UMARDEEN Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Rohit Singh for the petitioners and Sri V.K. Upadhyay for Ram Chandra, contesting respondent -6. In the facts of the case, Sri V.K. Upadhyay does not propose to file any Counter Affidavit. With the consent of the parties, the writ petition is decided finally. This writ petition has been filed against the order of Additional Commissioner (Executive), Saharanpur Division, Saharanpur dated 12.3.2014, by which the recall application moved by the petitioners has been rejected on the ground that the petitioners were not party in the proceeding, as such, they have no right to file the recall application.

(2.) IT is stated that Land Management Committee took proceedings for allotment of plots 2199, 2362, 2368 and 2880 and resolution for allotment of these plots were passed on 1.4.1984, which was approved on 19.4.1984. In this allotment plot 2362 was allotted to Ram Chandra. Later on Tahsildar Shamli submitted a report dated 15.5.2003 that there was an old abadi on plot 2362 as such it is not possible to give possession over this plot to the allottee. As such he recommended to cancel patta of Ram Chandra. On the aforesaid report, the Collector took cognizance and registered the case under section 198(4) of U.P. Act No. 1 of 1951 for cancellation of patta. Ram Chandra contested the case. Additional Collector, by order dated 28.4.2006 held that as per the report of Tahsildar there was an old abadi on plot 2362 as such it was not possible to give possession over this plot to the allottee. On these findings patta of Ram Chandra of plot 2362 (new plot 1639) was canceled.

(3.) 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. 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.