Court No. - 5
Case :- WRIT - C No. - 9612 of 2018 Petitioner :- Smt. Girija Devi And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Bala Nath Mishra,Ram Vishal Mishra Counsel for Respondent :- C.S.C.,Ganesh Datt Mishra
Hon'ble Pankaj Naqvi,J.
Heard Sri B.N. Mishra, learned counsel for the petitioners, Sri Ganesh Datt Mishra, learned counsel for private respondent and Sri Abhishek Shukla, learned Standing Counsel.
Raja Ram / father of petitioner no.1 allegedly executed a will / gift dated 3.10.1970 in her favour, who stood recorded in the revenue records in respect of the plot in dispute. The respondent no.3 / Allahabad Cooperative Milk Society filed an application under Section 33/ 39 of the U.P. Land Revenue Act, 1901 before respondent no.2 for correction of records, which came to be allowed on 30.6.2007, deleting the name of petitioner no.1, and substituting that of respondent no.3 allegedly without notice / opportunity to petitioner no.1. The petitioners filed an application for recall of the order dated 30.6.2007, which was allowed on 14.10.2009, whereby the order dated 30.6.2007 was set aside. Petitioner no.1 executed a registered sale deed dated 13.4.2010 in respect of the property in dispute in favour of petitioner no.2. The application of respondent no.3, under Section 33/39 of the Act was dismissed on 5.6.2017. A recall was filed by respondent no.3 along with affidavit on 1.9.2017 for recall of the order dated 5.6.2017, which was allowed on 19.2.2018, setting aside the order dated 5.6.2017 allowing the restoration, and directing for fresh adjudication, on merits after hearing the parties concerned.
Learned counsel for the petitioner has submitted that once the Sub-Divisional Officer on 5.6.2017 dismissed the case on merits, i.e, after taking cognizance of written arguments of respondent no.3, then the same could not have been reviewed under order dated 19.2.2018, thus a recall of the said order was not maintainable. He in support of his contention, relied on 1997 (31) Allahabad Law Reports, 680, Shivraji Vs. Deputy Director of Consolidation Allahabad and on a judgment dated 31.1.2011 in Civil Misc. Writ Petition No. 33955 of 1997, Shivdhari Vs. The D.D.C, & others.
It is well settled that proceedings under Sections 33/ 39 of the U.P. Land Revenue Act, 1901 are summary in nature and ordinarily long standing entries cannot be upset without notice to the person concerned, unless it involves forgery / manipulation of records.
The order dated 5.6.2017 manifests that the same was passed only after taking note of the written arguments of respondent no.3. The recall of respondent no.3 was allowed under the order dated 19.2.2018 on the premise that 30.5.2017 was the date fixed before the Sub- Divisional Officer in the case in question, when Sri Chandrika Prasad Yadav, counsel for respondent no.3 was not present, as his mother had died, and he was busy in her 13th day ceremony, his associate counsel was informed of the next date fixed by the Reader for 13.6.2017. The Presiding Officer / Respondent no.2 held that upon inspection of the cause list of the cases fixed on 30.5.2017, it transpired that lawyers had struck work, a general date was fixed in all the cases, thus there was neither any occasion, nor any justification for him to hear the oral arguments of respondent no.3, on 30.5.2017. But the basis of recall was that as no oral opportunity to the counsel for respondent no.3 was afforded on 5.6.2017 and the alleged entry was cancelled as forged on 30.6.2007 followed by a departmental enquiry on 2.6.2007, the order dated 5.6.2017 was recalled.
Against the above backdrop, respondent no.2 under order dated 19.2.2018 was of the view that the order dated 5.6.2017 dismissing the application filed by respondent no.3 under section 33/39 was passed without hearing the counsel for respondent no.3, only on the basis of written arguments, which is liable to be set aside and an opportunity be given to respondent no.3 to contest the proceedings on merits.
A distinction must always be kept in mind between a review and a recall. Review is a creature of law unless specifically conferred under a statute or it is a case of fraud, same would not be maintainable, but a recall at the instance of party, who has not been heard would always be maintainable, which is not to be confused with review.
In so far, reliance upon a Full Bench decision of this Court in 1997 (31) AllLR 680, Shivraji Vs. Deputy Director of Consolidation Allahabad and judgment dated 31.1.2011 in Civil Misc. Writ Petition No. 33955 of 1997, Shivdhari Vs. The D.D.C, & others, this Court is of the view that there could be no quarrel with the proposition that in the absence of any power of review conferred under a statute, there could be no inherent power to review an order passed on merits except in a case of fraud, but the said decision would not be an impediment for respondent no.2 to pass the order of recall on 19.2.2018 as it was without hearing (oral) respondent no.3.
Considering the nature of the order impugned and its effect being that now both the parties shall be heard, before the disposal of the application in question, am not inclined to interfere under extra-ordinary jurisdiction.
The writ petition is dismissed.
It is made clear that this Court has not commented on the merits of the claim of the parties.
Order Date :- 30.3.2018 N.S.Rathour