# Smt. Ghasita v. Board of Revenue Lko. & Ors

- **Citation:** (2024) 8 ILRA 506
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-07
- **Case number:** Writ- B No. 643 of 2023
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ghasita-v-board-of-revenue-lko-ors-52386
- **Pages:** 7

## Headnote

Civil Law - Constitution of India, 1950 -
Article 226, - Limitation Act, 1963 -
Section - 5, - U. P. Land Revenue Act, 1901
- Section - 54, - UP Revenue Court Manual
- Regulation - 489 - Writ Petition - impugned
order passed by the Board of Revenue -
proceeding u/s 54 of LR Act, initiated by the
petitioner - St. contested the same - when St.
delaying the proceedings, respondent no. 3
allowed the application - St. authorities filed a
recall application along with delay condonation
Application - recalled was allowed along with
interim measure - Revision - dismissed - court
finds that, by means of impugned order, the
operation of the principal order has been stayed
at best if the intention was to protect the
property it could have been protected but was
not appropriate to stay the operation of the
order itself - this was not considered by the
Board of revenue - held, Application of recall
was time barred and the interim order could not
have been granted before condoning the delay
as it affects the right of the parties contesting
the proceedings - hence, the Board of Revenue
has not exercised its jurisdiction as per law -
consequently, order impugned is set aside - writ
petition is allowed - petitioner directed to
contest the proceedings before the respondent
no. 3 where he shall be permitted to file his
objections to the recall application as well as to
the application under section 5 of the Limitation
Act - directions issued accordingly. (Para - 24,
25)

Writ Petition is allowed. (E-11)

List of Cases cited:

## Text

506 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence to hold the sale deed of 1942 as
benami, the first appellate court has erred
in reversing the decree drawn by the trial
court. Consequently, the rights in the
property of Dwarika Prasad would devolve
upon his natural successors, who are the
appellants before this Court.

18. In view of the above, the
second appeal succeeds and is allowed.

19. The impugned judgment dated
06.04.1979 passed by the IV Additional
District Judge, Bijnor in Civil Appeal
No.363 of 1976 and the decree drawn on
that basis is set aside.

20. Office is directed to send back the
record of the courts below to District
Judge, Bijnor for being preserved in
accordance with General Rules (Civil).
----------
(2024) 8 ILRA 506
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.08.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ- B No. 643 of 2023

Smt. Ghasita ...Petitioner
Versus
Board of Revenue Lko. & Ors.
 ...Respondents

Counsel for the Petitioner:
Pramod Kumar Yadav

Counsel for the Respondents:
C.S.C., Dilip Kumar Pandey

Civil Law - Constitution of India, 1950 -
Article 226, - Limitation Act, 1963 -
Section - 5, - U. P. Land Revenue Act, 1901
- Section - 54, - UP Revenue Court Manual
- Regulation - 489 - Writ Petition - impugned
order passed by the Board of Revenue -
proceeding u/s 54 of LR Act, initiated by the
petitioner - St. contested the same - when St.
delaying the proceedings, respondent no. 3
allowed the application - St. authorities filed a
recall application along with delay condonation
Application - recalled was allowed along with
interim measure - Revision - dismissed - court
finds that, by means of impugned order, the
operation of the principal order has been stayed
at best if the intention was to protect the
property it could have been protected but was
not appropriate to stay the operation of the
order itself - this was not considered by the
Board of revenue - held, Application of recall
was time barred and the interim order could not
have been granted before condoning the delay
as it affects the right of the parties contesting
the proceedings - hence, the Board of Revenue
has not exercised its jurisdiction as per law -
consequently, order impugned is set aside - writ
petition is allowed - petitioner directed to
contest the proceedings before the respondent
no. 3 where he shall be permitted to file his
objections to the recall application as well as to
the application under section 5 of the Limitation
Act - directions issued accordingly. (Para - 24,
25)

Writ Petition is allowed. (E-11)

List of Cases cited:

1. Asit Kumar Kar Vs St. of W. B. - 2009 vol. 2
SCC 703,

2. Vshnu Agarwal Vs St. of U.P. (2011 vol. 14
SCC 813),

3.
Ram Prakash Vs Deputy Director of
Consolidation & ors. (2022 SCC online All 107),

4. Bank of Maharashtra Vs Race Shipping &
Transport Co. Pvt. Ltd. & anr. (1995 3 SCC 257).

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard learned counsel for the
petitioner, Shri Hemant Pandey, learned
standing counsel for the State-respondents
8 All. Smt. Ghasita Vs. Board of Revenue Lko.& Ors.
507
and Shri Dilip Kumar Pandey, learned
counsel appearing for Gaon Sabha.

2. Under challenge is the order dated
23.06.2023 passed by the Board of
Revenue whereby the revision preferred by
the petitioner was dismissed upholding the
order dated 04.12.2021 passed by the
respondent no.3, as a consequence, in recall
proceedings at the behest of State the
principal order dated 31.07.2021 passed in
favour of the petitioner has been stayed.

3. Submission of the learned counsel
for the petitioner is that the proceedings
were initiated by the petitioner under
Section 54 of the U.P. Land Revenue Act
1901. The said proceedings were contested
by the State who had also filed their written
objections and a copy thereof has been
brought on record as annexure no.3. It is
also submitted that the respondents were
delaying the proceedings and as such the
respondent no.3 by means of order dated
31.07.2021 allowed the application of the
petitioner.

4. The State Authorities being
aggrieved preferred an application for
recall on 04.12.2021 which was also
accompanied by an application under
Section 5 of the Limitation Act, 1963. On
the said application, the respondent no.3
on the very same date i.e. 04.12.2021
entertained the application for recall and
also as an interim measure passed an
order
dated 04.12.2021
staying
the
operation of the order dated 31.07.2021.
The petitioner being aggrieved filed a
revision before the Board of Revenue
which has been dismissed noticing the
fact that since the recall application is
already seized by the respondent no.3, the
petitioner would have ample opportunity
to raise objection and contest the
proceedings,
hence
it
declined
to
interfere.

5. Submission of the learned
counsel for the petitioner is two fold:-(i)
It is urged that once the respondents had
already filed their written objections and
later it did not participate to contest the
proceedings, in such a situation, the
orders have been passed on merits and
therefore neither an application for recall
or review would be maintainable and
consequently
the
Authority
had
no
jurisdiction to pass the order dated
04.12.2021. (ii) It is further urged that
even otherwise if at all it may be
considered that the application for recall
could have been entertained but the fact
remains that it was accompanied by an
application under Section 5 of the
Limitation Act and before condoning the
delay, the Authority did not possess the
jurisdiction to pass any order staying the
operation of the principal orders dated
31.07.2021 which in affect amounts to
entering into merits of the matter and
allowing the petition by an interim order
and thus for both the reasons aforesaid,
the impugned order was bad.

6. Shri Hemant Pandey, learned
counsel for the State has submitted that
even though the State may have filed his
objection but the fact remains that on the
date of passing of the order dated
31.07.2021, the State was not heard and to
that extent the order is ex parte which
permits the State to move an application for
recall.

7. He has further referred to
Regulation 489 as contained in the U.P.
Revenue Court Manual and has drawn the
attention of the Court that the power to
grant ad interim ex parte order vests with
508 INDIAN LAW REPORTS ALLAHABAD SERIES
the authority and in such a case where the
property of the State was at stake hence it
was justified for the authority to have
passed an order and the same cannot be
faulted for want of jurisdiction.

8. It has also been urged that the
matter is already pending before the
authority concerned and it will be open for
the petitioner to contest the case on merits
and in any case since the petitioner has
approached this Court against the order
dated
04.12.2021,
in
exercise
of
jurisdiction under Article 226 of the
Constitution of India, such discretionary
orders which do not impact the final rights
of the parties may not be interfered with.
Hence for the aforesaid reasons the petition
is liable to fail.

9. The Court has heard the learned
counsel for the parties and also perused the
material on record.

10. In pursuance of the order dated
25.07.2023, the State was required to seek
instructions as to whether they have
participated in any proceedings and filed
their objections especially as in the
application for recall, the stand of the State
appears to be that they were not properly
served and the orders have been passed on
merits behind the back of the State. This
was contested by the petitioner as he had
brought on record the copy of the
objections filed by State in the proceedings
as annexure no.3.

11. In this regard, as per written
instructions, it could not be disputed that
the objections were filed by the respondent
State and this fact has also been taken note
of by the respondent no.3 while passing the
order dated 31.07.2021.

12. Taking note of the aforesaid,
this Court finds that even though if the
objections were on record but the fact
which could not be disputed by the counsel
for the petitioner is that on the given date
when the principal order dated 31.07.2021
was passed, the State was not heard and to
that extent the order naturally, having been
passed in absence of the State Authorities,
would be ex parte.

13. In so far as the application for
recall is concerned, it cannot be said that
the same was not maintainable; inasmuch
as it is not an application for review since
the law for entertaining an application for
review is quite different and unless and
until such powers of review are conferred
on the authority by the statute itself, the
said powers cannot be exercised by the
authority.

14. However, in case of recall the
authority does not enter into the merits and
merely recalls the order, plainly, for the
reason that the aggrieved party was not
heard as it is against the principles of
natural justice. The distinction between
review and recall has been considered by
the Apex Court in the case of Asit Kumar
Kar Vs. State of West Bengal (2009) 2
SCC 703 and the relevant portion reads as
under:-

"6. There is a distinction between
a petition under Article 32, a review
petition and a recall petition. While in a
review petition the Court considers on
merits where there is an error apparent on
the face of the record, in a recall petition
the Court does not go into the merits but
simply recalls an order which was passed
without giving an opportunity of hearing to
an affected party.
8 All. Smt. Ghasita Vs. Board of Revenue Lko.& Ors.
509

7. We are treating this petition
under Article 32 as a recall petition
because the order passed in the decision in
All Bengal Excise Licensees' Assn. V.
Raghbendra
Singh
cancelling
certain
licences was passed without giving an
opportunity of hearing to the persons who
had been granted licences. In these
circumstances, we recall the directions in
para 40 of the aforesaid judgment.
However, if anybody has a grievance
against the grant of licences or in the
policy of the State Government, he will be
at liberty to challenge it in appropriate
proceedings before the appropriate court.
The writ petitions are disposed of with
these directions."

15.

This
has
been
followed
subsequently by the Apex Court in Vishnu
Agarwal Vs. State of U.P. (2011) 14 SCC
813.

16. In light of the aforesaid, it is clear
that in so far as the order dated 31.07.2021
is concerned, the same was ex parte and an
application for recall was apparently
maintainable, hence the first submission of
the learned counsel for the petitioner does
not find favour with this Count.

17. Now the question arises as to
whether the authority could have passed an
order staying the operation of the order
dated 31.07.2021. If the provisions of
Regulation 489 of the U.P. Revenue Court
Manual is seen, it does not bar the exercise
of power for grant of interim order but at
the same time what is noticeable is that it
only relates to proceedings which are in
order i.e. does not suffer from any
disability such as being beyond limitation.
Regulation 489 of the U.P. Revenue Court
Manual reads as under:-

489. Ad interim ex parte order-
(1) The court may, on the application of
any party to a suit, appeal, revision, review
or other proceeding and on such terms as it
thinks fit, make an order for preservation of
any land which is the subject matter of the
suit, appeal, revision, review or other
proceeding.

(2) The court shall in all cases,
except where it appears that the object of
making the order for preservation would be
defeated by the delay, before making the
order, direct notice of the application for
the same to be given to the opposite party:

Provided
that
where
it
is
proposed to make an order without giving
notice of the application to the opposite
party, the court shall record the reasons for
its opinion that the object of making the
order would be defeated by delay, and
require the applicant-

(a) to deliver to the opposite
party or to send to him by registered
post/speed post immediately after the order
has been made, a copy of the application
for the order together with-
 (i) a copy of the affidavit filed In
support of the application;

(ii) a copy of the plaint, memo of
appeal,
memo
of
revision
or other
application on which the proceeding has
been initiated; and
 (iii) copies of documents on
which the applicant relies; and
 (b) to file, on the date on which
the order is made or on the working day
immediately following that day, an affidavit
stating that the copies aforesaid have been
so delivered or sent.
(3)
If
the
condition
mentioned in clause (b) of sub-para
(2) of this para is complied with,
the interlocutory order shall be
vacated automatically. Not
510 INDIAN LAW REPORTS ALLAHABAD SERIES
 (4) Where an order has been
made under this para without giving notice
to the opposite party, the court shall make
an
endeavour
to
finally
dispose
of
application within thirty days from the date
on which the order was made and where it
is unable so to do it shall record its reasons
for such inability.

18. Now if any proceedings are time
barred and are accompanied by an
application
under
Section
5
of
the
Limitation Act in such a case the said
Regulation cannot be pressed into service
to suggest that even without issuing notice
to the other party in whose favour certain
rights have been crystallized because of an
order which has not been assailed in time
as
prescribed
by
law
and
without
condoning the delay the interim order could
be passed.

19. It can be gainfully stated that if
any suit, appeal, revision, review or other
proceedings are filed beyond the prescribed
period of limitation, legally speaking, the
said proceedings are still born. Only once
the delay is condoned only then the
proceedings
are
resurrected
to
be
considered on merits.

20. In this regard, a Division Bench
decision of this Court where the issue of
limitation vis a vis the right to enter into the
merits of a proceeding before condoning
the delay was considered in Ram Prakash
Vs. Deputy Director of Consolidation and
others 2022 SCC OnLine All 107. The
relevant paragraph 20 reads as under:-

"20 If any statute provides certain
period for filing of appeal, an appeal filed
beyond the time limit will certainly be not
entertained. If the provisions of 1963 Act
are applicable and party is entitled to seek
condonation of delay in filing appeal, an
application has to be filed specifying the
grounds on which delay in filing the appeal
is sought to be condoned. It is only after
that the application is allowed, the appeal
can be entertained and heard on merits.
Before that the appeal cannot be taken up
and considered on merits."

21. In the instant case, even before the
notice on Section 5 of the Limitation Act
was issued, the interim order has been
passed by the Court. Even though it has
been urged by the counsel for the State that
merely the land of the State is protected but
from the perusal of the order dated
04.12.2021 which is on record as annexure
no.9 it would indicate that neither the
authority has recorded any reasons for
passing the order and moreover no finding
has been recorded that in case the order of
interim protection if not granted ex parte it
would defeat the ends of justice and it was
necessary in the given reasons for passing
an ex parte order and without recording
such reasons yet the operation of the order
dated 31.07.2021 had been stayed.

22. At this stage it will be worthwhile to
recall that even Regulation 489 of the U.P.
Revenue Court Manual also envisages the
recording of reasons before passing an
interim order ex parte which has not been
followed hence the agrument of the State
based on Regulation 489 of the U.P. Revenue
Court Manual cannot be sustained. Thus the
order dated 04.12.2021 was bad as it was
passed while the application of Section 5 of
the Limitation Act was pending and no notice
was issued thereon prior to passing of the
order dated 04.12.2021 and even otherwise
the order was bad for want of reasons.

23. The said order dated 04.12.2021 is
also bad for another reason as by an interim
8 All. Smt. Ghasita Vs. Board of Revenue Lko.& Ors.
511
order the final relief of recall has been
indirectly granted. It is also now well
settled that by an interim measure, no such
order can be passed which has the effect of
allowing the main relief (see Bank of
Maharashtra
Vs.
Race
Shipping
&
Transport Co. Pvt. Ltd. and another,
(1995)
3
SCC
257).
The
relevant
paragraphs reads as under:-

 "9. Since the writ petition is still
pending in the High Court and the question
of maintainability of the writ petition has
yet to be considered we do not propose to
go into the said question. All that we wish
to say at this stage is that the objections
that have been raised by the appellantBank against the maintainability of the writ
petition are not such that they may be
disregarded as lacking in substance. This is
a factor which has a bearing on the
exercise of discretion by the court while
passing the interim order in the writ
petition.
 10. By the interim order the High
Court has directed the appellant-Bank to
credit a sum of Rs.95,000 in the Current
Account No.318 of Respondent 1. The High
Court
has
recorded
that
respondent
through their counsel had given an
undertaking to bring back the amount if the
Court so desires. The said interim order, in
substance, grants the relief which the
respondent would have been given at the
final stage in the event of their writ petition
being allowed by the High Court.

11. Time and again this Court
has deprecated the practice of granting
interim orders which practically give the
principal relief sought in the petitioner for
no better reason than that a prima facie
case has been made out, without being
concerned
about
the
balance
of
convenience, the public interest and a host
of other considerations."

24. There is another way to look at
the issue since by means of order dated
04.12.2021, the operation of the principal
order has been stayed at best if the
intention was to protect the property it
could have been protected but it was not
appropriate to stay the operation of the
order itself. This has not been considered
by the Board of Revenue while passing the
order even though the petitioner would
have ample opportunity to contest the
matter before the respondent no.3 but
ignoring the aspect as discussed above
relating to the fact that the application for
recall was time barred and the interim order
could not have been granted before
condoning the delay as it affects the rights
of the parties contesting the proceeding
hence, the Board of Revenue has not
exercised its jurisdiction as per law.

25. In the aforesaid facts and
circumstances where the matter is already
seized before the respondent no.3 and the
application for condonation of delay
alongwith the recall application is pending,
this Court taking a holistic view and
protecting the rights of the respective
parties sets aside the order passed by the
Board of Revenue and direct the petitioner
to contest the proceedings before the
respondent no.3
where
he
shall
be
permitted to file his objections to the recall
application as well as to the application
under Section 5 of the Limitation Act,
1963. The order dated 04.12.2021 whereby
the operation of the order has been stayed
is set aside. However, the parties shall
maintain status quo and none of the parties
shall change the nature or create any third
party rights till the decision on the
application
under
Section
5
of
the
Limitation Act. The petitioner shall cooperate in early hearing of the proceedings
and so will the State and the court shall
512 INDIAN LAW REPORTS ALLAHABAD SERIES
endeavour not only decide the application
under Section 5 of the Limitation Act, 1963
first thereafter take up the application for
recall. In case if it finds favour in
condoning the delay and the recall and if
the proceedings are restored thereafter the
proceedings itself may be decided after
affording full opportunity of hearing to the
parties
but
without
granting
any
unnecessary adjournments on merits so that
the proceedings can be culminated in a
final order within a period of six months
from the date, a copy of this order is placed
before the authority concerned.

26. It is made clear that the Court
has only touched the decision making
process upon which the proceedings
have been challenged, however, no
expression of opinion on merits have
been given by the Court on the
respective rights and claims of the
parties which shall be considered by the
court concerned.

27. With the aforesaid, the petition
is allowed in the aforesaid terms. Costs are
made easy.
----------
(2024) 8 ILRA 512
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2024

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ - C No. 5577 of 2015
with other connected cases

Kisan Sahkari Chini Mills Ltd., Bareilly
 ...Petitioner
Versus
Presiding Officer, Labour Court, Bareilly &
Ors. ...Respondents
Counsel for the Petitioner:
Sri Vrindavan Mishra, Sri Satyam Singh

Counsel for the Respondents:
C.S.C., Sri Gopal Narayan

A. Labour law - UP Industrial Disputes Act,
1947 - Sections 3 & 4-K - Standing Orders -
UP Cooperative Society Act, 1965 - S. 70 -
Workmen
of
Cooperative
Society
-
Termination of services - Remedy - Labour
Court, how far have jurisdiction - Held, S.
70 of the Cooperative Act, 1965 excludes
disputes regarding disciplinary action to be
taken against the paid servant. Nonetheless
the workmen are not remediless as once the
service conditions does not fall under the
Cooperative Act, 1965 then in view of the
Standing Orders issued from time to time
the workmen have a remedy to approach
the Labour Courts having jurisdiction over
the matter. (Para 24)

Writ disposed of. (E-1)

List of Cases cited:

1. Ghaziabad Zila Sahkari Bank Ltd. Vs
Additional Commissioner; (2007) 11 SCC 756

2. Ram Shankar Vaish Vs Presiding Officer,
Labour Court; 2011 (131) FLR 391

3. Brij Bhushan Singh & anr. Vs St. of U.P. &
ors.; 2009(2) ADJ 314

4. Writ C No. 23765 of 2005; Cooperative Cane
Development Union Ltd. Vs St. of U.P. & ors.
decided on 18.04.2011

5. Writ C No. 11386 of 1993; Farrukhabad
Dugdh Utpadak Sahkari Sangh Ltd. Vs Presiding
Officer, Labour Court, Lko. & ors. decided on
04.08.2011

6. Writ A 42227 of 1992 Sunder Lal Vs The
L.S.R. Sahkari Samiti Ltd. & ors. decided on
29.11.2011

7. Writ C No. 11395 of 2017; Secretary Sadhan
Sahakari Samiti Ltd. Vs Presiding Officer, Labour
Court, Faizabad & anr. decided on 04.04.2022