Jhinka Devi and 3 Others v. State of U.P. Thru. Addl. Chief Secy., Revenue, Lucknow and 4 Others

Court No. - 6 Case :- WRIT - C No. - 8825 of 2023 Petitioner :- Jhinka Devi And 3 Others Respondent :- State Of U.P. Thru. Addl. Chief Secy., Revenue, Lucknow And 4 Others Counsel for Petitioner :- Mohammad Ehtesham Khan,Shashi Kant Mishra Counsel for Respondent :- C.S.C.,Meera Jain,Mohan Singh,Vaibhav Srivastava Hon'ble(Rajnish Kumar,J.)

¶1Heard Sri M.E Khan learned counsel for the petitioners, Sri Vaibhav Srivastava, and Ms.Meera Jain learned counsel for opposite party no.4, Sri Mohan Singh learned counsel for the respondent no.5 and learned Standing counsel appearing on behalf of the respondent nos.1 and 2.

¶2Learned counsel for the petitioners submits that the predecessor-in-interest of the petitioners had filed suit under Section 229B of U.P.Z.A & L.R Act 1950 with regard to Gata no.696 Minjumla area 3-11-19 situated in village Ranopali, Tehsil-Sadar District Ayodhya. The suit was decreed on

21.10.1988. In pursuance thereof, the name of the predecessor-in-interest of the petitioners was recorded. The petitioners have moved application for substitution, which is pending consideration, in which the objections have been filed by the respondent nos.3 and 4 and the same is listed today. In the meantime, respondent nos.4 and 5 filed a highly time barred appeal against the order dated 21.10.1988, on which the report was submitted by the Munsrim on 12.07.2023 that the appeal is within time and the case was fixed for admission and hearing on application for interim relief on 19.07.2023, thereafter, the case was adjourned on 19.07.2023, 26.07.2023 and 04.08.2023 on account of strike of lawyers. On 09.08.2023 the appeal was heard on admission and the case was fixed on 14.08.2023 for orders. On 14.08.2023, the Court observing that the appeal has been instituted against the order dated 21.10.1988, therefore, before admission, the lower court record is required to be perused for admission and on the point of limitation both the parties are required to be heard, directed to summon the lower court record and issued notice to the opposite parties fixing

11.09.2023 for hearing both the parties.

¶3He further submits that as per the margin of the order dated

14.08.2023 placed on record at page no.82, it is apparent that the requisition for record was sent on 17.08.2023 and the same was received on 21.08.2023. Thereafter, before the next date fixed i.e 11.09.2023, an application for early hearing and stay without any urgency was moved by the opposite party nos.4 and 5 on 25.08.2023, on which the opposite party no.2 preponed the date for the same date i.e 25.08.2023 and passed the impugned order dated 25.08.2023 condoning the delay without recording any reasons for delay of more than 35 years and also granted interim order without assigning any reasons and fixed

11.09.2023, which is now fixed for 30.10.2023. He further submits that the petitioners have moved an application for recall of the order dated 25.08.2023 on 04.10.2023 but the same has not been considered and the date has been fixed for 30.10.2023, therefore, the petitioners are constrained to approach this Court.

¶4Learned counsel for the respondent no. 4 submits that since the petitioners have moved an application for recall before the opposite party no.2, which is pending consideration and listed on 30.10.2023, therefore, this petition at this stage is not maintainable, however, on being enquired, he is not in a position to defend the impugned order, at this stage.

¶5Learned counsel for the petitioners, at this stage, fairly submits that the petition may be dismissed as not pressed with liberty to pursue his application for recall and prays that the respondent nos.3 and 4 may be directed to cooperate in disposal of the application on the date fixed with further liberty to approach this Court after disposal of the application, if occasion arises.

¶6Learned counsel for the opposite party no.4 has no objection to the request of learned counsel for the petitioners not pressing the petition to pursue his application before respondent no.2, however, he opposes prayer for liberty to approach this Court again. However, he submits that the counsel for the respondent nos.3 and 4 shall remain present on the date fixed and thereafter, before the respondent no.2 and assist the court in disposal of the application.

¶7Having considered submissions of learned counsel for the parties and I have perused the records.

¶8The opposite party nos.3 and 4 filed a highly time barred appeal against the order dated 21.10.1988 passed under Section 229B of U.P.Z.A & L.R. Act in a suit filed by predecessor-in-interest of the petitioners on 12.07.2023. The munsarim submitted a report dated 12.07.2023 that the appeal is within time, accordingly, the case was fixed on 19.07.2023 for hearing on appeal and application for interim relief. The report dated

12.07.2023 is extracted hereinbelow:- "12.07.2023 यह अपपील शपी एच०आर०एस० रराठठौर दराररा ्ቚस्ततुत। उ्ሹ अपपील गरा्ቨतरा एवव ममियराद अन्दर ्ቚस्ततुत ककी गई हहै अततः पतरावलपी वराद पत 12.07.2023 एवव स्थगन ्ቚरा० प० शपथ पत पर सतुनवराई हहेततु मदनरावक 19.07.2023 कको पहेश हको। "

¶9The case was adjourned for one or the other reason, thereafter, and the appeal was heard on admission on

09.08.2023 and 14.08.2023 was fixed for orders. By means of the order dated 14.08.2023, the opposite party no.2, considering the appeal against the order dated 21.10.1988 observed that before hearing on admission, the parties are required to be heard on limitation. Accordingly, directed to summon the lower court record and issued notice to the opposite parties. The order dated 14.08.2023 is extracted hereinbelow:- "पतरावलपी ्ቚस्ततुत हहई। ्ቚश्नगत अपपील सहरायक कलहेक्टर, ्ቚथमि शहेणपी/परगनराधधिकरारपी, सदर, फहैजराबराद दराररा पराररत मनणरय व मडिककी मदनरावमकत 21.10.1988 कहे मवरुद अपपीलराथቕኍगण शपी ठराकतुर मवजय रराघव जपी मवरराजमिरान मिनन्दर ररानकोपरालपी दराररा सरबरराहकरार अमिरजपीत उफर अजतुरन दरास चहेलरा मवरहेन््ቖ धसवह उफर मवजय दरास दराररा यकोधजत ककी गयपी हहै। अपपील ककी गरा्ቨतरा व स्थगन कहे मबन्दतु पर अपपीलराथቕኍगण कहे मवदरान अधधिव्ሹरा कहे तकरव कको सतुनरा गयरा तथरा इस न्यरायरालय ककी पतरावलपी पर उपलब्धि समिस्त तथ्योሱ व सराቌኚयोሱ करा सम्यकक रूप सहे परपी्ቌण एवव पररशपीलन मकयरा गयरा। चचवमक ्ቚश्नगत वराद अत्यधधिक पतुररानरा हहै तथरा अवर न्यरायरालय दराररा पराररत ्ቚश्नगत आदहेश मदनरावक 21.10.1988 कहे मवरुद यकोधजत ्ቚश्नगत यह अपपील गरा्ቨ मकयहे जरानहे कहे पचवर अपपील ककी गरा्ቨतरा व ममियराद कहे मबन्दतु पर अवर न्यरायरालय ककी पतरावलपी करा अवलकोकन मकयरा जरानरा व उभय प्ቌ कको सतुनरा जरानरा आवश्यक हहै। अततः अवर न्यरायरालय ककी पतरावलपी मिवगराई जराय तथरा मवप्ቌपीगण कको नकोमटस जरारपी हको। पतरावलपी वरास्तहे उभय प्ቌ ककी सतुनवराई हहेततु मदनरावक 11.09.2023 कको पहेश हको। मदनरावकतः 14.08.2023 (रराजहेन््ቖ ्ቚसराद मतपराठपी) अपर आयतु्ሹ (्ቚशरासन), अयकोध्यरा मिण्डिल, अयकोध्यरा।"

¶10In view of the above, though the opposite party no.2 considered that the appeal was delayed, therefore, it is required to be heard on limitation but does not inquired from the Munsarim as to how the report has been submitted that the appeal is within time, whereas the same should have been inquired. However, in pursuance of the order dated 14.08.2023, it appears that the records were summoned through requisition dated 17.08.2023, which were received on 21.08.2023. Thereafter, an application for early hearing on admission and stay was moved by the opposite party no.4 without showing any ground for urgency, which is extracted below:- "शपीमिन जपी, उपरको्ሹ सन्दमभरत अपपील ्ቚराथቕኍ/अपपीलरान्ट दराररा न्यरायरालय शपीमिरानक जपी कहे समि्ቌ अधिपीनस्थ न्यरायरालय दराररा पराररत मववरामदत आदहेश व मडिगपी कहे मवरुद ्ቚस्ततुत मकयरा गयरा हहै। अपपील मिम ्ቚस्ततुत स्थगन ्ቚराथरनरा पत मवचरारराधिपीन हहै, एवव धजसकहे मवरुद ककोई भपी कहैमबयट अथवरा आपधቈኌ मकसपी भपी प्ቌ दराररा नहीሻ ्ቚस्ततुत मकयरा गयरा हहै, परन्ततु अपपील मिम ्ቚस्ततुत स्थगन ्ቚराथरनरा पत ककी सतुनवराई पहेशपी मदनरावक 11/09/2023 मनयत हकोनहे कहे करारण सतुनवराई नहीሻ हको परा रहपी हहै। अपपील न्यरायरालय शपीमिरानक जपी कहे आदहेश सहे गराहय अवधिराररत कर अधिपीनस्थ न्यरायरालय पतरावलपी सवल्ሿ अपपील हहै, एवव धजसमिम पवजपीकरण आदहेश ककी मतधथ पर न्यरायरालय दराररा आदहेश पराररत मकयरा गयरा थरा, मक अधिपीनस्थ न्यरायरालय पतरावलपी तलबपी कहे उपररान्त स्थगन ्ቚराथरनरा पत करा मनस्तरारण मकयरा जरावहेगरा। अततः मिराननपीय न्यरायरालय सहे मवन्቞ मनवहेदन हहै, मक उपरको्ሹ अपपील मिम मनयत पहेशपी 11/09/2023 कको ्ቚपीपकोन करतहे हहए ्ቚराथቕኍ ककी शपी्ቈ सतुनवराई बरावत स्थगन ्ቚराथरनरा पत करा मनस्तरारण करनहे ककी ककपरा करम। मदनरावकतः 25/08/2023्ቚ राथቕኍ अमिरजपीत उफर अजतुरन दरास"

¶11Perusal of the aforesaid application dated 25.08.2023 indicates that there was no ground for early hearing for admission and stay, even than the opposite party no.2 considered the said and preponed the date for 25.08.2023 itself without recording any reason for preponment and verifying as to whether notices have been served on the respondents or not and if the notices have been served as to whether the copy of the application dated 25.08.2023 has been served on the respondents or not. He not only preponed the date for

25.08.2023 for hearing of the opposite party nos.3 and 4, but passed the order dated 25.08.2023 also condoning the delay of more than 35 years without assigning even a single reason and considering the grounds of delay and also granting an interim order of stay on implementation and effect of the order dated

21.10.1988, whereas the order was already implemented but without verifying it, recorded that the appellants i.e opposite party nos.3 and 4 in the present petition have a prima facie case and balance of convenience in their favour and if the stay order is not passed in their favour there is likelihood of irreparable loss to the appellants without assigning even a single reason.

¶12This Court failed to comprehend as to whether such an order could have been passed by the authority/judicial authority exercising the revisional jurisdiction, without assigning any single reason by preponing the date, condoning the delay of more than 35 years and granting the stay order, except if the authority does not know the law or for the (extraneous) reasons better known to him. It has also been informed by some of the counsels that the authority concerned is in habit of passing such orders and in the circumstances for which he had also submitted unconditional apology before this Court earlier. Therefore, the Government has to look into it and take appropriate steps/action in accordance with law.

¶13In view of the above and considering the over all facts and circumstances of the case, this Court is of the view that the liberty cannot be denied to the petitioners to move to this Court again, in case occasion arises, after disposal of application for recall filed by the petitioner.

¶14With the aforesaid, the petition is dismissed as not pressed with liberty as prayed for.

¶15Let a copy of this order be sent to the Chief Secretary, Government of U.P., Civil Secretariat, Lucknow by the Senior Registrar of this Court forthwith for appropriate steps/action in the matter in accordance with law expeditiously and inform to the Senior Registrar of this Court. (Rajnish Kumar,J.) Order Date :- 13.10.2023 Harshita High Court of Judicature at Allahabad, Lucknow Bench