Allahabad High Court
Braj Bhushan Singh And Others vs State Of U.P. And Others on 5 October, 2012
Author: Arun Tandon
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Civil Misc. Recall Application No. 165772 of 2012 In re: Case :- WRIT - C No. - 17943 of 2009 Petitioner :- Braj Bhushan Singh And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- Prem Prakash Yadav,Kunal Ravi Singh,Manjari Singh,Prem Prakash,V.K.S. Chaudhary Respondent Counsel :- C.S.C.,A.K.Rai,H.M. Srivastava,H.M.Srivastava,Neeraj Srivastava,R.V. Pathak,Shashi Kant Shukla,V.K.Singh Hon'ble Arun Tandon,J.
This is an application for recall of the order dated 09.01.2012 passed in Writ Petition No. 17943 of 2009.
It would be worthwhile to reproduce the entire order dated 09.01.2012, recall whereof is prayed for. The order dated 09.01.2012 is being reproduced herein below:
"All substitution applications are allowed.
Proceedings under Section 4/5 of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 have been initiated against the petitioner on an application made by Nagarpalika, Mainpuri to its Chairman. The proceedings were decided ex-parte under an order dated 19.9.2008 and it was held that the premises was not covered within the definition of public premises.
An application for recall was made on behalf of the State on the ground that the order has been passed without hearing the State. The land in fact was Nazul property and, therefore, public premises. This application has been allowed by the Prescribed Authority under order dated 2.3.2009 after recording a finding that the State had to be heard before recording a finding that the property in the facts of the case was not a public premises. Accordingly after setting aside the earlier order, the proceedings has restored the proceedings. It is against this order that the present writ petition has been filed.
I have heard learned counsel for the parties and have examined the records.
In my opinion, the issue as to whether the premises is covered within the definition of public premises under Section 9 of P.P. Act or not is an issue which did need examination after affording opportunity to the state specifically in the circumstances when it has been stated that the premises was a Nazul property.
This Court may only record that such issues require consideration of oral as well as documentary evidence and, therefore, the prescribed authority has rightly set aside its earlier order whereby the proceedings were closed after holding that the premises was not a public premise in absence of the State. This Court finds no good ground to interfere with the order recalling the earlier decision in the matter and restoring the proceedings.
However, learned counsel for the petitioners submits that an observation has been made in the impugned order that the premises being Nazul property is covered within the Public Premises Act which would practically close the issue in the proceedings as restored.
I am of the considered opinion that the remarks so made in the order dated 2.3.2009 is only a tentative opinion expressed by the Court while holding that the State was a necessary party to be heard before the issue of the States of the property could be decided. It is clarified that the observation so made in the impugned order will not prejudice the rights of either parties and it will be open to them to establish their respective cases before the Prescribed Authority. It is open to the petitioners to contend that in the facts of the case the premises is not covered within the definition of public premises and it is for the Prescribed Authority to decide on the basis of material evidence to be brought on record whether the objection as taken by the petitioners is legally sustainable or not. The prescribed authority shall proceed with the matter strictly in accordance with law.
With the aforesaid observation, writ petition is disposed of."
Applicant before this Court submits that the order, which was challenged by Braj Bhushan Singh before the High Court, was passed on recall application made by the State as well as by the applicants, who claim title over the property in question, in respect whereof Writ Petition No. 4242 of 1982 is said to be pending before the High Court.
It is his case that the order dated 09.01.2012 has been passed by this Court without affording opportunity to the applicants. The order has been passed in violation of the principles of natural justice and therefore the same may be recalled.
In my opinion this application is an abuse of the process of the Court and appears to have been instituted only to protect the interest of Braj Bhushan Singh and others (petitioners).
From the order dated 09.01.2012 passed by this Court, it is apparently clear that this Court has refused to interfere with the order, whereby the recall applications were granted including that filed by the present applicant. This Court fails to understand as to how the applicant, whose application for recall of the order has been allowed under the order impugned in the writ petition, can be said to be aggrieved by the dismissal of the writ petition.
This Court had clarified that any observation made in the impugned order qua the premises being a nazul property shall not be binding and all such issues shall be examined by the Prescribed Authority himself.
This Court has, therefore, no hesitation to hold that the recall application is liable to be dismissed, and the applicant must be saddled with exceptional cost for unnecessarily wasting the time of the Court and for making an attempt to prolong the proceedings under the Public Premises Act to the advantage of the alleged unauthorized occupants i. e. Braj Bhushan Singh.
The application is dismissed with cost of Rs. 50,000/-. The cost shall be paid by the applicant within one month to respondent no. 1, in case of default it shall be recovered by respondent no. 1 within four weeks thereafter.
Order Date :- 5.10.2012 Pkb/