Ayub Ali vs State Of Uttarakhand & Others

Sharad Kumar Sharma, J

There was a proceedings drawn under Section 28 of the Land Revenue Act by the private respondent to the present writ petition, which was registered as Case No. 5217 of 2011-12 'Sarjeet Kaur vs. State of Uttarakhand and Others', in which the petitioner has not been party to the proceedings. Whereby, she has sought a prayer for correction of the order in pursuance to a decision, which has already been taken in their favour by the Hon'ble Apex Court at the behest of the dismissal of the writ petition, which was preferred by the petitioner. The relief sought in the proceedings under Section 28 was as under:

"अतः श्रीमानजी से सादर प्रार्थना है कि उपरोक्त तथ्यों के प्रकाश में मां0 सं0 736 की आकृति चकबन्दी नक्शे में चकबन्दी से पूर्व जिस तरह काशीपुर, जसपुर राष्ट्रीय मार्ग के साथ मां0 सं0 734 क साथ पूर्व पश्चिम बनी हुई थी। इसी तरह संशोधित कर नक्शा दुरस्त करने के आदेश पारित किये जाये तथा वर्तमान नक्शे में दर्शायी गयी मां0 सं0 736 की आकृति उत्तर-दक्षिण समाप्त करने के आदेश पारित करने की कृपा की जाये। शपथ पत्र प्रार्थना पत्र के साथ संलग्न है।"

However, we are not concerned at this stage with regards to the implications, which will be flowing from the judgment dated 25.09.2013 as rendered by this Court in Writ Petition No. (M/S) 420 of 2006 'Ayub Ali vs. Deputy Director Consolidation /Additional District Magistrate Udham Singh Nagar & Others', which was the proceedings drawn under Section 53 of the U.P. Consolidation of Holding Act, that judgment will be having an altogether an independent bearing then to the proceedings, which was preferred by the respondent no. 4 under Section 28 by the respondent had been decided by the Court of Collector by an order dated 26.11.2012.

The propriety or the intricacies of the determination of inter se regarding the right flowing from the order dated 26.11.2012 is yet again not being disturbed by this Court for the reason that the consideration, which is being raised in the present writ petition by the petitioner is to the effect that the petitioner has contended himself to be aggrieved against an order passed under Section 28 on 26.11.2012 on the premise that he is being effected because in the proceedings under Section 28 drawn by respondent no. 4, he was neither made as a party to the proceedings under Section 28 and quite obviously nor he was heard. In order to seek recall of the said ex parte order dated 26.11.2012 the petitioner has filed an application under Section 201 of the Land Revenue Act on 06.11.2012 seeking recall of the order passed in Case No. 52/17 of 2011-12 'Sarjeet Kaur vs. State of Uttarakhand'. On the said application of petitioner filed under Section 201, the Collector passed an order of status quo, the respondent no. 4 filed her objection to the application of petitioner on 23.01.2013, and Court had fixed 13.02.2013 for considering application of petitioner filed under Section 201 of the Act. When the application under Section 201 preferred by the petitioner came up for consideration before the Court of Collector, the petitioner was unable to put in appearance and consequently, the application preferred by the petitioner under Section 201 was rejected ex parte without hearing him.

The grievance of the petitioner is that since it was a recall application preferred by him under Section 201, he ought to be heard as against the order, which he was seeking to recall the order dated 26.11.2012, passed in the proceedings under Section 28, as against the rejection of the recall application in his absence by the impugned order dated 13.02.2013. The petitioner has preferred an Appeal under Section 210 before the Commissioner, which was registered as Revenue Appeal No. 26 of 2013-14 'Ayub Ali vs. Sarjeet Kaur & Others'. Consequently, by the judgment dated 22.05.2015 impugned in the present writ petition the order dated 30.02.2013 rejecting the application of the petitioner under Section 201 seeking recall of the order passed under Section 28 dated 26.11.2012 was affirmed and the Appeal was dismissed.

This Court is of the opinion that the absence of the petitioner when the application under Section 201 came for consideration before the Collector ought to have been considered in a pragmatic view in relation to the absence of the petitioner and for the reason which has been assigned by him in the recall application seeking to recall the order dated 13.02.2013.

Even otherwise also, this court is of the view that the application under Section 201 ought to have been decided on the merits after providing an opportunity to the petitioner of being heard. Hence, on that limited account itself that the application under Section 201 has been decided in the absence of the petitioner, this Court without expressing any opinion on the merits of the order passed under Section 28 or the impact of the proceedings exchanged under Section 53 of the Consolidation of Holding Act as settled by the judgment rendered by this Court on 25.09.2013 and leaving all the defense to be taken by the respondent to the application under Section 201, which is to be considered by the Collector in pursuance to this order. The order of rejecting the application under Section 201 dated 13.02.2013 and its affirmation by the appellate order dated 22.05.2015 are only set aside and the Collector is directed to reconsider the application under Section 201 preferred by the petitioner on its own merits after giving an opportunity of hearing to the respondent no. 4 herein.

It is made clear that this Court has not expressed any opinion on merits of the claim of the parties or the implications, which would be flowing from the earlier decision, which has been rendered by this Court in the writ petition. The application under Section 201 will itself be decided exclusively on its own merits within a period of three months from the date of production of certified copy of this order.

Subject to above observation, writ petition is allowed. Orders dated 13.02.2013 and 22.05.2015 rejecting the recall application under Section 201 of Land Revenue Act, 1901, is set aside. The Collector is directed to decide the application as fresh on merits.

However, there would be no order as to cost.