Kishori and Another vs State of Uttarakhand and Others

B.S. Verma, J.—Heard learned Counsel for the Petitioners and perused the record.

2 .By means of this writ petition, the Petitioners have sought a writ in the nature of certiorari quashing the impugned order dated 1-3-1997 (Annexure-1) and subsequent order dated 19-10-2007 passed by Survey Naib Tehsildar Udham Singh Nagar (Annexure-9), order dated 11-9-2009 passed by Assistant Record Officer (Annexure 11 to the petition) and the order dated 22-11-2010 passed by the Collector/Record Officer Udham Singh Nagar (Annexure-14 to the petition).

According to the Petitioners, the delay in filing the recall application u/s 201 of the U.P. Land Revenue Act was of about 4 months and the same was properly explained. Even though the application was rejected by order dated 19-10-2007 by Survey Naib Tehsildar without any rhyme and reason. Against the said order, an appeal was preferred before the Assistant Record Officer (A.R.O.). The A.R.O. has committed a manifest error of law by considering the merit of the case and not of recall application and passed an order on merit by applying wrong proposition of law.

It has been contended by the learned Counsel for the Petitioners that Sri Sudanno, tenure holder died in the year 1996 and the amendment in Section 171(2) of the U.P. Zamindari Abolition and Land Reforms Act was made in the year 2004 by Amending Act No. 27 of 2004. The amendment was not made effective retrospectively, therefore, the learned A.R.O. has committed an error of law by applying the provisions of amended Act and dismissed the appeal on merit.

In appeal, the learned Record Officer/Collector has also committed the same error.

Prima facie by a perusal of the record, it appears that Sudanno died in the year 1996 and the court below has observed that the proceeding of the case was in the knowledge of the Petitioners since their son was contesting the case on the basis of a will. Learned Counsel for the Petitioners submitted that they were not a party to that proceeding. When the order came to their notice, they filed the recall application.

It is pertinent to mention here that liberty to file recall application was given by this Court vide order dated 20-12-2006 in Writ Petition (M/S) No. 1816 of 2006, wherein the order dated 13-7-2006 passed in Revision No. 52/41 of 2001-2002 Sehdev v. Sumitra and Ors. was assailed by the Petitioners. The trial court did not take note of the order of this Court whereby liberty was given to the Petitioners to move recall application.

In the above facts and circumstances, as an interim measure, the operation of the impugned orders shall remain stayed till the next date of listing.

(Stay Application No. 1198 of 2011 is disposed of.)

Notices on behalf of Respondent Nos. 1 to 3 are accepted by Mr. N.P. Sah, Standing Counsel.

Issue notice to Respondent Nos. 4 to 7.

The Respondents may file counter affidavit within a period of four weeks.

List thereafter.