# Tarkeshwar & Ors v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 505
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-25
- **Case number:** Writ-C No. 13852 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tarkeshwar-ors-v-state-of-u-p-ors-50834
- **Pages:** 12

## Headnote

Civil Law - U.P. Revenue Code, 2006 -
Sections 24 (1), 24(4), 206, 207 & 209(h)
- U.P. Revenue Code Rules, 2016 - Rule 22
- Recall application against an ex parte
506 INDIAN LAW REPORTS ALLAHABAD SERIES
order passed under Section 24 of Revenue
Code,
2006,
cannot
be
held
nonmaintainable, particularly when sought by
person who, under scheme of Act and
Rules framed there under, is a necessary
party to proceedings - This is relevant
where ex parte order is rendered nonappealable by virtue of bar contained in
Section
209(h)
of
Code
-
Private
respondents, being tenure holders of
adjoining and contiguous plots, were
necessary parties under Rules, 2016 -
Since order under Revenue Code, 2006,
was passed ex parte against them, they
cannot
be
precluded
from
invoking
inherent jurisdiction of concerned court to
seek recall of said order - Challenge to
maintainability of recall application as
filed by private respondents lacks merit
and unsustainable. (Para 37 to 40)

Writ Petition dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,929 of 40,096. This is a partial read: ask again with offset=39929 for what follows._

9 All. Tarkeshwar & Ors. Vs. State of U.P. & Ors.
505
general sense, the word 'proceeding' is to be
held to mean the form and manner of
conducting judicial business before a court.
It can be seen as a stage in the journey of a
litigation - a step in the ladder of the
judicial process.

48. The word 'proceeding', in the
expression 'proceeding decided' occurring
in Section 210 of the Revenue Code would
therefore have to be construed as being
wide enough to comprehend within its
ambit a proceeding initiated pursuant to an
appellate order also. It would, in fact,
include any suit, appeal or application. The
expression 'proceeding' with reference to a
party vis-a-vis a court of law would have to
be held to include each and every step or
action taken before or during the course of
the progress of the suit, including the
appellate stage.

49. The condition precedent in order
to invoke the revisional jurisdiction under
Section 210 has been seen to include within
its ambit 'proceeding decided' other than a
'suit decided'. It cannot be restricted to the
entirety of proceedings in the journey of a
suit. To interpret 'proceeding decided' as
entire proceedings and not a part of a
proceeding would amount to restricting the
exercise of revisional jurisdiction which is
not as contemplated under Section 210.

50. The revisional court has the power
to rectify an order of a subordinate revenue
court at any stage of the suit or
proceedings, even if, the order does not
finally
dispose
of
the
suit
or
the
proceeding. The expression 'proceeding
decided' would include a part of a
proceeding and an interlocutory order
directly affecting the rights and obligation
of parties would also have to be held to be
included within its scope.

51. The order passed by the
Commissioner having decided the appeal
finally, the same would have to be held to
be within the ambit of the expression
'proceeding decided', occurring in Section
210 of the U.P. Revenue Code, and
therefore
the
remedy
of
a
revision
thereagainst cannot be said to be excluded.

52. The order dated 18.11.2022
passed
by
the
Commissioner
while
deciding the appeals having been held to be
amenable to the statutory remedy of
revision under Section 210 of the U.P.
Revenue Code, this Court would not be
inclined to entertain the writ petition in
view of the availability of an efficacious
statutory legal remedy.

53.

The
writ
petition
stands
accordingly dismissed.
----------
(2023) 9 ILRA 505
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2023

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-C No. 13852 of 2023

Tarkeshwar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Madan Ji Pandey, Sri Sudhanshu Pandey

Counsel for the Respondents:
C.S.C., Sri Sudhir Bharti

Civil Law - U.P. Revenue Code, 2006 -
Sections 24 (1), 24(4), 206, 207 & 209(h)
- U.P. Revenue Code Rules, 2016 - Rule 22
- Recall application against an ex parte
506 INDIAN LAW REPORTS ALLAHABAD SERIES
order passed under Section 24 of Revenue
Code,
2006,
cannot
be
held
nonmaintainable, particularly when sought by
person who, under scheme of Act and
Rules framed there under, is a necessary
party to proceedings - This is relevant
where ex parte order is rendered nonappealable by virtue of bar contained in
Section
209(h)
of
Code
-
Private
respondents, being tenure holders of
adjoining and contiguous plots, were
necessary parties under Rules, 2016 -
Since order under Revenue Code, 2006,
was passed ex parte against them, they
cannot
be
precluded
from
invoking
inherent jurisdiction of concerned court to
seek recall of said order - Challenge to
maintainability of recall application as
filed by private respondents lacks merit
and unsustainable. (Para 37 to 40)

Writ Petition dismissed. (E-13)

List of Cases cited:

1. Grindlays Bank Ltd. Vs Central Government
Industrial Tribunal & ors., 1980 Supp SCC 420,
(Para 6, 10, 13)

2. J.K. Synthetics Ltd. Vs Collector of Central
Excise, (1996) 6 SCC 92

3. Kapra Mazdoor Ekta Union Vs Birla Cotton
Spinning and Weaving

4. Mills Ltd. & anr., (2005) 13 SCC 777

5. Asit Kumar Kar Vs St. of W.B. & ors., (2009) 2
SCC 703

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Sudhanshu Pandey,
learned counsel appearing along with Sri
Madan Ji Pandey, learned counsel for the
petitioners, Sri Ajit Kumar Singh, learned
Additional Advocate General appearing
along with Sri Abhishek Shukla and Sri
Amit Manohar, learned Additional Chief
Standing Counsel and Sri Amit Verma,
learned Standing Counsel for the State
respondents.

2. The present petition seeks to put
forth a proposition that against an ex parte
order passed in proceedings under Section
24 of U.P. Revenue Code, 2006, the remedy
of a statutory appeal being available, a
recall
application
would
not
be
maintainable at the behest of a non-party.

3. The facts of the case, as reflected
from the pleadings in the writ petition,
indicate that an application filed by the
petitioner under Section 24 of U.P.
Revenue Code, 20061, registered as Case
No. 994 of 2022, computerized case no.
T202205200400994
(Tarkeshwar
and
others
vs.
Kishor
and
others)
for
demarcation of boundaries was allowed by
means of an ex parte order dated
22.07.2022.

4. Thereafter, the private respondent
nos. 3 to 5, asserting themselves to be
tenure holders of the adjoining plots and
necessary parties in the proceedings under
Section 24 of Code, 2006 preferred an
application dated 13.09.2022 seeking recall
of the ex parte order dated 23.07.2022.

5. The said application was taken up
by respondent no.2, and after hearing the
counsel for the parties on the stay
application, an order was passed staying the
effect of the earlier order dated 22.07.2022.

6. Counsel for the petitioner has
sought to assail the order dated 12.01.2023
by raising the following contentions:

6.1 The order dated 22.07.2022
passed in proceedings under Section 24 of
9 All. Tarkeshwar & Ors. Vs. State of U.P. & Ors.
507
the Code, 2006, being appealable in terms
of sub-section (4) thereof at the behest of
'any person' it was open to the private
respondents to have availed the statutory
remedy of appeal, and in view of the same,
the recall application was not maintainable.

6.2 Section 209(h), which bars an
appeal against an order passed ex parte or
by default, is subject to the condition
contained under the proviso, in terms of
which it is open to 'any party aggrieved' by
the order passed ex parte or by default, to
move an application for setting aside the
said order. The private respondents being
'non-parties', the order dated 22.02.2022
could neither be said to be an order passed
ex parte nor by default, and accordingly,
the remedy of seeking recall of the order
under the proviso to Section 209 would not
be available to the said respondents.

6.3 The private respondents having
not chosen to get themselves impleaded at
the stage of pendency of proceedings under
Section 24, it is not open to them to seek
recall of the order subsequently.

7. Learned Additional Advocate
General appearing for the State respondents
has controverted the assertions made by the
learned counsel for the petitioner by
submitting as under:-

7.1 The right to file a statutory appeal
under Section 24(4) of Code, 2006, can in
no manner be understood to take away the
right of the private respondents to seek
recall of an order passed ex parte. This
would be more so in a case where as per
the provisions contained under Rule 22 of
the U.P. Revenue Code Rules, 20162, the
private respondents being tenure holders of
contiguous plots, would be necessary
parties in the proceedings.

7.2 Rule 22 mandates that the
application filed under Section 24(1) Code,
2006, is to specify the details of the
contiguous plots, and also, the concerned
tenure holders are to be made parties in the
case
having
a
right
to
be
heard;
accordingly, the private respondents being
necessary parties, and the order having
been passed ex parte without impleading
them, it would be open to them to seek
recall of the order.

7.3 The expression 'any party'
aggrieved under the proviso of Rule 209,
which gives the remedy of filing of recall
application against the order passed ex
parte, would include within its ambit the
private respondents who, as per the relevant
statutory rules, are necessary parties in the
proceedings and the mere fact that they
were not impleaded, would not take away
the rights so conferred.

7.4 The right to recall any order ex
debito justitiae inheres in every Court or
Tribunal which has passed the order,
irrespective of the fact whether such right
has been expressly conferred by the statute.
In this regard, the distinction between the
'procedural review' and 'substantive review'
is well known.

8. In order to consider the rival
contentions,
the
relevant
statutory
provisions as contained under the Code,
2006, are being extracted below:

"Section 24: Disputes regarding
boundaries.
(1)
The
Sub-Divisional
Officer may, on his own motion or on an
application made in this behalf by a person
interested, decide, by summary inquiry, any
dispute regarding boundaries on the basis
of existing survey maps or, where they
have been revised in accordance with the
508 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions
of
the
Uttar
Pradesh
Consolidation of Holdings Act, 1953, on
the basis of such maps, but if this is not
possible, the boundaries shall be fixed on
the basis of actual possession.

(2) If in the course of an inquiry into a
dispute under sub-section (1), the SubDivisional Officer is unable to satisfy
himself as to which party is in possession
or if it is shown that possession has been
obtained by wrongful dispossession of the
lawful occupant, the Sub-Divisional Officer
shall-

(a) in the first case, ascertain by
summary inquiry who is the person best
entitled to the property, and shall put such
person in possession;

(b) in the second case, put the person
so dispossessed in possession, and for that
purpose use or cause to be used such force
as may be necessary and shall then fix the
boundary accordingly.

(3) Every proceeding under this
section shall, as far as possible, be
concluded by the Sub-Divisional Officer
within [three months] from the date of the
application.

(4) Any person aggrieved by the order
of the Sub-Divisional Officer may prefer an
appeal before the Commissioner within
thirty days of the date of such order. The
order of the Commissioner shall be final.

Section 206: Jurisdiction of civil
Courts and revenue courts.

(1)
Notwithstanding
anything
contained in any law for the time being in
force, but subject to the provisions of this
Code, no Civil Court shall entertain any
suit, application or proceeding to obtain a
decision or order on any matter which the
State Government, the Board, any Revenue
Court or revenue Officer is, by or under
this Code, empowered to determine, decide
or dispose of.

(2) Without prejudice to the generality
of the provisions of sub-section (1), and
save as otherwise expressly provided by or
under this Code-

(a) no Civil Court shall exercise
jurisdiction over any of the matters
specified in the Second Schedule; and

(b) no Court other than the revenue
Court or the revenue officer specified in
[Column 3] of the Third Schedule shall
entertain
any
suit,
application
or
proceeding specified in [Column 2] thereof.

(3)
Notwithstanding
anything
contained in this Code, an objection that a
Court or officer mentioned in sub-section
(2)(b) had or had no jurisdiction with
respect
to
any
suit,
application
or
proceeding, shall not be entertained by any
appellate, revisional or executing Court,
unless the objection was taken before the
Court or officer of the first instance, at the
earliest opportunity, and in all cases where
issues are settled at or before such
settlement, and unless there has been a
consequent failure of justice.

Section 207: First appeal. - (1) Any
party aggrieved by a final order or decree
passed
in
any
suit,
application
or
proceeding specified in Column 2 of the
Third Schedule, may prefer a first appeal to
the court or officer specified against it in
Column 4, where such order or decree was
passed by a Court or officer specified
against it in Column 3 thereof.

(2) A first appeal shall also lie against
an order of the nature specified-

(a) in section 47 of the Code of Civil
Procedure, 1908; or

(b) in section 104 of the said Code; or

(c) in Order XLIII, Rule 1 of the First
Schedule to the said Code.

(3) The period of limitation for filing a
first appeal under this section shall be thirty
days from the date of the order or decree
appealed against.
9 All. Tarkeshwar & Ors. Vs. State of U.P. & Ors.
509

Section 209: Bar against certain
appeals.-
Notwithstanding
anything
contained in Sections 207 and 208, no
appeal shall lie against any order or decree-

(a) made under Chapter XI of this
Code;

(b) granting or rejecting an application
for condonation of delay under section 5 of
the Limitation Act, 1963;

(c)
rejecting
an
application
for
[revision];

(d) granting or rejecting an application
for stay;

(e) remanding the case to any
subordinate Court;

(f) where such order or decree is of an
interim nature;

(g) passed by Court or officer with the
consent of parties; or

(h) where has been passed ex parte or
by default:

Provided that any party aggrieved by
order passed ex parte or by default, may
move application for setting aside such
order within a period of thirty days from
the date of the order:

Provided further that no such order
shall be reversed or altered without
previously summoning the party in whose
favour order has been passed to appear and
be heard in support of it.]"

9. The statutory rule corresponding to
the provisions contained under Section 24,
is Rule 22 of Rules, 2016, and the same is
extracted below:

"22. Settlement of boundary dispute
(Section 24)- (1) Under Section 24(1) of
the Code of tenure holder shall submit two
copies of the application for settlement of
boundary dispute to the Sub-Divisional
Officer for one or more than one
contiguous gatas, and it shall contain the
following particulars-

(a) Details of Gata--Gata number,
name of tenure holder. father/husband's
name of village/tehsil. If the tenure holders
are more than one, then particulars of all
shall
be
mentioned;
current
updated
khatauni shall also be to be attached to the
application.

(b) Details of contiguous Gata--Gata
number,
name
of
tenure
holder,
father/husband's
name,
name
of
village/tehsil. If the tenure holders are more
than one, then particulars of all shall be
mentioned. Current updated khatauni shall
also be attached to the application.

(2) If the khata is different in khatauni,
but sub-division is not done in sazra-map,
then sub-division in sazra-map shall be
necessary.

(3) If boundary of any property of
Gram
Panchayat/State
Government
is
adjacent to gata/gatas to be demarcated,
then the Chairman, Land Management
Committee/Gram Pradhan and the State
Government shall be made a party in the
case.

(4) Only the outer boundary shall be
demarcated for an application made for
boundary demarcation of contiguous gatas.

(5) The applicant shall deposit a fee of
Rs. 1000/- in Government treasury for the
demarcation of gata/attached gatas. A copy
of challan receipt shall also be attached
with the application form.

(6) On receipt of an application for
demarcation, on the same or next working
day, the Sub-Divisional Officer shall
register the case in Revenue Court
Computerised
Management
System
(RCCMS). Three copies of notices shall be
issued from the computerized system and
will be delivered to the Revenue Inspector
through Tehsildar.

(7) The Revenue Inspector shall serve
notice
to
the
concerned
tenure
holder/tenure holders as mentioned in sub-
510 INDIAN LAW REPORTS ALLAHABAD SERIES
rule (1), through the Lekhpal or through
any other mode. In absence of the tenure
holders, notice will be served to the adult
family member of the tenure holder/tenure
holders. The information of demarcation
shall also be given to the Chairman. Land
Management Committee.

(8) At the time of sending the
information or before the demarcation on
site, if the Revenue Inspector wants to
make any other affected person, a party to
the case he can do so.

(9)
After
fixing
the
date
of
demarcation and intimation to all the
concerned tenure holders, the Revenue
Inspector or any other revenue official will
demarcate the land parcel or parcels, as the
case may be. During demarcation if any
affected tenure holder is not a party to the
case, such tenure holder shall be made a
party to the case by the Revenue Inspector
on the spot and he will mention the same in
his demarcation report. Demarcation shall
be completed within a month from the date
of order for the same by the Sub-Divisional
Officer.

(10) The Revenue Inspector or other
revenue
officials
shall
prepare
the
demarcation report alongwith the site
memo. If there are no objections to the
same, then after getting the consent and
signature of all the concerned parties on the
demarcation report, the same shall be sent
it to the Sub-Divisional Officer through
Tehsildar in a week. On receipt of the
aforesaid report of the Revenue Inspector,
the Sub-Divisional Officer will pass the
order confirming the demarcation report.

(11) If the affected parties to the
demarcation have not given their consent to
the demarcation, or if there is any objection
to the demarcation report, notice(s) will be
issued by the Sub-Divisional Officer to all
the parties, fixing a date of hearing which
shall not be beyond 15 days from the date
of issuance of notice.

(12) The Sub-Divisional Officer shall
pass an order on the matter of boundary
demarcation after hearing all the concerned
parties. The Revenue Inspector shall
comply with such order within two weeks
from the date of order, and shall submit his
report to the Sub-Divisional Officer.

(13)
Where
the
boundary
of
gata/survey number is not recognizable due
to alluvion or diluvion of land, or heavy
rain, or due to damage caused by any other
reason, then on the application of the
Chairman of Village Revenue Committee
of that village, or on the report of the
Revenue Inspector or Lekhpal, or on the
joint
application
signed
by
all
the
concerned parties, the Sub- Divisional
Officer shall instruct the Revenue Inspector
or Lekhpal by a general or special order in
writing, that the demarcate the boundary on
ground on the basis of current survey map
or, where it is possible, on the basis of
possession, and if there is any complaint,
then on the advise of Village Revenue
Committee, resolve the same on the basis
of mutual consent. The Revenue Inspector
or Lekhpal shall comply with such order
within two weeks from the date of order,
and will submit his report to the SubDivisional Officer.

(14) At the time of passing order for
demarcation under sub-rules (10), (13) or
(14), the Sub-Divisonal Officer can direct
the SHO of the concerned police station to
make police force available on the spot at
the time of demarcation of land, in order to
maintain law and order.

(15) The Sub-Divisional Officer, will
try to complete the process within the
stipulated time as mentioned in Section
24(3) of the Code and if the process is not
completed within such time then the reason
for the same shall be recorded.]"
9 All. Tarkeshwar & Ors. Vs. State of U.P. & Ors.
511

10. Section 24 of the U.P. Revenue
Code, 2006, relates to disputes regarding
boundaries. The procedure with regard to
the settlement of boundary disputes is
provided under Rule 22 of Rules, 2016.

11. As per terms of sub-rule (1) of
Rule 22, the tenure holder is required to
submit two copies of the application for
settlement of boundary disputes to the SubDivisional Officer for one or more than one
contiguous gata, containing particulars with
regard to; (a) details of Gata, and (b) details
of contiguous Gata. Sub-rule (6) provides
that on receipt of an application for
demarcation, the Sub-Divisional Officer
shall register a case from the Revenue
Court Computerized Management System
(RCCMS), and three copies of the notices
shall be issued from the computerized
system and will be delivered to the
Revenue Inspector through Tehsildar. The
Revenue Inspector shall, in terms of subrule (7), serve notice to the concerned
tenure holder/tenure holders as mentioned
in sub-rule (1), through the Lekhpal or
through any other mode. At the time of
sending the information on or before the
demarcation on site, the Revenue Inspector
is empowered under sub-rule (8), to make
any other affected person/a party to the
case. After fixing the date of demarcation
and intimation to all the concerned tenure
holders, the Revenue Inspector or any other
revenue official, under sub-rule (9), is to
demarcate the land parcel or parcels, and
during demarcation, if any affected tenure
holder is not a party to the case, such tenure
holder shall be made a party to the case by
the Revenue Inspector on the spot and the
same would also be mentioned in the
demarcation
report.
The
demarcation
report, along with the site memo, is to be
prepared under sub-rule (10) by the
Revenue Inspector or any other revenue
official, and if there are no objections to the
same, then after getting the consent and
signature of all the concerned parties on the
demarcation report, the same shall be sent
to the Sub-Divisional Officer through the
Tehsildar. Upon receipt of the aforesaid
report, the Sub-Divisional Officer is to pass
an order confirming the demarcation report.
In the event, the affected parties to the
demarcation have not given their consent,
or if there is any objection to the
demarcation report, it is provided under
sub-rule (11) that the Sub-Divisional
Officer would issue notices to all the
concerned parties, fixing a date for hearing.
The
Sub-Divisional
Officer
shall,
thereafter, pass an order, as envisaged
under sub-rule (12), on the matter of
boundary demarcation after hearing all the
concerned parties.

12. Rule 22 of Rules 2016, as referred
to above, describes in detail the procedure
to be followed by the revenue officials in
respect of matters related to settlement of
boundary disputes under Section 24. It
would be relevant to notice that the
application to be filed under sub-rule (1) is
to contain particulars with regard to the
Gata,
including
the
details
of
the
contiguous Gata. Upon receipt of the
application, the Revenue Inspector, under
sub-rule (7), is required to serve notice to
the concerned tenure holders, as mentioned
in sub-rule (1). Sub-rule (8) mandates that
at the time of sending information or before
the demarcation on site, the Revenue
Inspector is empowered to make any other
affected person a party to the case. Further,
after fixing the date of demarcation and
intimation to all the concerned tenure
holders, sub-rule (9) mandates that the
Revenue Inspector would demarcate the
land parcels, and during demarcation, if
any affected tenure holder is not a party to
512 INDIAN LAW REPORTS ALLAHABAD SERIES
the case, such tenure holder shall be made a
party by the Revenue Inspector on the spot
and the same would be mentioned in the
demarcation report. The Revenue Inspector
shall, thereafter, prepare the demarcation
report along with the site memo, under subrule (10), and if there are no objections to
the same, then after getting the consent and
signature of all the concerned parties to the
demarcation report, the same is to be sent
to the Sub-Divisional Officer through the
Tehsildar whereupon the Sub-Divisional
Officer is to pass an order confirming the
report. If the affected parties have not given
their consent to the demarcation report or if
there are any objections to the demarcation
report, the Sub-Divisional Officer
is
required, under sub-rule (11) to issue
notices to all the parties fixing a date for
hearing and thereafter an order is to be
passed after hearing all the concerned
parties, as required under sub-rule (12).

13. The foregoing discussion with
regard to the procedure to be followed in
matters of demarcation, which has been
delineated in detail under Rule 22 of Rules
2016, would show that the details of the
contiguous Gata are required to be
provided
in
the
application
seeking
settlement of boundary disputes, and
thereafter notices are required to be served
upon
the
concerned
tenure
holders
including tenure holders of the contiguous
Gata.
The
revenue
authorities
are
empowered to make any affected person a
party to the case at the time of sending a
notice or before the demarcation on site.
Also, at the stage of demarcation, if any
affected tenure holder is not a party to the
case, such tenure holder is required to be
made a party on the spot and this is
required
to
be
mentioned
in
the
demarcation report to be prepared by the
Revenue
Inspector.
Further,
after
preparation of the demarcation report along
with the site memo, the consent and
signature of all the concerned parties are to
be
obtained,
whereupon,
the
SubDivisional Officer is to pass an order
confirming the report. However, if the
affected parties have not given their
consent or if there is any objection to the
demarcation report, notices would be
issued to all the parties, fixing a date for a
hearing, and the Sub-Divisional Officer
shall thereafter pass an order on the matter
of boundary demarcation only after hearing
all the concerned parties.

14. The aforestated scheme of the Act
with regard to the settlement of boundary
disputes, as would be seen from the
procedure
specified
under
Rule
22,
indicates in unambiguous terms that a
tenure holder of the contiguous plot would
be a necessary party in the proceedings
having a right to submit objections and also
a right to be heard before an order is
passed, confirming the demarcation report
and concluding the proceedings.

15. Section 209 contains a bar against
certain appeals, and in terms of clause (h)
thereof, an order passed ex parte has been
made non-appealable. The proviso to
Section 209 gives a remedy to any party
aggrieved by an order passed ex parte to
move an application for setting aside such
an order.

16. The private respondents, in the
instant case, being tenure holders of the
adjoining contiguous plots, would be
necessary parties as per the scheme of the
Act and the procedure specified under Rule
22, and therefore, in the event the order
relating to demarcation has been passed ex
parte against the said tenure holders, they
would necessarily have to be held, to be
9 All. Tarkeshwar & Ors. Vs. State of U.P. & Ors.
513
covered within the expression 'party
aggrieved', under the proviso to Section
209, and would be entitled to move an
application for setting aside of such ex
parte order.

17. The contention sought to be raised
on behalf of the petitioners that the private
respondents being 'non-parties', for the
reason that they were not impleaded in the
proceedings, would not be entitled to seek
recall of the ex parte order under the
proviso to Section 209, cannot be accepted
for the reason that the procedure prescribed
under Rule 22, does not give a choice to the
party applying for demarcation not to make
the tenure holder of the contiguous Gata a
party to the proceedings; rather the scheme
of the Act and the Rules mandates that a
tenure holder of adjoining contiguous Gata
or any other such affected person, would
necessarily have to be made party to the
proceedings.

18. The other argument sought to be put
forward that it was for the private
respondents to get themselves impleaded,
also cannot be accepted for the reason that
under the scheme of statute, it was a duty cast
on the party applying for demarcation to have
impleaded all the affected parties, including
tenure holders of contiguous plots.

19. Therefore, merely for the reason
that the private respondents were not made
a party to the proceedings despite being
tenure holders of the adjoining plots,
cannot lead to the conclusion that they
would not be 'affected parties' or would not
be covered within the meaning of the
expression 'party aggrieved', so as to seek
recall of the order passed ex parte.

20. It may also be noted that quite
apart from the statutory power of recall of
an ex parte order conferred under the first
proviso to Section 209, every court or
Tribunal would have an inherent power to
recall an ex parte order to secure the ends
of justice.

21. Taking note of the distinction
between a 'procedural review' and a
'review on merits', in Grindlays Bank
Ltd. vs. Central Government Industrial
Tribunal and others3, it was held that even
though there may be no express provision
under the statute giving jurisdiction to set
aside an ex parte order, the Court or
Tribunal would be considered as endowed
with such incidental or ancillary powers as
are necessary to discharge its functions
effectively for the purpose of doing justice
between
the
parties.
The
relevant
observations made in the judgment in this
regard are as follows:

"6... It is true that there is no express
provision in the Act or the rules framed
thereunder giving the Tribunal jurisdiction
to do so. But it is a well known rule of
statutory construction that a Tribunal or
body should be considered to be endowed
with such ancillary or incidental powers as
are necessary to discharge its functions
effectively for the purpose of doing justice
between the parties. In a case of this nature,
we are of the view that the Tribunal should
be considered as invested with such
incidental or ancillary powers unless there
is any indication in the statute to the
contrary...

10... We are inclined to the view that
where a party is prevented from appearing
at the hearing due to a sufficient cause, and
is faced with an ex parte award, it is as if
the party is visited with an award without a
notice of the proceedings. It is needless to
stress that where the Tribunal proceeds to
make an award without notice to a party,
514 INDIAN LAW REPORTS ALLAHABAD SERIES
the award is nothing but a nullity. In such
circumstances, the Tribunal has not only
the power but also the duty to set aside the
ex parte award and to direct the matter to
be heard afresh.

13. ....The expression 'review' is used
in the to distinct senses, namely (1) a
procedural review which is either inherent
or implied in a court or Tribunal to set aside
a palpably erroneous order passed under a
mis-apprehension by it, and (2) a review on
merits when the error sought to be
corrected is one of law and is apparent on
the face of the record. It is in the latter
sense that the court in Patel Narshi
Thakershi Case4 held that no review lies on
merits unless a statute specifically provides
for it. Obviously when a review is sought
due to a procedural defect, the inadvertent
error committed by the Tribunal must be
corrected ex debitio justitiae to prevent the
abuse of its process, and such power
inheres in every court or Tribunal."

22. The same view was taken in J.K.
Synthetics Ltd. vs. Collector of Central
Excise5, wherein it was held that in a given
case if it was established that the
respondent was unable to appear for no
fault of his own, the ends of justice would
clearly require that the ex parte order
against him should be set aside, and the
power to do so is inherent in every
Tribunal.

23. The distinction between a 'review
on merits' and a 'procedural review' was
reiterated in Kapra Mazdoor Ekta Union
vs. Birla Cotton Spinning and Weaving
Mills Ltd. and another,6 and it was held
that a 'review on merits' is permissible only
in case the forum in question is vested with
the power of review by the statute;
however, the power to grant 'procedural
review' is inherent.

24. It is a fundamental principle of
natural justice and a basic canon of
jurisprudence that no adverse orders should
be passed against a party without grant of
an opportunity of hearing and against an
order passed ex parte, the person concerned
would have a right to seek recall. The
distinction between a review and a recall
petition is well established.

25. In Asit Kumar Kar vs. State of
West Bengal & others7, the aforestated
distinction was pointed out by stating that
while in a review petition, the court
considers on merits whether 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.

26. In the case at hand, Rule 22 of
Rules 2016, contains a specific mandate
that a tenure holder of adjoining contiguous
plots would be a necessary party in the
proceedings for division of holdings under
Section 24. It further enjoins upon the
revenue authorities to ensure that notice is
to be issued to such party prior to initiation
of proceedings for demarcation, and
further, upon any objection being raised,
the said tenure holder is to be granted an
opportunity of hearing before a final order
is passed.

27. It would, therefore, follow as a
corollary
that
in
case
the
revenue
authorities have proceeded to pass an order
ex parte without grant of notice or
opportunity to the affected party, the
concerned revenue authority would not be
precluded from exercising the power to
recall its order to correct the procedural
defect, ex debitio justitiae in order for
doing justice between the parties.
9 All. Tarkeshwar & Ors. Vs. State of U.P. & Ors.
515

28. The power to review an order on
merits though may be held to have been
vested in a court or a Tribunal only in
terms of express statutory provision or by
necessary implication, the power of
'procedural review' would stand entirely
on a different footing and would be
referable to the inherent power vested in
every court or Tribunal to correct
procedural illegality which goes to the
root of the matter and invalidates the
proceedings itself and consequently the
order passed therein.

29. The power to set aside an ex parte
order would amount to a 'procedural
review', which is inherent or implicit in
every court or Tribunal and is distinct from
the power to grant a 'review on merits'.

30. In the facts in the present case
where the scheme of the Act and the Rules
made
thereunder
specifically
mandate
giving notice to the tenure holders of
adjoining contiguous plots, and the order
passed by the concerned revenue authority
is without notice or opportunity, the parties
affected i.e the private respondents herein
would not be precluded from invoking the
power of procedural review. .

31. The party seeking review or recall
of the order for procedural reasons may not
be required to substantiate that the order
passed suffers from an error apparent on
the face of the record or any other ground
which may justify a review. It would only
be required to establish that the procedure
followed by the court or the Tribunal
suffered from a procedural error or
illegality which has the effect of vitiating
the proceedings, thereby invalidating the
order passed therein, inasmuch as the party
concerned was not heard for no fault on its
part.

32. In such cases, the matter would be
required to be reheard in accordance with
law without going into its merits, and the
order passed would be liable to be recalled
not for the reason that it was erroneous but
because it was passed in a proceeding
which was vitiated by an error of procedure
or mistake which went to the root of the
matter and had the effect of invalidating the
entire proceedings.

33. The contention sought to be raised
on behalf of the petitioner that the order
passed in proceedings under Section 24
being appealable in terms of sub-section (4)
thereof, it was open to the private
respondents to have availed the statutory
remedy of appeal, would not be tenable for
the reason that clause (h) of Section 209
contains a specific bar by providing that the
order passed ex parte would not be
amenable to remedy of an appeal.

34. It has been held to be an
established rule of statutory construction
that express grant of power under statute
carries with it by necessary implication all
powers and duties incidental and necessary
to make the exercise of these powers fully
effective. In this regard, reference may be
had to the exposition of the law in
Sutherland
Statutory
Construction8,
wherein it has been stated as follows:

"Where a statute confers powers or
duties in general terms, all powers and
duties incidental and necessary to make
such legislation effective are included by
implication... An express statutory grant of
power or the imposition of a definite duty
carries with it by implication, in the
absence of a limitation, authority to employ
all the means that are usually employed and
that are necessary to the exercise of the
power or the performance of the duty....
516 INDIAN LAW REPORTS ALLAHABAD SERIES
That which is clearly implied is as much a
part of a law as that which is expressed."

35. It would also be apt to refer to
Domat's Civil Law9 wherein it has been
observed as follows:-

"It is the duty of the judges to apply
the laws, not only to what appears to be
regulated by their express dispositions but
to all the cases where a just application of
them may be made, and which appear to be
comprehended
either
within
the
consequences that may be gathered from
it."

36. Maxwell on Interpretation of
Statutes10, also contains a statement that
"where an act confers a jurisdiction, it
impliedly also grants the power of doing all
such acts, or employing such means, as are
essentially necessary to its execution. Cui
jurisdictio data est, ea quoqe concessa esse
vindentur, sine quibus jurisdictio explicari
non potuit."

37. A necessary conclusion which
flows from the foregoing discussion would
be that against ex parte order passed in a
proceeding under Section 24 of U.P.
Revenue Code, 2006, a recall application
cannot be held to be not maintainable,
particularly when the recall is being sought
by a person, who as per the scheme of the
Act and the Rules made thereunder, would
be a necessary party to the proceeding. This
would be more so in a case where an ex
parte order has been made non-appealable
by virtue of the bar contained under clause
(h) of Section 209 of the Code, 2006.

38. The private respondents in the
instant case being tenure holders of
adjoining contiguous plots and, therefore,
necessary parties as per Rule 22 of Rules
2016, and the order in proceedings under
Section 24 having been passed ex parte
against them, the said respondents cannot
therefore be precluded from invoking the
inherent power of the court concerned to
seek recall of the order passed in
proceeding under Section 24 of Code,
2006.

39. The challenge, which is sought to
be raised against the order passed by the
respondent no.2 upon the recall application
filed by the private respondents on the
ground that the application seeking recall
was not maintainable, thus, cannot be
sustained.

40. The writ petition, therefore, fails
and is accordingly dismissed.
----------
(2023) 9 ILRA 516
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.08.2023

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ-C No. 39355 of 2015

Ajay Bahadur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ramandna Gupta, Sri Ram Kishore Pandey,
Sri Rama Nand Gupta

Counsel for the Respondents:
C.S.C.

Civil Law - Stamp Act, 1899 - Section
33/47-A & 56 - U.P. Stamp (Valuation of
Property) Rules, 1997 - U.P.