Allahabad High Court
Sushil Kumar vs State Of U.P. And 3 Others on 25 July, 2023
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:147771
Court No. - 52
Case :- WRIT - C No. - 23106 of 2023
Petitioner :- Sushil Kumar
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Alka Srivastava
Counsel for Respondent :- C.S.C.,Namit Kumar Sharma,Pankaj Srivastava
Hon'ble Saurabh Srivastava,J.
1. Heard Sri Sanjay Kumar Srivastava, holding brief of Ms. Alka Srivastava, learned counsel for petitioner, Sri Namit Kumar Sharma, learned counsel for respondent no.4 and Sri Satyendra Bhushan Dubey, learned Standing Counsel for the State-respondent nos.1 to 3.
2. The present petition has been filed seeking the following relief:-
"a) Issue a writ, order or direction in the nature of Certiorari quashing the impugned Administrative Order dated 09.05.2023 passed by the Additional City Magistrate (IVth)/Deputy Collector, Revenue, Meerut, whereby the Judicial Order dated 18.03.2023 passed in RST No.17 of 2011-12, T20121152186, "Bharat Singh and Others Vs. State of U.P. and Others" has been recalled. (Annexure No.7 and 3 to this writ petition) respectively."
3. It is the case of the petitioner that name of the petitioner has been entered into the revenue records in pursuance of the sale deed executed by the original tenure holder, before that the matter of mutation has been travelled from trial court to the Board of Revenue and in pursuance of the order passed by the Board of Revenue, the proceedings of mutation have been finalized in favour of the petitioner. After gap of two years, respondent no.3 suo moto recalled the order dated 18.03.2023 by way of passing the administrative order dated 09.05.2023 which impugned the present petition.
4. The impugned order has been challenged precisely on the ground of competency of respondent no.3 along with procedure adopted by him at the time of recalling the order dated 18.03.2023 by way of issuing order dated 09.05.2023.
5. On precise query made before learned counsel for the respondent no.4, it has been fairly conceded that before issuing the order dated 09.05.2023, no opportunity has been extended in favour of the petitioner for showing his bonafide or rebutting the report submitted in shape of alleging some documents as forged submitted by the original tenure holder and as such, it is crystal clearly proved that before arriving over the conclusion in shape of order dated 09.05.2023, neither the original tenure holder nor the petitioner has ever been given any type of notice for controverting, rebutting or opposing the report submitted before the respondent no.3.
6. For substantiating the arguments as raised by learned counsel for respondent no.4, he relied upon the judgment rendered by coordinate Bench of this Court in case of Smt. Mithilesh Kumari Vs. State of U.P. and others [(2011 (1) ADJ 40]. The findings recorded by the coordinate Bench while deciding the issue that during pendency of the case if certain documents have been apprised and the same have been found forged later on, the power vests with the court to recall the order suo moto, since the same comes under the ambit of inherent power of the Court. The extract and ratio decided in the aforesaid judgment mentioned under paragraph 30, is quoted hereinbelow:-
"30. Thus forgery is the false making of any written document for the purpose of fraud or deceit. Its definition has been quoted with approval by Apex Court In Indian Bank Vs. Satyam Fibres (India) Pvt Ltd. (1996) 5 SCC 550 ( Paras 26 and 27). The Apex Court in para 28 has said that fraud is an essential ingredient of forgery. It further held:
"since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a part, the court has the inherent power to recall its order.""
7. Extending regards to the judgment rendered by the coordinate Bench of this Court and after thorough scrutiny of the same, it has been transpired that the discussion made in the case of Smt. Mithilesh Kumari (supra) is dealing with the powers vested with the High Court under Article 226 and as such, the power vests with the High Court under Article 226 cannot be equated with the powers of respondent no.3, whereas before issuing the order dated 09.05.2023, the respondent no.3 was duty incumbent to afford proper opportunity of hearing against which the order was proposed to be passed. In absence of seeking any reply in shape of proving their bonafide, the order dated 09.05.2023 is not sustainable in the eye of law.
8. In view of the aforementioned facts and circumstances, the order dated 09.05.2023 passed by respondent no.3 is hereby quashed and set aside, however the matter is remitted back to the respondent no.3 for deciding afresh after affording due opportunity to the original tenure holder along with the petitioner since at present, the rights have been incurred in favour of the petitioner in pursuance of the sale deed executed by the original tenure holder.
9. Accordingly, the present petition stands allowed.
Order Date :- 25.7.2023
Vivek Kr.
