SAROJ SINGH Vs. BOARD OF REVENUE LUCKNOW

JUDGEMENT

(1.) S. S. Chauhan, J. This writ petition has been filed challenging the judgment and orders dated 7. 3. 2005 and 13. 1. 2005 passed by the opposite parties No. 1 and 2, by means of which the order of the Collec tor passed in appeal dated 18. 8. 1999 has been set aside and the Collector has been directed to hear and decide the restoration application and condonation of delay ap plication and thereafter if he thinks proper, may decide the appeal on merit as well.

(2.) THE facts giving rise to the present petition are that opposite party No. 4 mossed an application on 4. 5. 1988 with the prayer that plot No. 138 measuring 72 decimal in which she was residing along with the land appurtenant in the form of hata may be recorded as abadi as she was residing in the said premises from the year 1935 and by mistake ef the revenue authorities the said error has crept in. She has also stated that there was one Well on the said land of the house, which has not been shown in the settlement map. She, therefore, prayed that according to the spot position, correction be made in the map regarding house, Well, boundary gate and lawn (hata ). THE Naib Tehsildar submitted a report on 3. 5. 1989, in which it was stated that house, Well, boundary wall of the op posite party No. 4 was existing for the last 20 years and no agricultural activity was being done on the said land. THE opposite party No. 4 was in possession over the en tire land, but her possession has been re corded only on 21 decimal. THErefore, the land in question may be declared as abadi. THE then Sub-Divisional Officer (South), Varanasi heard the matter and by means of order dated 8. 5. 1989 rejected the applica tion of the opposite party No. 4 finding it as not maintainable. THE opposite party No. 4 thereafter on 10. 5. 1989 moved a recall ap plication, inter alia, stating therein that she was not heard before the impugned order was passed and, therefore, the said ex-parte order may be recalled and after hearing her, this order may be passed. THE then Sub-Divisional Officer by means of order dated 7. 7. 1990 recalled the ex-parte order dated 8. 5. 1969. On 16. 8. 1990 an ap plication was moved by opposite party No. 4 that from the report of the Naib Tehsildar her possession was established and, therefore, under section 33/39 of the U. P. Land Revenue Act, the case may be registered and the name of the other per sons may be expunged. THE petitioners were issued notice and thereafter it is al leged that publication was made in the newspapers as well on 5. 10. 1990, but the petitioners did not put in their appearance, whereupon ex-parte proceedings were drawn and ex-parte order was passed on 12. 10. 1990 expunging the names of the pe titioners from the said plot and recording the name of opposite party No. 4 as bhu-midhar and further order was passed for recording the plot in question as abadi in the Khasra. Agamst this order Smt. Usha Singh through her General Power of Attor ney, Ganpat Singh moved an application on 26. 10. 1994 alleging therein that the no tices were never served upon the petition ers regarding the said proceedings and they were not used to reading of newspa pers and they did not receive any informa tion, therefore, the ex-parte order dated 12. 10. 1990 may be recalled. An application under section 5 of the Limitation Act along with the affidavit was also moved for con doning the delay in moving the application for recall of the order. THE opposite party No. 4 filed an objection on 26. 5. 1995 to the recall application of Smt. Usha Singh. THE Deputy Collector (South) heard the parties and rejected the recall application of Smt. Usha Singh on 15. 4. 1998. Against this order Smt. Usha Singh preferred a revision No. III of 1998 on 12. 5. 1998 before the Additional Commissioner. THEreafter an appli cation was moved before the Additional Commissioner for withdrawal of the revi sion on 23. 11. 1998 on finding that the revision was not maintainable against the said order and the revision was withdrawn on 23. 2. 1999. An application for obtaining the copy was moved on 8. 3. 1999 and the copy was received by the petitioners on 17. 3. 1999 and thereafter on 19. 3. 1999 first appeal was filed against the orders dated 15. 4. 1998 and 12. 10. 1990 before the Collec tor with the prayer that the appellant may be given the benefit of sections 5 and 14 of the Limitation Act and if any delay has oc curred that has occurred on the wrong ad vice of the Counsel. THE Collector heard the matter on the question of limitation and came to the conclusion that the appeal was time barred and the petitioners were enti tled for the benefit of sections 5 and 14 of the Limitation Act and the delay has been reasonably explained. Apart from the above, the Collector set aside the ex-parte order dated 12. 10. 1990 and the order dated 15. 4. 1998 by means of which the recall application of the petitioners was rejected and remitted the matter to the Deputy Collector to decide the same in accordance with law after considering the merit and de-meirt of the matter which certain obser vations in the impugned order dated 18. 8. 1999. THE opposite party No. 4 filed a second appeal before the Additional Commissioner, inter alia, on the ground that the Collector has recorded a finding on the merit, which was not warranted under law and the Collector could not have con doned the delay without recording a spe cific finding regarding the explanation of delay submitted by the petitioners. THE Additional Commissioner by means of or der dated 13. 1. 2005 allowed the second appeal and set aside the order of the Col lector mainly on the ground that if the matter was remitted to the Deputy Collec tor for deciding the same in accordance with law, then there was no occasion to record finding regarding the merit of the matter. It was also held that the Collector should have first decided the question of limitation and maintainability of the appeal and thereafter could have decided on merit. THE petitioners filed a revision be fore the Board of Revenue and the Board of Revenue also rejected the revision in a cur sory manner reiterating the order of the Additional Commissioner.

(3.) I have heard the learned Counsel for the parties and gone through the record.