Allahabad High Court
Mool Chand vs State Of U.P. Thru Principal Secretary ... on 3 May, 2024
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:35229
Court No. - 17
Case :- WRIT - C No. - 1005266 of 2004
Petitioner :- Mool Chand
Respondent :- State Of U.P. Thru Principal Secretary Forest Deptt. And Anr
Counsel for Petitioner :- Salil K. Srivastava,Dharmendra Kumar Gupta
Counsel for Respondent :- C.S.C
Hon'ble Manish Mathur,J.
Application No. 3 of 2022
Application has been filed seeking condonation of delay in filing recall of order dated 9.10.2017 whereby petition had been dismissed in default. No objections to the application have been filed till date. Cause shown in the affidavit filed in support of application is sufficient and as such delay in filing recall application is condoned.
Application No. 4 of 2022
Application has been filed seeking restoration of writ petition by recall of order dated 9.10.2017 whereby petition had been dismissed in default. Delay in filing the application has already been condoned. No objections to the application has been filed till date. Cause shown in the affidavit filed in support of application is sufficient and as such order dated 9.10.2017 is recalled restoring the petition to its original number.
Order on the Memo of Petition
1. Heard learned counsel for petitioner and learned State Counsel for opposite parties.
2. Petition has been filed challenging order dated 26th February, 2004 passed by opposite party No.2 exercising powers of review under the U.P. Public Premises (Eviction of Unauthorized Occupants) Act 1972.
3. It has been submitted that earlier the prescribed authority had passed order dated 16th November, 1992 against petitioner holding them to be in illegal possession over property in question. The petitioner had thereafter challenged the said order in appeal which was allowed vide judgment and order dated 10th September, 2002 in Civil Misc. Appeal No. 26 of 1993 whereagainst the State of U.P. had filed review petition registered as Civil Misc. Case No. 33 of 2022 in which the impugned order has been passed.
4. Learned counsel for petitioner submits that there is no provision under law conferring power of review upon the appellate authority in terms of the Act of 1972 and therefore the order impugned has been passed without jurisdiction. He has placed reliance on judgment rendered by Supreme Court in the case of Dr. (Smt.) Kuntesh versus Management of Hindu Kanya Mahavidyalaya, Sitapur (1987) 4 SCC 525 as well as judgments rendered by Co-ordinate Benches of this court in the cases of Writ C No.1004710 of 2004 (Jagmohan Lal versus State of U.P. and another), Writ C No.1004711 of 2004 (Rajesh Kumar versus State of U.P. & another) and Writ C No. 1004049 of 2004 (Hardwari Lal versus State of U.P. & another).
5. Learned State Counsel on the basis of counter affidavit has refuted submissions advanced by learned counsel for petitioner with submission that power of review is inherent where it is necessary to meet the ends of justice and since the order passed by the appellate authority were against material on record, the court has rightly exercised inherent power of review.
6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is quite evident that the order impugned dated 26th February, 2024 has been passed exercising review jurisdiction against judgment and order dated 10th September, 2002 passed in Civil Misc. Appeal No. 26 of 1993.
7. Hon'ble Supreme Court in the case of Kuntesh Gupta (supra) has clearly held that the power of review is not inherent but has to be statutorily conferred upon an authority.
8. In the instant case, it is quite evident upon perusal of the Act of 1972 that there is no power of review conferred upon an authority exercising appellate jurisdiction against orders passed by the prescribed authority under Section 3/4 of the Act of 1972.
9. Coordinate Benches of this Court in the judgments referred to herein above have also held the same that there is no provision of review conferred upon an appellate authority under the Act of 1972.
10. This being settled position, the impugned order dated 26th February, 2004 being clearly against law enunciated is hereby quashed by issuance of writ in the nature of Certiorari.
11. Resultantly the petition succeeds and is allowed. Parties to bear their own cost.
Order Date :- 3.5.2024
prabhat
