Dulari Tirkey vs State of Jharkhand And Ors

Heard Mr. S.N. Prasad, learned counsel appearing on behalf of the petitioner.

Heard Mr. Kundan Kr. Ambastha, learned counsel appearing on behalf of the opposite parties.

This civil review petition has been filed in connection with review of order 05.04.2018, passed in W.P.(C). No.2962 of 2008.

Learned counsel for the petitioner submits that this civil review petition has been filed on account of two reasons. Firstly, the original writ petitioner

namely Dashwa Oraon had expired prior to passing of the order dated 05.04.2018 in W.P.(C) No. 2962 of 2008 and accordingly, an order has been

passed in favour of a dead person. He submits that in view of this fact, the order passed in W.P.(C) No. 2962 of 2008 dated 05.04.2018, is itself a

nullity and accordingly, that order is required to be recalled. The death certificate has been filed as Annexure â€" 6 showing date of death as

19.8.2016.

Secondly, the petitioner was the person against whom the order of restoration of land was passed and the petitioner was not made a party

respondent in the writ petition.

Learned counsel for the petitioner also submits that a direction has been issued by this Court directing the Circle Officer to execute the order of

restoration of land in favour of the dead writ petitioner vide para 15 of the order under review. Accordingly, he submits that the petitioner is one of the

aggrieved persons. However, he does not dispute the fact that the order of restoration of land has attained finality and no petition challenging the order

of restoration is pending before any competent court of law.

The learned counsel for the petitioner has referred to the judgment passed by the Hon’ble Bombay High Court reported inA IR 2003

BOMBAY 228 (Shapoorji Data Processing Ltd. Vs. Ameer Trading Corporation Ltd.) as well as judgment passed in the case of “M/s Numaligarh

Refinery Ltd. and Others Vs. Assam Board of Revenue, Guwahati and Others†reported in AIR 2003 GAUHATI 11, 9to submit that in such

circumstances the petitioner even if not a party to the writ petition, the review petition at her instance is maintainable.

Learned counsel appearing on behalf of the private opposite party, on the other hand, does not dispute the fact that the original writ petitioner had

already expired when on 05.04.2018 the order was passed in the writ petition, but he submits that he had no knowledge about the death of the writ

petitioner and the writ petition was argued when the case was taken up. Learned counsel also does not dispute the fact that any order passed in

favour of or against dead person, is a nullity. However he submits that the present petition, at the instance of the review petitioner, is not maintainable

and accordingly, the review petition is fit to be dismissed.

Since the review petitioner did not avail of the opportunities or the legal remedies which were available against the order of restoration, she cannot

be said to be an aggrieved party for the purposes execution of the order of restoration of land which has attained finality.

Considering the submission made, this Court is of the considered view that there is no dispute that the order has been passed in favour of the sole

petitioner on 05.04.2018 and on that date, he had already expired. Admittedly, no petition for substitution was filed and certain directions were issued

to the Circle Officer in the said order. Considering this aspect of the matter, this Court is of the considered view that an order passed in favour of a

dead person has to be recalled. Accordingly, this Court hereby recalls the order dated 05.04.2018 passed in W.P.(C) No.2962 of 2008 and the writ

petition is directed to be listed before appropriate Bench as per roster.

The instant review petition is hereby allowed by way of recall of the order dated 05.04.2018 passed in W.P.(C). No.2962 of 2008.