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2015 DIGILAW 2283 (ALL)

Rafat Ullah Khan v. D. D. C. , Ghaziabad

2015-08-07

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. 1. This is a recall application filed by Sri Masi Ullah Khan son of late Azmat Ullah Khan respondent No. 4/2 for recall of the order dated 16.2.2012 passed by this Court. I have heard Sri Ateeq Ahmad Khan learned Counsel for the applicant who has filed the recall application and Sri Ravi Agarwal who appears for the petitioners in the writ petition. 2. The facts of the case briefly stated are that the petition arises out of an objection under section 9-A(2) of the U.P. Consolidation of Holdings Act. The dispute between the parties pertains to land of Khata No. 15 situated in Village Bahadurgarh, Pargana Pooth, Tehsil Garh, District Ghaziabad. This writ petition was decided finally by means of the judgment and order dated 23.5.2006, the operative portion whereof is quoted here under "Accordingly writ petition is dismissed as withdrawn in terms of the application dated 27.2.1997. However it is directed that within three months from today total amount of Rs. 1,50,000/- shall be paid by respondent No. 4 to the petitioner which will consist of Rs.1,20,000/- agreed to be paid by respondent No. 4 in 1997 and interest thereon. In case if within three months from today the aforesaid amount of Rs. 1,50,000/- is not paid to the petitioner through draft drawn in his name then this order shall stand vacated and writ petition shall stand restored to its original number." 3. It appears that another order was passed on 22.12.2006 which is also extracted below "Accordingly respondent No. 4 is absolved of his liability to pay Rs. 1,50,000/- to the petitioner until petitioner makes an application in the regard in this writ petition. Respondent No. 4 may keep the aforesaid amount of Rs. 1,50,000/- in some interest bearing account so that if subsequently application for acceptance of this amount is filed some reasonable interest may also be considered to be paid to the petitioner. 4. Thereafter, an application No. 170464 of 2006 dated 23.8.2006 was filed by the respondent. Another application was filed by the petitioners through Sri S.A. Shah advocate alleging therein that the respondent No. 4 had not paid the amount of Rs. 1,50,000/- to the petitioner as ordered. Both the aforesaid applications were heard and an order was passed on 5.7.2007 directing the respondent No. 4 to pay the amount of Rs. Another application was filed by the petitioners through Sri S.A. Shah advocate alleging therein that the respondent No. 4 had not paid the amount of Rs. 1,50,000/- to the petitioner as ordered. Both the aforesaid applications were heard and an order was passed on 5.7.2007 directing the respondent No. 4 to pay the amount of Rs. 1,55,000/- and it was further directed that the said amount be deposited before the Deputy Director of Consolidation/Collector, Ghaziabad within six weeks from the date of the order. 5. Thereafter, an order was passed on 16.2.2012 which order reads as follows "The amount of Rs. 1.5 lacs directed to be deposited through my judgment and order dated 23.5.2006 has not been deposited. Time to deposit the same was also extended still the deposit was not made. List revised. Shri B.D. Tripathi, learned Counsel for the respondent is not present. Sri Ravi Agarwal, learned Counsel for the legal representatives of the petitioner states that not a single penny has been paid to the petitioner. Accordingly, pursuant to order dated 23.5.2006 writ petition stands revived/restored. List the writ petition before the appropriate Court in the next cause list. The case shall not be treated as tied up or part heard to me." 6. It is this order which is sought to be recalled by means of the instant application. 7. Learned Counsel for the applicant submits that the amount required to be deposited with the Deputy Director of Consolidation was duly deposited by means of a bank draft bearing No. 590996 dated 14.8.2007 drawn on Bahadurgarh Branch Punjab National Bank in the name of Deputy Director of Consolidation, Ghaziabad. This draft was filed along with an application on 16.8.2007, along with certified copy of the order dated 5.7.2007. Subsequently, the District Magistrate, Ghaziabad on 18.9.2009 got a draft of Rs. 1,55,000/- prepared from the State Bank of India bearing No. 023546 in the name of the petitioner. This draft was forwarded to the office of the then Deputy "Director of Consolidation along with letter dated 25.9.2007 with a direction to deliver the draft to the person concerned after verification of his identity. 8. On the basis of the aforesaid mentioned facts it has been submitted that the applicants had complied with the directions of this Court. This draft was forwarded to the office of the then Deputy "Director of Consolidation along with letter dated 25.9.2007 with a direction to deliver the draft to the person concerned after verification of his identity. 8. On the basis of the aforesaid mentioned facts it has been submitted that the applicants had complied with the directions of this Court. The petitioner and his heirs were fully aware of such compliance, yet a false and incorrect impression was given to the Court on its basis the order dated 16.2.2012 was obtained on the ground that the orders of this Court had not been complied with. 9. In the affidavit filed in support of the recall application it has also been averred that the applications filed through Sri Ravi Agarwal on behalf of the petitioners, were never served upon the applicant-respondents and therefore, the were not aware of the contents of the application filed subsequent to the order dated 5.7.2007. 10. It has further been submitted that this Court by another order dated 9.5.2008 had directed the legal representatives of the petitioner (since deceased) for opening an account in Allahabad in some Bank and to give the number of the account through an application so that the respondents could be directed to deposit the money in the said account. The relevant portion of the order dated 9.5.2008 is quoted below "In this case twice or thrice learned Counsel made complainant that the petitioner was not accepting the amount which was to be paid by the respondents to the petitioner under order dated 23.5.2006. Now learned Counsel for the petitioners (or his legal representatives) state that they are ready to accept the amount. It is quite possible that legal representative of the petitioner may again refuse to accept the amount causing unnecessary delay and wastage of Courts time. If legal representatives of petitioner are interested in receiving the amount then they must open an account in Allahabad in some Bank and give the number of the account through an application so that the respondent deposit the amount in the account." 11. Learned Counsel for the applicant submits that the legal representatives of the petitioner have failed to comply with this order. They have not filed an application providing the account number of any Bank account in Allahabad. Learned Counsel for the applicant submits that the legal representatives of the petitioner have failed to comply with this order. They have not filed an application providing the account number of any Bank account in Allahabad. On the strength of the facts noted above it has been prayed that the order dated 16.2.2012 whereby the writ petition was ordered to be restored be recalled as it had been passed upon a misrepresentation of the correct facts. 12. Sri Ateeq Ahmad Khan has also submitted that the petitioners filed an application dated 15.4.2008 to amend the writ petition. By means of this amendment, the relief for quashing the order of the Consolidation Officer dated 6.2.2008 was sought. This relief was sought because after the writ petition stood disposed of in terms of the order of 2006, the Consolidation Officer had implemented the impugned order in the revenue records. 13. Against this order of the Consolidation Officer implementing the impugned order in the revenue records, the petitioners preferred an appeal. In this appeal an order was passed on 17.12.2008 referring to the orders of this Court regarding the payment of Rs. 1.5 lakhs and its deposit etc. Since this order was passed in an appeal filed by the petitioners themselves, they were aware about the deposits that had been made in 2008 itself and yet in 2012 an impression was given to the Court that the applicants (respondents in the writ petition) had failed to comply with the orders regarding payment of Rs. 1.5 lakhs to the petitioners. 14. Sri Ravi Agarwal appearing for the heirs of the deceased-petitioner, states that under the orders of this Court, the payment was required to be made by the respondent No. 4 who is since dead. He is survived by several heirs but the recall application has been filed by only one of the heirs. It is therefore, clear that the other heirs desire that the writ petition be decided on its merits. 15. The second submission made is that the delay of about nine years in filing the recall application has not been adequately explained. 16. The next submission made is that the draft was made out in the name of a dead person. It is therefore, clear that the other heirs desire that the writ petition be decided on its merits. 15. The second submission made is that the delay of about nine years in filing the recall application has not been adequately explained. 16. The next submission made is that the draft was made out in the name of a dead person. It has lastly been submitted that there was no material available on record on 16.2.2012 to show that the earlier orders passed by the Court had been complied with and therefore, the Court was justified in restoring the writ petition to its original number. 17. I have considered the submissions made by learned Counsel for the parties and have perused the record. 18. From the submissions made by learned Counsel for the applicant which are in consonance with the averments made in the affidavit filed along with the recall application and the documents appended there to, it is clear that the applicant had made substantial compliance of the directions that were issued by this Court as regards payment to the petitioner at the time the writ petition was dismissed as withdrawn in the year 2006. Moreover, it is writ large on the face of the record that the heirs of the petitioner have been consistently avoiding accepting the amount that was required to be paid over to them. They were aware that the deposit had been made, as directed by this Court and yet the order dated 16.2.2012 was obtained on a statement that respondent had failed to comply with the directions regarding payment to the petitioner. It is also clear from the record that the factum of deposit was known to the petitioners in 2008 from the order that was passed in the appeal filed by them. 19. Most importantly a categorical statement of Sri S.A. Shah Counsel appearing for the petitioner is recorded in the order dated 9.5.2008 that the petitioner was prepared to accept the amount. In view of this categorical statement, it was not open for the heirs of the petitioners to resile from the order passed at the instance of their predecessor in interest and to refuse to accept the amount payable to them and on its basis, claim for restoration of the writ petition and for its decision on merits. 20. In view of this categorical statement, it was not open for the heirs of the petitioners to resile from the order passed at the instance of their predecessor in interest and to refuse to accept the amount payable to them and on its basis, claim for restoration of the writ petition and for its decision on merits. 20. In view of the above discussion, this Court is constrained to hold that the conduct of the heirs of the deceased petitioner is not bona fide. They obtained the order dated 16.2.2012 by concealment of material facts and by giving an erroneous impression to the Court. 21. In such view of the matter, the order dated 16.2.2012 is liable to be and is hereby recalled. 22. As a consequence there of, the writ petition stands disposed of in terms of the order dated 23.5.2006 and the subsequent orders dated 5.7.2007 and 9.5.2008. 23. However, since the conduct of the heirs of the deceased petitioner has not been found to be bona fide, it appears fit and proper that costs be imposed upon them for their misrepresentation and concealment of relevant and correct facts which I access as Rs. 15,000/-. This amount must be paid to the applicant within a period of two months from the date of this order. The recall application is accordingly allowed.