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2013 DIGILAW 420 (ALL)

ASHOK v. BOARD OF REVENUE U. P.

2013-02-05

RAN VIJAI SINGH

body2013
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri R.K. Pandey, holding brief of Sri Manoj Kumar Srivastava, learned counsel for the petitioner, Sri Deepak Kumar Srivastava, learned Standing Counsel and learned counsel for the Gaon Sabha, for the respondents. 2. With the consent of the learned counsel for the parties, the writ petition is taken up for final disposal. 3. Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the orders dated 17.2.2011 and 16.5.2011 passed by the learned Member, Board of Revenue in second appeal No. 8 of 2005-06 (Ashok v. Smt. Chandra Devi and others). vide order dated 17.2.2011, the application, as alleged, filed by the petitioners, for withdrawal of the second appeal has been allowed, whereas by the subsequent order dated 16.5.2011, the petitioners’ application for recall of the order dated 17.2.2011 has been rejected. 4. It appears that against the judgment and decree dated 9.6.2000 passed by Additional Commissioner (Judicial), Bareilly Division, Bareilly in appeal No. 148/81/2001 (Smt. Chandra Devi v. Ashok and others), the aforesaid second appeal No. 8 of 2005-06 was filed. The said appeal was admitted and an order for maintaining status quo was passed on 14.2.2006. The appeal was filed by one Sri V.C. Srivastava, learned counsel for the appellant. It appears, later on an application was filed on behalf of the appellant through Sri Kallan Tiwari, learned counsel, for withdrawal of the aforesaid appeal on 30.12.2010. The said application was allowed, after hearing Sri Kallan Tiwari, learned counsel for the appellant and Sri Deepak Srivastava, learned counsel for the respondent. The petitioner herein/the appellant has filed an application for recall of the aforesaid order on the ground that he has not instructed Sri Kallan Tiwari to file withdrawal application and while filing the same, the papers signed by the petitioners were misutilized by the counsel. It was also stated that the applicant is a semi-illiterate person and he can anyhow makes his initials. He cannot even read the contents. Taking advantage of this, the application has been filed for withdrawal of the appeal, therefore, order passed thereon be recalled. 5. It was also stated that the applicant is a semi-illiterate person and he can anyhow makes his initials. He cannot even read the contents. Taking advantage of this, the application has been filed for withdrawal of the appeal, therefore, order passed thereon be recalled. 5. A supplementary affidavit was also filed in support of the restoration application, stating therein that after the order dated 17.2.2011, dismissing the appeal as withdrawn, most of the land was transferred through registered sale-deed on 14.3.2011 and when the applicant came to know about this fact, he filed the recall application. The learned Member, Board of Revenue, without addressing himself on the point as to whether the second counsel, Sri Kallan Tiwari, has obtained permission from the earlier counsel Sri V.C. Srivastava for filing the application, has allowed the same without considering the contents of the application sworn on affidavit. 6. I am of the opinion that once the party has approached the Court that he has not authorized the counsel to withdraw the appeal, it was incumbent upon the Court to address itself on the truthfulness of the contents of the affidavit before passing the order on the recall application. Here in this case, the appeal was admitted and an order for maintaining status quo was operating, therefore, there was hardly any occasion for the appellant to get dismissed his appeal and learned Member, Board of Revenue, without addressing himself on this point, has rejected the application of the petitioners for recall of the order dated 17.2.2011. 7. It is observed by the Hon’ble Apex Court in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, JT 1987 (1) SC 537 : 1987 (2) SCR 387 , that the judiciary is respected not on account of its power to legalize injustice on technical grounds, but because it is capable of removing injustice and is expected to do so. In this case when the petitioner has come up before the Board of Revenue that he had not instructed the counsel to file any application for withdrawal of the appeal and the counsel has misused his position, it was incumbent upon the learned Member, Board of Revenue to address himself on these points instead of rejecting the restoration application. 8. I am of the considered opinion that the learned Member, Board of Revenue has erred in rejecting the petitioner’s restoration application. 8. I am of the considered opinion that the learned Member, Board of Revenue has erred in rejecting the petitioner’s restoration application. In view of the foregoing discussions, the writ petition succeeds and is allowed. The orders dated 17.2.2011 and 16.5.2011 are hereby quashed. The second appeal is restored to its original number. The learned Member, Board of Revenue is directed to decide the second appeal itself on merit in accordance with law after hearing all concerned expeditiously. 9. Till the second appeal is decided, no third party right shall be created with respect to the remaining land. Further, nature of the land shall also not be changed in the meantime. ——————