Uttarakhand High Court
Mr. Arvind Kumar Sharma vs Unknown on 7 August, 2023
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WPMS No. 2210 of 2023
Hon'ble Sharad Kumar Sharma, J.
Mr. Arvind Kumar Sharma, Advocate, for
the petitioner.
Mr. R.C. Arya, Standing Counsel, for the
State of Uttarakhand.
Ms. Harshi Gupta, Advocate, on behalf of
Mrs. Anjali Bhargava, Advocate, for respondent
No.2.
In a proceeding which were held under
Section 9A (2) of Consolidation of Holdings Act,
which stood culminated by the order of Settlement
Officer Consolidation, was put to challenge by the
petitioner in Revision No. 167 / 2015-16, Meghpal
Vs. State and others, by invoking the provisions as
contained under Section 48 of the Consolidation of
Holdings Act. The said Revision was decided on
merits by a judgement dated 11th October, 2018,
making clear cut observations, that the revisionist,
therein, was heard as against the order passed by
the Settlement Officer Consolidation, which was
then under challenge, but however, ultimately, the
Revisional Court has dismissed the Revision,
holding it to be not maintainable.
In fact, it was at this stage, that the petitioner
should have invoked the Writ Jurisdiction under
Article 227 of the Constitution of India, by putting
a challenge to the order dated 11th October, 2018.
But on account of the legal advice as it was
extended to him, he chose to file a Restoration
Application, seeking recall of the order dated 11th
October, 2018. The said Restoration Application, as
preferred by the petitioner was dismissed for want
of prosecution on 24.02.2022. Seeking its recall of
order dated 24.02.2022, a 2nd Restoration
Application was filed, being Restoration
Application No. 34/2022-23, the same has been
dismissed by the Court of Deputy Director
Consolidation, by the impugned order dated 8th
June, 2023. Hence, the Writ Petition.
Since, the order, which was sought to be
recalled by filing the first Restoration Application,
being the order dated 11th October, 2018, was a
judgment rendered by the Deputy Director
Consolidation on merits, the appropriate recourses
available to the present petitioner would have been
to file a Writ Petition under Article 227 of the
Constitution of India, instead of filing the
Restoration Application.
But, it has been argued by the learned
counsel for the petitioner, that the revisionist
therein, was bound by the legal advice given by the
counsel, as he was a layman, because of which, he
has preferred the Restoration Application. He
submits that on account of the wrongful advice
given, he proceeded to file the Restoration
Application, which has been rejected by the
impugned order.
Even under law, as applicable in the field of
consolidation proceedings, the Restoration
application against an order which has been passed
on merits is not maintainable because, the
Restoration Application cannot be resorted to,
under the garb of seeking a review of the order,
which has been passed on merits.
Thus, I do not find any illegality in the
rejection of the Restoration Application preferred
by the petitioner, which is under challenge in the
present Writ Petition.
While dismissing this Writ Petition as against
the concurrent rejection of the Restoration
Application, it will be left open for the petitioner to
file a Writ Petition, as against the principle order of
Deputy Director Consolidation i.e. dated 11th
October, 2018, before this Court.
Subject to the aforesaid exception, as carved
out for the petitioner, to prefer a Writ Petition
against the order dated 11th October, 2018, the Writ
Petition, qua the rejection of the Restoration
Application, would stand dismissed.
(Sharad Kumar Sharma, J.)
Dated 07.08.2023
Shiv
