Allahabad High Court
Anita Rastogi vs Nayab Tehsildar, Tehsil Gonda And ... on 16 March, 2023
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 19
Case :- WRIT - C No. - 1976 of 2023
Petitioner :- Anita Rastogi
Respondent :- Nayab Tehsildar, Tehsil Gonda And Another
Counsel for Petitioner :- Ashish Kumar Singh,Dileep Singh
Counsel for Respondent :- C.S.C.
Hon'ble Saurabh Lavania,J.
Heard learned Counsel for the petitioner and Sri Dr. Krishna Singh, learned State Counsel appearing for the respondent.
In view of order proposed to be passed, the notice for service upon respondent no. 2 is dispensed with.
By means of the present petition, the petitioner has sought the following main reliefs:-
"i. Issue a writ, order or direction to set aside the impugned order dated 01.08.2022 passed by opposite party No. 1 in the Case No. RST/10058/2020 (Computerized Case No. T 202008300410058) under Section 35 U.P. Revenue Code 2006, anita Rastogi Versus Kamla Devi, which contained as Annexure No. 1 to this petition, in the interest of justice.
ii. Issue a writ, order and direction in the nature of Mandamus to opposite party No. 1 to grant complete opportunity of hearing on interim relief application, in the Case No. RST/10058/2020 (Computerized Case No. T 202008300410058) under section 35 U.P. Revenue Code 2006, Anita Rastogi Versus Kamla Devi, in the interest of justice."
For the reliefs sought, the learned Counsel for the petitioner says that order impugned dated 01.08.2022 passed by the opposite party no. 1-Nayab Tehsildar, Tehsil Gonda, District Gonda, is in violation of law laid down by the Hon'ble Apex Court as also by this Court.
It is further stated that the issue in the present petition, is to the effect that prior to passing any order on merits, the application for condonation of delay should be decided. In other words, the application for condonation of delay is liable to be decided first before entering into the merits of the case.
In support of his submission, learned Counsel for the petitioner 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 relevant 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."
Learned Counsel for the petitioner further stated that in view of the observation of Hon'ble Apex Court, the application for condonation of delay is liable to be decided first. Reliance has also been placed 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."
He further submitted that no application for recall of final order is maintainable as also the impugned order is unsustainable in the eyes of law. In this regard a reference has been made in Full Bench of this Court in the case of Anar Kali & Ors. vs. Deputy Director of Consolidation & Others; reported in 1997 (15) LCD 921.
As such, indulgence of this Court is required.
Learned State Counsel Sri Dr. Krishna Singh has raised preliminary objection. He submitted that in view of the statutory remedy available to the petitioner, the present petition is not maintainable.
Considering the aforesaid, the present petition is dismissed in view of the remedy available in the statute itself to the petitioner. The liberty is granted to the petitioner to avail appropriate remedy available in the statute.
Order Date :- 16.3.2023
Jyoti/-
