Ashutosh Mishra, learned Counsel for the petitioner that opposite party no. 4 Sandeep Kumar Awasthi, earlier preferred an application under Section 98 of the U.P. Revenue Code, 2006 read with Section 101 and 105 of the Code of 2006, on 06.06.2022, which relates to restriction of transfer  of land from Bhoomidhar belonging from Scheduled Castes. 

The application so filed dated 06.06.2022 was preferred by the opposite party no. 4 Sandeep Kumar Awasthi in relation to the deed executed by the opposite party no. 5 to the petitioner.   This application preferred by opposite party no. 4 was  not disposed of finally in reasonable time by the authority concerned as such the opposite party no. 4 preferred a petition registered as Writ C No. 6377 of 2022 (Sandeep Kumar Vs. State of U.P. and Others), which the petition preferred by opposite party no. 4 was dismissed vide order dated 15.11.2022, after observing that petitioner (opposite party no. 4 herein) does not have any right in the property nor he has any locus to maintain the application under Section 98 of Code of 2006.  The order dated 15.11.2022 annexed as Annexure No. 6 to the writ petition, has been referred by the petitioner, and the same on reproduction reads as under:-

"Heard learned counsel for the petitioner as well as the learned Additional Chief Standing Counsel for the State-respondents and Sri Ashutosh Mishra, learned counsel for the private respondent nos. 3 and 4.

The petitioner is seeking the following reliefs which read as under:-

"i. a writ, order or direction in the nature of MANDAMUS, commanding the Sub-Divisional Officer, Colonelganj, District Gonda/opposite party no. 2 to decide the application dated 06.06.2022, filed by petitioner U/s- 98 of U.P. Revenue Code read with Section 101/105 of U.P. Revenue Code, within stipulated time frame preferably within 90 days, pending before him, contained as Annexure No. 1 to this writ petition.

ii. a writ, order or direction in the nature of MANDAMUS, commanding the Sub-Divisional Officer, Colonelganj, District Gonda/opposite party no. 2 to register the application dated 06.06.2022, filed by petitioner U/s- 98 of U.P. Revenue Code read with Section 104/105 of U.P. Revenue Code and decide the same, within stipulated time frame preferably within 90 days, pending before him, contained as Annexure No. 1 to this writ petition."

The submission of learned counsel for the petitioner is that the private respondent no. 3 is the original tenure holder of Plot No. 1016 measuring 0.344 hectare situate in Village Gogia, Pargana Gwarich, Tehsil Colonelganj. District Gonda.

Since the private respondent no. 3 belonged a scheduled caste, accordingly, he moved an application seeking permission of the SDM concerned to sell some part of his plot. The contention is that the averments made by the private respondent no. 3 while obtaining the permission from the SDM was false and the sale deed ultimately executed in favour of the private respondent no. 4 is void. It is for the aforesaid reason that the petitioner has moved a representation to the SDM concerned, a copy of which has been brought on record as Annexure No. 1 and it is in this context that the petitioner seeks reliefs which has been quoted hereinabove seeking mandamus for registration of the aforesaid case on the representation as well as deciding the same within time frame to be fixed by the Court.

The learned counsel for the private respondent no. 3 and 4 has submitted that the instant petition is a garb under which the installation of a petrol pump which installation of a has been allotted to the private respondent no. 4 is sought to be stalled.

The petitioner does not have any locus-standi to maintain the petition as none of the rights of the petitioner are being infringed in any manner whatsoever to enable him to maintain a writ seeking a relief of mandamus as sought for.

It is also urged by the learned counsel for the private respondent no. 3 and 4 that at the behest of the petitioner also, a compliant was also moved whereas the State had moved an application seeking recall of the permission which was granted to the private respondent no. 3 for executing a sale deed in favour of the private respondent no. 4. The said application for recall of the permission filed by the State was dismissed. Thereafter the State preferred a revision which also came to be dismissed on 20.04.2022 and the petitioner not being satisfied thereafter has moved a representation which is now sought to be converted into a complaint/a case and for which the mandamus has been sought, thus, the contention is that the petitioner is a busy body having no right and has resorted to the sharp tactics in order to cause harm to the private respondent no. 3 and 4.

In response to the aforesaid submission, learned counsel for the petitioner Sri Pradeep Kumar Shukla submits that the respondent no. 3 and 4 have no right in the property as the basis for which the sale deed is executed as it was found to be incorrect and for the said reason, once the sale deed is not valid, the petitioner belonging to the same village has a right to raise the issue.

Having heard the learned counsel for the parties and from the perusal of the material on record, the learned counsel for the petitioner could not dispute that in so far as the said land which is the subject matter of the sale deed is concerned, he has no right, title or interest therein. He is complete stranger to the said land which has been sold by the private respondent no. 3 to the private respondent no. 4. Even assuming if there is any discrepancy in so far as the permission is concerned, he could not dispute the fact that the application for recall moved by the State and its subsequent revision has been dismissed.

For the aforesaid reason where the petitioner does not have any right in the property nor he has any locus to maintain such petition especially where if at all any party has already taken recourse to the remedy available which has been rejected which has also not been disclosed by the petitioner by filing the writ petition, this Court does not find that there is any merit in the petition which is absolutely frivolous and misconceived, accordingly, it is dismissed. "

It is further stated that prior to passing of order dated 15.11.2022 in Writ C No. 6377 of 2022 filed by opposite party no. 4 Sandeep Awasthi, he also filed an appeal no. 7419/2022 Computerize Case No. T202208300507419 (Sandeep Kumar Awasthi Versus Ramesh and Others), impeaching the order of mutation passed by Sub Divisional Magistrate, Tehsil Colonelganj, District Gonda, dated 17.12.2016 passed in Case No. 411 filed under Section 34 of Code of 2006. In this appeal, the petitioner preferred an objection regarding the maintainability of the appeal filed by opposite party no. 4. However, the appellate authority-Sub Divisional Magistrate, Tehsil Colonelganj, District Gonda, without considering the fact that appeal has been filed with huge delay as also the issue of maintainability of the appeal, passed the impugned order dated 22.12.2022, whereby stayed the operation and implementation of the order dated 17.11.2016.

It is also stated that as the appeal was filed with huge delay on 08.07.2022, the appellate authority-Sub Divisional Magistrate, Tehsil Colonelganj, District Gonda, ought to have first condoned the delay and thereafter appellate authority can pass any order including staying the operation and implementation of order dated 17.11.2016 and without condoning the delay, no order could have been passed by the the competent authority-Sub Divisional Magistrate, Tehsil Colonelganj, District Gonda.

In this regard he has placed reliance on the judgment of Division Bench of this Court dated 03.02.2022 passed in Consolidation No. 6574 of 2016 Ram Prakash Versus Deputy Director of Consolidation, Hardoi and Others.  The operative portion of the order dated 03.02.2022, on reproduction reads as under:-

"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."

He has also placed reliance on paragraph 32 of the judgment of the Hon'ble Apex Court in the case of Noharlal Verma Versus District Co-operative Central Bank Ltd. reported in (2008) 14 SCC 445, which reads as under:-

"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."

Reference has also be made to paragraph 491 of U.P. Revenue Code Manual, which on reproduction reads as under:-

"Where an appeal, revision or application for review is presented after the expiry of the period of limitation specified threfor accompanied by an application supported by affidavit for the condonation of the delay, the court shall neither stay the effect and operation of the judgment, decree or order in question nor grant any other interim relief unless the delay is condoned. "

Learned Counsel for the petitioner submitted that in the aforesaid background of the case, interference of this Court is required in this matter.

Sri Hemant Kumar Pandey, learned State Counsel has stated that in the instant case, particularly in the facts and circumstances as narrated in the present petition, justice would suffice if a direction is issued to opposite party no. 3-Sub Divisional Magistrate, Tehsil Colonelganj, District Gonda, to decide the issue of condonation of delay in view of settled principle of law as also the objection of maintainability of the appeal within specified time.

Considering the aforesaid, this Court is of the view that in keeping the present petition pending, no fruitful purpose would be served.

In view of above, the instant petition is disposed of with a direction to the opposite party no. 3-Sub Divisional Magistrate, Tehsil Colonelganj, District Gonda, to decide the issue of condonation of delay and issue of maintainability of appeal, within one month from the date of production of certified copy of this order, if there is no other legal impediment in this regard after providing proper opportunity of hearing to the parties to the litigation. For conducting the proceedings in the time specified, adjournments be avoided.

It is expected from opposite party no. 3--Sub Divisional Magistrate, Tehsil Colonelganj, District Gonda, while deciding the same, he would consider the entire material including the order of this Court dated 15.11.2022 passed in Writ C No. 6377 of 2022  and pass a reasoned and speaking order.

Order Date :- 28.01.2023

Jyoti/-