Allahabad High Court
Santu vs State Of U.P. And 4 Ohters on 20 August, 2019
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Reserved Court No. - 9 Case :- WRIT - C No. - 23471 of 2019 Petitioner :- Santu Respondent :- State Of U.P. And 4 Ohters Counsel for Petitioner :- R.P.S. Chauhan Counsel for Respondent :- C.S.C.,Arun Kumar Srivastava Hon'ble Anjani Kumar Mishra,J.
Heard Shri R.P.S. Chauhan, learned counsel for the petitioner and Shri Arun Kumar Srivastava for the Gaon Sabha, respondent no.5 as also learned Standing Counsel for the State-respondents.
The instant writ petition has been filed seeking a writ of certiorari for quashing the order dated 10.04.2019 passed by the Additional Commissioner (Judicial) Bareily Division, Bareilly refusing to condone the delay in filing a restoration application for recall of an order dated 27.01.2010, whereby an appeal filed by the petitioner had been dismissed for default.
The petitioner filed a suit under Section 229B of the U.p Zamindari Abolition and Land Reforms Act for declaration claiming on the basis of a registered will executed in his favour by one Nanuki.
The trial Court dismissed the suit vide judgement and decree dated 19.12.2005.
The petitioner preferred an appeal, which was dismissed for default on 27.01.2010.
A belated restoration application accompanied by an application under Section 5 of the Limitation Act was filed on 21.01.2011.
The First appellate Court vide order dated 10.04.2019 refuseD to condone the delay of 1 year seven months in filing the restoration application, on the ground that the delay had not been properly explained. As a consequence thereof, the restoration application has also been dismissed. Hence, this writ petition.
The question for consideration in this writ petition is whether , the petition, is maintainable or whether it is barred by existence of a statutory alternative remedy.
It is not in issue that the provisions of the Civil Procedure Code are applicable to the proceedings under Section 229B of the U.P. Zamindari Abolition and Land Reforms Act.
The petitioner preferred an appeal before the Additional Commissioner (Judicial) Bareilly Division, Bareilly, which was dismissed for default. This order necessarily was one under Order 41 Rule 19 C.P.C. The same Rule 19 provides that a restoration application for recall of the order dismissing the appeal. This belated application has been rejected by the impugned order.
The order rejecting the recall application on the ground of delay in my considered opinion, is necessarily appealable under Order 43 Rule 1(t). The impugned order therefore, is necessarily appealable before the Board of Revenue.
With regard to the above, petitioner in the writ petition has stated that an appeal was filed before the Board of Revenue but the registry refused to accept the same.
The averment made is a bald averment not supported by any material on record to show that an appeal was actually preferred before the Board of Revenue was not accepted by the registry. In any case, the averment is that it was refused orally. The bald allegation, in my considered opinion, cannot be accepted.
The additional averment made in the same paragraph of the writ petition is that the appeal preferred by the petitioner was maintainable under Section 207 Sub-section 2 (c) of the Revenue Code, 2006.
However, this contention cannot be accepted because Section 209 (b) creates a bar against appeals being preferred in certain circumstances. It clearly prohibits an appeal against an order granting or rejecting an application for condonation of delay under Section 5 of the Limitation Act, 1963. The appeal allegedly sought to be preferred by the petitioner was therefore, entirely barred by Section 209(b).
However, this Court is constrained to hold that the provisions of U.P. Revenue Code, 2006 are not attracted to the case at hand, in view of Section 231 of the Code itself, which reads as follows -
"231. Applicability of the Code to pending proceedings -(1) Save as otherwise expressly provided in this Code, all cases pending before the State Government or any revenue court immediately before the commencement of this Code, whether in appeal, revision, review or otherwise, shall be decided in accordance with the provisions of the appropriate law, which would have been applicable to them had this Code not been passed.
(2) ................"
The suit filed by the petitioner was one under Section 229B of the U.P. Zamindari Abolition and Land Reforms Act. Therefore, even the subsequent proceedings arising therefrom would be governed by the provision of the U.P.Zamindari Abolition and Land Reforms Act despite its repeal and enforcement of the U.P. Revenue Code, 2006.
Sub-section 3 of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act provides for an appeal from amongst others, also against an order of the nature, mentioned in Order 43 Rule 1 C.P.C. Therefore, the petitioner has a statutory alternative remedy of an appeal against the order impugned and for this reason alone, the instant writ petition is not liable to be entertained.
Even if for the sake of argument, it is accepted that an appeal will not lie against the order impugned, the petitioner definitely has the remedy of a revision before the Board of Revenue under Section 339 of the U.P. Zamindari Abolition and Land Reforms Act.
The statutory alternative remedy available to the petitioner has not been availed.
Therefore, this writ petition is dismissed on the ground of availability of a statutory alternative remedy.
Order Date :- 20.8.2019 RKM