Allahabad High Court
Santosh Kumar Singh And Others vs State Of U.P Thru. District Magistrate, ... on 7 May, 2024
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:35109
Court No. - 18
Case :- WRIT - C No. - 4149 of 2024
Petitioner :- Santosh Kumar Singh And Others
Respondent :- State Of U.P Thru. District Magistrate, Ayodhya And Others
Counsel for Petitioner :- Deep Narayan Tripathi
Counsel for Respondent :- C.S.C.,Mohan Singh
Hon'ble Manish Kumar,J.
1. Heard learned counsel for the petitioner, learned Standing Counsel for the State and Sri Mohan Singh, learned counsel for the respondent no. 3.
2. Learned counsel for the petitioner has submitted that the present writ petition has been preferred for setting aside the order dated 21.03.2024 passed by the Sub-Divisional Magistrate, Tehsil Milkipur, District Ayodhya i.e. respondent no. 2 in Suit No. 2234 of 2023 (computerized case no. 202304230402234) filed under Section 116 of the U.P. Revenue Code, 2006 (hereinafter referred to as 'the Code, 2006') cancelling the final judgment/order dated 08.01.2024 on the recall application dated 21.03.2024 preferred by respondent no. 3 i.e. Gram Panchayat, Pithla, Tehsil & Block- Milkipur, District Ayodhya.
3. It is further submitted that the private respondent nos. 4 to 12 have not filed any recall application rather with their consent, the judgment/order dated 08.01.2024 was passed in favour of the petitioners being a co-tenure holder of the land.
4. It is further submitted that recall application was filed by the Gram Sabha i.e. respondent no. 3 on 21.03.2024 and the same was allowed on the very same day by cancelling the order dated 08.01.2024. It is further submitted that the said order has been passed without issuing any notice or providing opportunity to the petitioners and the private respondents.
5. It is further submitted that the provisos to Section 209 of the Code, 2006 provides remedy to any person aggrieved by the order passed ex-parte or by default to move application for setting aside such order within the time prescribed and prior to passing of the said order, the authority must summon the party in whose favour the order has been passed to appear and be heard in support of it whereas the said statutory requirement has not been complied with by the respondent no. 2 while passing the impugned order dated 21.03.2024.
6. On the other hand, learned Standing Counsel and counsel for the Gram Sabha are unable to dispute the legal procedure provided under the statute.
7. Learned counsel for the Gram Sabha has submitted that the order dated 08.01.2024 was an ex-parte order without hearing the Gram Sabha and the same has been passed in favour of the petitioner and private respondents in the present writ petition being the co-tenure holders. Hence, an application has been moved for setting aside the ex-parte order on 21.03.2024 and on the very same day, a reasoned order has been passed which is impugned in the present writ petition.
8. After hearing learned counsel for the parties and going through the record of the case, it is an admitted case between the parties that the application preferred by Gram Sabha for setting aside the ex-parte order dated 08.01.2024 passed by the respondent no. 2 on 21.03.2024 has been allowed and the order dated 08.01.2024 was cancelled with a direction to the parties to maintain status-quo and fixed date in the matter.
9. The said order passed by respondent no. 2 is against the provisos to Section 209 of the Code, 2006. For convenience, Section 209 along with provisos are quoted hereinbelow:-
"209. Bar against certain appeals.- Notwithstanding anything contained in sections 207 and 208, no appeal shall lie against any order or decree-
(a) made under Chapter XI of this Code;
(b) granting or rejecting an application for condonation of delay under section 5 of Limitation Act, 1963;
(c) rejecting an application for revision;
(d) granting or rejecting an application for stay;
(e) remanding the case to any subordinate Court;
(f) where such order or decree is of an interim nature;
(g) passed by Court or officer with the consent of parties; or
(h) where order has been passed ex-parte or by default:
Provided that any party aggrieved by order passed ex-parte or by default, may move application for setting aside such order within a period of thirty days from the date of the order;
Provided further that no such order shall be reversed or altered without previously summoning the party in whose favour order has been passed to appear and be heard in support of it."
10. From perusal of the aforesaid provisos, the procedure is provided prior to passing of the order of setting aside the ex-parte order i.e. to issue summons to the parties in whose favour the order has been passed to appear and be heard in support of it whereas it is an undisputed case in the present case, the said procedure has not been followed. The application of the Gram Sabha has been allowed by cancelling the order dated 08.01.2024 passed in favour of the petitioner and other private respondents in the present writ petition, who are co-tenure holders and are directed to maintain status-quo.
11. In view of the facts, circumstances and discussion made hereinabove, the writ petition is allowed.
12. The impugned order dated 21.03.2024 passed by the Sub-Divisional Magistrate, Tehsil Milkipur, District Ayodhya i.e. respondent no. 2 in Suit No. 2234 of 2023 (computerized case no. 202304230402234) filed under Section 116 of the U.P. Revenue Code, 2006 is hereby set aside.
13. The matter is remanded to the respondent no. 2 to decide the application preferred by the Gram Sabha after giving notice and hearing the parties.
Order Date :- 7.5.2024
Nitesh
