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Neutral Citation No. 2023:AHC:148728
A.F.R.
Court No. 7
Case : WRIT C No. 13852 of 2023
Petitioner : Tarkeshwar And 2 Others
Respondent : State Of U.P. And 5 Others
Counsel for Petitioner : Madan Ji Pandey
Counsel for Respondent : C.S.C.,Sudhir Bharti
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 nonparty.
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, 2006
1
, registered as
Case No. 994 of 2022, computerized case no.
1Code, 2006
2
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 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
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move an application for setting aside the said order. The private
respondents being 'nonparties', 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, 2016
2
, 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
2Rules, 2016
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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 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 subsection
(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 SubDivisional Officer shall
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(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 SubDivisional Officer within [three months]
from the date of the application.
(4)Any person aggrieved by the order of the SubDivisional
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 subsection (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
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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.
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
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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 SubDivisional Officer for one or
more than one contiguous gatas, and it shall contain the
following particulars
(a) Details of GataGata 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 GataGata 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 subdivision is
not done in sazramap, then subdivision in sazramap 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 SubDivisional 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.
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(7) The Revenue Inspector shall serve notice to the
concerned tenure holder/tenure holders as mentioned in
subrule (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
SubDivisional 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 SubDivisional 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 SubDivisional 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
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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 SubDivisonal 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 SubDivisional 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.]”
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 subrule (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. Subrule
(6) provides that on receipt of an application for demarcation,
the SubDivisional 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
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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 subrule (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 subrule (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 subrule (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 subrule (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 SubDivisional Officer through the Tehsildar. Upon
receipt of the aforesaid report, the SubDivisional 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 subrule (11) that the SubDivisional Officer
would issue notices to all the concerned parties, fixing a date for
hearing. The SubDivisional Officer shall, thereafter, pass an
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order, as envisaged under subrule (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 subrule (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 subrule (7), is required to serve notice to the concerned
tenure holders, as mentioned in subrule (1). Subrule (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, subrule (9) mandates that the
Revenue Inspector would demarcate the land parcels, and
during demarcation, if any affected tenure holder is not a party
to 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 SubDivisional Officer through the Tehsildar
whereupon the SubDivisional Officer is to pass an order
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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 SubDivisional Officer is required,
under subrule (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
subrule (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,
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fixing a date for a hearing, and the SubDivisional 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 nonappealable. 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 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
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petitioners that the private respondents being 'nonparties', 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
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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 others
3
, 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, 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
31980 Supp SCC 420
16
order passed under a misapprehension 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 Case
4
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 Excise
5
, 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.
4(1971) 3 SCC 844
5(1996) 6 SCC 92
6(2005) 13 SCC 777
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25. In Asit Kumar Kar vs. State of West Bengal & others
7
, 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.
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
7(2009) 2 SCC 703
18
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.
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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 subsection (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 Construction
8
, 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
8Sutherland Statutory Construction, 3
rd
Edition, Volume III, Article 5402
20
performance of the duty.... 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 Law
9
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 Statutes
10
, 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
9Domat’s Civil Law, Cushing’s Edition, Vol.1, Page 88
10Maxwell on Interpretation of Statutes, Eleventh Edition
21
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.
Order Date : 25.7.2023
Mohini/Arun K. Singh
[Dr. Y.K. Srivastava, J.]
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