Court No. 28
Civil Misc. Writ Petition No. 41195 of 2006
Kamruddin
Vs.
Jabardin and others.
Hon'ble Sanjay Misra,J.
Heard Sri Sumit Daga, learned counsel for the petitioner, learned
Standing Counsel for the State respondents and Sri Mohd. Yusuf, learned
counsel for the respondents no. 3 to 6. The cause list has been revised. None
appears on behalf of the other respondents.
Counter and rejoinder affidavits have been exchanged between the
petitioner and the respondents no.3 to 7 and the same are available on
record.
The petitioner is aggrieved by the order dated 3.7.2006 (Annexure-15 to
the writ petition) passed by the Additional Commissioner, Saharanpur Division
Saharanpur in Revision No. 68 of 2005-06, whereby the revision filed by the
respondents no. 3 to 6 has been allowed and the order dated 27.1.2006
passed by the Assistant Collector, Muzaffar Nagar has been set aside.
Sri Daga, learned counsel for the petitioner submits that in proceeding
under Section 176 of the U.P.Z.A.& L.R. Act, kurras have been finally
prepared and approved. However, on an application made by the respondents
no.3 to 6 along with an application for condonation of delay, the Assistant
Collector passed the order dated 27.1.2006 rejecting the same and
maintaining the earlier order dated 29.2.2000. According to learned counsel
for the petitioner, the respondents no. 3 to 6 preferred a Revision No. 68 of
2005-06 under Section 333 of the U.P.Z.A. & L.R. Act and the Revisional
Court has set aside the order dated 27.1.2006 without issuance of notice to
the petitioner and directed the Assistant Collector to decide the proceeding
under Section 178 of the U.P.Z.A. & L.R. Act on its merits. He states that
when the application for condonation of delay and the application for recall of
the final order passed in the proceeding for division of Bhumidhari have been
rejected by the Assistant Collector the Revisional Court ought to have issued
notice to the petitioner and granted him an opportunity of hearing and
secondly the Revisioal Court could have set aside the order of the Assistant
Collector but it should have required the Assistant Collector to reconsider the
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reason for condoning the delay for recall of the earlier exparte order.
Sri Mohd. Yusuf, learned counsel for the respondents no. 3 to 6 has
submitted that the respondents no. 3 to 6 were the co-sharer of the land in
question by virtue of sale-deed and in the proceeding under Section 176 of
the U.P.Z.A. & L.R. Act, they were not made party and the petitioner obtained
an exparte order for division of Bhumidhari and therefore, the Assistant
Collector has rightly allowed the condonation of delay application and recall
application given by the respondents no. 3 to 6 and had required the
proceeding under Sections 176 and 178 of the U.P.Z.A. & L.R. Act to be re-
decided on its merits.
Having considered the submissions of learned counsel for the parties
and perused the record, insofar as the order dated 27.1.2006 passed by the
Assistant Collector is concerned, the same is not under challenged in this writ
petition and therefore, no opinion can be expressed thereupon.
Insofar as the impugned order dated 3.7.2006 passed by the Revisional
Court is concerned, there is no denial by the respondents that the same was
passed without notice to the petitioner and without giving him opportunity to
put forward his case in support of the order dated 27.1.2006 passed by the
Assistant Collector.
Since there is no denial of the aforesaid submission nor the impugned
order passed by the Additional Commissioner speaks of any notice of hearing
to the petitioner the impugned order appears to have been passed behind the
back of the petitioner, hence it cannot be sustained.
For the aforesaid reasons, the impugned order dated 3.7.2006
(Annexure-15 to the writ petition) passed by the Additional Commissioner,
Saharanpur Division Saharanpur in Revision No. 68 of 2005-06 is set aside
and the court below is required to decide the revision after giving opportunity
to the parties and in accordance with law.
The writ petition stands allowed as above.
No order is passed as to costs.
Dated:9.8.2010
Lbm/-