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Suresh And Another v. State Of U.P. Thru' Collector, Meerut And Others - WRIT - C No. 5166 of 2002  RD-AH 1462 (20 November 2004)
Court No. 51
Civil Misc. Writ Petition No. 5166 of 2002
Suresh & another ---- Petitioner
State of U.P. & others ---- Respondents.
Hon'ble V.C.Misra, J.
Heard Sri S.K.Tyagi, learned counsel for the petitioner, learned Standing Counsel for respondents no. 1 and 2 and Smt. Usha Kiran, learned counsel for respondents no. 3 and 4.
1. Since counter and rejoinder affidavits have been exchanged, on the joint request of the learned counsel for the parties, this writ petition is taken up for hearing and is being decided finally at this stage.
2. This writ petition has been filed, by the petitioner challenging the impugned order dated 16.1.2002 (Annexure No. 5 to the writ petition) passed by the Collector, Meerut- respondent no. 1 by which its earlier order dated 10.8.2001 dismissing the revision on merits filed by the respondent no. 4- Gaon Sabha had been reviewed, on the grounds, inter alia, that the Collector- respondent no. 1 had no jurisdiction to review its earlier order passed on merits after hearing the parties and has thus exceeded its jurisdiction and also erred, in simultaneously setting aside the order dated 21.5.2001 (Annexure No. 1 to the writ petition ) passed by the trial court -Assistant Collector-respondent no. 2, in spite of the fact that no such prayer was made in the review application moved by the respondent no. 4-Gaon Sabha.
3. The facts of the case in brief are that the petitioner was served a notice under Form 49-Ka of the U.P.Z.A. & L.R. Act (hereinafter referred to as ''the Act'). The respondent no. 2-Assistant Collector on obtaining a report and examining the Lekhpal concerned, and after hearing learned counsel for the parties at length, and on the basis of the entire relevant material and evidence on record led in the case, arrived at a conclusion vide its order dated 21.5.2001 (annexure No. 1 to the writ petition) that the petitioners were in actual and physical possession over the land, in dispute, prior to 30.6.1995 and since the petitioners belonged to the Scheduled caste they were fully entitled to the benefits provided under Section 122-B (4)(f) of the Act and stood protected under the relevant Rules and Government Orders with Amendments issued from time to time under the Act and dropped the proceedings initiated against the petitioners under Form 49-Ka of the Act on the basis of findings of fact.
4. The respondent no. 4, being aggrieved by the judgment and order dated 21.5.2001 passed by the respondent no. 2- Assistant Collector, Meerut, filed a revision no. 191 of 2001 under the provisions of 122-B (4)(a) of the Act before the Collector, Meerut- respondent no. 1. The Collector, Meerut- respondent no.1 also, after considering the entire material on record dismissed the memorandum of revision filed before it on merit by a reasoned and speaking order dated 10.8.2001 (Annexure No. 2 to the writ petition) wherein it was categorically held, that, it found, the petitioners to be in actual and physical possession over the land, in dispute, since prior to 30.6.1995 and they were fully entitled to the benefits of the Government Orders passed from time to time and other provisions of law. A finding was also recorded that the land, in dispute, was not covered under Section 132 of the Act and hence the notice under Form 49-Ka of the Act had rightly been set aside and the proceedings thereunder had been correctly dropped by the trial court-respondent no. 2.
5. Being aggrieved by the order dated 10.8.2001 (Annexure No. 2 to the writ petition) passed by the Collector, Meerut- respondent no. 2, dismissing the revision on merit, the respondent no. 4, filed a review petition wherein it was stated in para 4 that Gaon Sabha- respondent no.4 had no knowledge of the case pending before the trial court- respondent no. 2 nor it could file any document before it, whereas, in para 5 it has been averred that the opposite parties (petitioners in this petition) very cleverly got the Revision No. 191 of 2001 filed under Section 122-B of the Act, and thus, in case no arguments in support of the case of Gaon Sabha- respondent no. 4 could be placed before the revisional court and on this count the order dated 10.8.2001 (annexure No. 2 to the writ petition) was liable to be set aside. The opposite parties (petitioners in this petition) filed their objections denying the averments made in para 4 and 5 of the review application. In para 8 of their objections it was stated that Gaon Sabha- respondent no. 4 and the State Government had full and complete knowledge of the revision, so filed, which had been decided on merits and further that, the review application had been filed beyond the limitation period.
6. The Collector- respondent no. 2 after hearing the parties relying upon the averments made by the Gaon Sabha- respondent no. 4 that, it had not been afforded an opportunity to defend his case and secure its property, allowed the application for review and set aside the order of the trial court dated 21.5.2001 (Annexure No. 1 to the writ petition) and remanded the matter back again to the Assistant Collector- respondent no. 2 to dispose of the case afresh. The respondent no. 1 while deciding the review application also decided the revision on merits.
7. Learned counsel for the petitioner has submitted that there is no provision under the Act under which the Collector could review its final judgment and order passed on merit in revision. Smt. Usha Kiran, learned counsel for the respondents no. 3 and 4 has not been able to show any such provision under which the Collector could review its judgment and order passed in revision on merits. It is settled law that once a judgment and order has been passed on merit, the court passing the order becomes functus officio, and cannot review or modify its order, unless and until it is expressly provided for and there is no error apparent on the face of the record. The principles of the provisions of Section 114 and Order XLVII Rule 1 of the Code of Civil Procedure would also apply. In the present case the learned counsel for the respondents have also failed to demonstrate that any such error apparent on the face of the record existed which prompted the Collector- respondent no. 1 to review its earlier order dated 21.5.2001 passed on merits.
8. I have looked into the record of the case and on perusal of the said judgment and order passed by the trial court, I find that the Gaon Sabha- respondent no. 4 was very much present and contested the case and arguments were advanced on its behalf by the Standing Counsel, and further on perusal of the order dated 10.8.2001 (Annexure No. 2 to the writ petition) passed on the memo of revision filed by the respondent no. 4 -Gaon Sabha it opens up with the words, ''heard learned counsel for the parties, perused the record of the trial court against which the revision had been filed by the Gaon Sabha through District Government Counsel (D.G.C. (Revenue) ) who has been heard at length,' clearly shows that the respondent no. 4 had participated in the proceedings throughout before the trial court-respondent no.2 as well as before the Collector-respondent No.1.
9. In my view the Collector- respondent no. 1 has grossly erred in law and procedure and has acted beyond its jurisdiction in exercising its authority by allowing the review application filed by the respondent no. 4 and simultaneously in setting aside the order dated 21.5.2001 (Annexure No. 1 to the writ petition) passed by the respondent no. 2 vide its impugned order dated 16.1.2002 (Annexure No. 5 to the writ petition). Under the above said facts, circumstances and settled law, and the observations, made hereinbefore, the impugned order dated 16.1.2002 (Annexure No. 5 to the writ petition) is hereby quashed.
The writ petition is allowed. There will be no order as to costs.
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