Uttarakhand High Court
Chander vs State Of Uttarakhand & Others on 12 March, 2021
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No.777 of 2008 ( M/S)
Chander ....Petitioner
Vs.
State of Uttarakhand & others ... Respondents
Advocate : Mr. Rajendra Dobhal, Senior Advocate for the petitioner.
Mr. R.C. Arya, Standing Counsel for the State of Uttarakhand.
Hon'ble Sharad Kumar Sharma, J.
The petitioner has filed this writ petition praying for quashing
of the order dated 04.07.2007, as well as the revisional courts order dated
25.03.2008, which has been passed by respondent nos.3 and 2, respectively
to the writ petition.
2. The petitioner contends that he is beneficiary of an allotment
which was made of Khasra No.170/2 having an area of 0.082 hectares in
his favour, by virtue of a resolution passed by the Land Management
Committee on 08.01.1997, in relation to a land, which was admittedly
otherwise was vested with the Gaon Sabha and recorded in the revenue
record as "Gohar". Subsequently before resorting to the allotment process,
the revenue entries were altered and changed and land was recorded as
"Banjar".
3. The petitioner later had filed an application, that since he being
an allottee of the land, he may be granted benefit of Section 122-B(4)(f) of
Zamindari Abolition & Land Reforms Act. As a consequence of the
aforesaid application, the matter was proceeded at the stage of Up
Ziladhikari/Assistant Collector 1st Class, Laksar, who had proceeded to
pass an order on 05.09.1997, directing to change the revenue entries from
"Gohar" to "Banjar" in relation to the land, which was allotted to the
petitioner in pursuance to the resolution of the Land Management
Committee dated 28.01.1997.
4. The grievance of the petitioner is that after the said conversion
in the revenue entry being granted on 05.09.1997, the DGC revenue has
filed an application for recall of the said order on 05.09.1997, by filing the
same on 01.06.2007 almost after ten years of the date of passing of the
order. Apparently, as per record itself the said application dated
01.06.2007, for recall was supported with a delay condonation application.
On the said application for recall, which was supported with delay
condonation application, in fact he was never noticed nor he was heard and
without providing any opportunity of hearing to the petitioner, by one of
the orders impugned dated 04.07.2007, the order of conversion dated
05.09.1997, has been recalled.
5. Being aggrieved against the said order, the petitioner had
preferred a revision before the court of Additional Commissioner, Garhwal
Mandal, Camp, being Revision No.51 of 2006/2007, Chander vs. State of
Uttarakhand and the same too stood dismissed by the revisional court vide
its judgment dated 25.03.2008.
6. After having heard learned counsel for the parties and looking
to the nature of controversy, as it has been argued by the counsel for the
petitioner, at this stage for the reasons to be recorded hereinafter, this Court
is refraining itself to make any observation pertaining to the creation of
right in favour of the petitioner by virtue of an allotment of land, which
was recorded as "Gohar" because that would be altogether, an independent
aspect which is required to be considered, if at all permissible under law.
7. In my judicial scrutiny to the impugned order dated
04.07.2007, and that is taken into consideration itself, I am not in
agreement with the manner in which the Assistant Collector 1st Class, has
passed the order in Case No.11 of 1996/97; recalling an order of
05.09.1997, on a limited context I am interfering for the reason that once
the application itself, which was preferred by the respondent after 10 years
of passing of an order and once it was supported with the delay
condonation application, then it was incumbent on the court of Assistant
Collector, that it ought to have first consider the propriety of delay
condonation and then only he could have proceeded to venture further and
pass an order of allowing the recall application and consequently the order
dated 05.09.1997.
8. On this limited count itself that since the order dated
04.07.2007, has been ventured into to be decided by the Assistant
Collector 1st Class without even condoning the delay of 10 years, which
has chanced in filing the recall application as no orders was passed on it,
and delay was never condoned, the order is set aside and consequently, the
revisional court's order too would stand quashed. The matter is remitted
back to the court of Assistant Collector 1st Class, to reconsider the
application for recall, as well as delay condnation application and pass a
reasoned order after providing a due and adequate opportunity to the
petitioner and any other effect party. The exercise so directed would be
completed by the Assistant Collector 1st Class within a period of two
months, from the date of production of certified copy of this judgment.
9. The Registry is accordingly, directed to inform the Assistant
Collector 1st Class, Laksar. Accordingly, the writ petition stands allowed.
(Sharad Kumar Sharma, J.)
12.03.2021
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