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2014 DIGILAW 1126 (ALL)

Umardeen v. State of U. P.

2014-04-07

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT application for delivery of possession. On these findings the revision was allowed and order of Additional Collector dated 28.4.2006 was set aside. The petitioners filed an application for recall of the order dated 29.11.2013, along with delay condonation application. State of U.P. filed an application for review. Both the applications were consolidated and heard by Additional Commissioner, who by order dated 12.3.2014 held that order dated 29.11.2013 was passed after hearing the arguments of District Government Counsel Revenue, as such, review application filed by them was not maintainable. The petitioners were neither complainant nor was impleaded as opposite party in the revision, as such, recall application filed by them was not maintainable. On these findings recall and review applications both were dismissed by order dated 12.3.2014. Hence this writ petition has been filed. 4. The Counsel for the petitioners submits that plot No. 2362 (new No. 1639) of village Balwa, pargana and district Samli, was the abadi of the petitioners, on the date of allotment, i.e. 1.4.1984 and approved on 19.4.1984. The land in dispute was not a vacant land, as such, the Land Management Committee was not competent to make any allotment. During consolidation, the petitioners filed an objection for keeping the land in dispute as chak out. However, the Consolidation Officer by order dated 16.8.1984 held that as the land in dispute was abadi as such consolidation authorities have no jurisdiction to pass any order. Between the parties, proceeding under section 145 Cr.P.C. was also initiated in which possession of the petitioners was found. In these circumstances, Tahsildar submitted his report dated 15.5.2003 for cancellation of the patta, on which order dated 18.4.2006 was passed after hearing the respondent. There was an in-ordinate delay in filing the revision. However, delay has been illegally condoned and without considering the report that the land in dispute was not vacant on the date of allotment, the revision was illegally allowed only on the ground that there was delay in initiating proceeding for cancellation of patta. The recall application was filed on 24.1.2014. As the petitioners were not made parties in the revision nor any notice of the revision was served to them as such delay was liable to be condoned. The recall application was filed on 24.1.2014. As the petitioners were not made parties in the revision nor any notice of the revision was served to them as such delay was liable to be condoned. It is only when the allottees began to interfere in the right of the petitioners on the basis of the order passed by the Additional Commissioner dated 29.11.2013, then the petitioners came to know about the allotment and filed the recall application, but it has been rejected on the ground that the petitioners were not party, as such, their recall application is not maintainable. The petitioners are vitally interested in the land in dispute as such recall application on their behalf was maintainable. The petitioners are required to be heard by the Commissioner and the recall application moved by them was maintainable. 5. I have considered the arguments of Counsel for the parties and examined the record. 6. This Court in Surajdeo v. Board of Revenue and others , 1982 (8) ALR 24, Tarashankar v. Madan Mohan Pathak and others, 1993 (3) AWC 1658, Harish Chandra v. Din Dayal 1994 RD 133 (BR), Motilal and another v. State of U.P. and others , 2004 (96) RD 3 , M/s. Sood and Company v. Smt. Ghisa Devi and others , 2009 (108) RD 689 (DB), have held that if the right of any third party is affected by judgment and order of the Court, then the third party has also right to file the recall application. In M/S Sood's case (supra) Division Bench has held that even if the power of recall cannot be exercised under the provisions of Order IX CPC, but in order to prevent the miscarriage of justice, the powers under section 151 CPC can be invoked for recalling such an order on the application of third party. In view of the law laid down by this Court, the judgment of the Additional Commissioner, is contrary to the view taken by this Court and accordingly, it is liable to be set aside. 7. The Counsel for the petitioners submits that this Court by order dated 28.3.2014 directed the parties to maintain status quo and the same order be continued till the disposal of the recall application. As this Court is passing the final order, as such, the interim order cannot be continued. 7. The Counsel for the petitioners submits that this Court by order dated 28.3.2014 directed the parties to maintain status quo and the same order be continued till the disposal of the recall application. As this Court is passing the final order, as such, the interim order cannot be continued. However, it is open for the petitioner to file an application for interim order before the Commissioner, who shall pass appropriate order, either on 22.4.2014 or within fifteen days thereafter. In the result, the writ petition succeeds and is allowed. The order dated 12.3.2014, passed by Additional Commissioner (Executive), Saharanpur Division, Saharanpur, is set aside. The matter is remanded to Additional Commissioner (Executive), Saharanpur Division, Saharanpur to decide the recall application of the petitioners on merit, in accordance with law. Both the parties undertake to appear before the Additional Commissioner on 22.4.2014, who shall fix a date for hearing in the matter according to his convenience as well as with the consent of the parties and after summoning the record as well as taking evidence of the parties, decide it expeditiously, preferably within a period of three months thereafter.