BHOPAL S/O SRI SHIBBAN Vs. STATE OF UTTARAKHAND THROUGH COLLECTOR HARIDWAR
HIGH COURT OF UTTARAKHAND
STATE OF UTTARAKHAND
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B.S.VERMA, J. -
(1.) HEARD. Mr. B.B. Sharma, and Mr. R.K. Gupta, Advocates, appearing on behalf of the petitioner and Mr. A.K. Bansal, Standing Counsel on behalf of the respondents.
(2.) BY means of this petition the petitioner has sought a writ in the nature of mandamus commanding the respondent Nos. 1 to 4 to record the land Khasra Nos. 225 area 0.0080 hectare, 226 area 0.0220 heceature and Khasra No. 230 area 0.1630 hectare situated at village Budhpur, Pargana Manglore, Tehsil Roorkee, District Haridwar in the name of petitioner/purchaser Bhopal S/o Shibban.
Brief facts of the case giving rise to the writ petition, according to petitioner, are that the petitioner has purchased the land in question by way of sale deed. Vide order dated 11-2-2005 Naib Tehsildar Manglore had allowed the mutation application and issued direction that the land be mutated in the name of Bhopal in place of Om Singh. On 9-4-2005 the Naib Tehsildar Manglore on his own motion set aside the mutation order dated 11-2-2005, on the ground that the sale deed dated 4-1-2005 is erroneous hence for vesting the land in State Government, the file be sent to Collector Haridwar, for initiating proceeding U/S 166/167 of U.P. Zamidari Abolition and Land Reforms Act.
Learned counsel appearing on behalf of the petitioner has vehemently argued that the earlier order dated 11-2-2005, was recalled without giving opportunity of hearing to the petitioner.
(3.) SECTION 202 of U.P. Land Revenue Act, 1901, empowers the Court or Officer who has passed the order to correct any error or omission either of his own motion or on the application of a party. The Section 202 U.P. Land Revenue Act, 1901 (hereinafter referred as 'the Act') is quoted below:- " 202. Correction of error or omission.- Any court or officer by whom an order has been passed in any proceeding under this Act, may, within ninety days of such order, either of his own motion or on the application of a party, correct any error or omission, not affecting a material part of the case, after such notice to the parties as may be necessary." 5. According to the petitioner he was not given notice before recalling the earlier order. Section 201 of the Act, provides that no appeal shall lie from the orders passed exparte or by default, but opportunity of rehearing may be given on proof of good cause for non-appearance. In the instant case according to petitioner, the notice was not issued to the petitioner, before recalling the earlier order and this fact can be verified only by going through the concerned file and in writ jurisdiction the disputed question of fact cannot be scrutinized. If the order has been passed after giving notice to the petitioner, then the petitioner has alternate remedy to file appeal U/S 210 of the Act. If the petitioner has not been issued notice and the order is ex parte in that situation petitioner has also opportunity of re-hearing U/S 201 of the Act.
So far as the proceeding U/S 167 of the U.P. Zamindari Abolition and Land Reforms Act, is concerned, according to petitioner the proceedings U/S 167 are pending before the Collector. It appears by a perusal of Khautani that Om Singh seller of the land is recorded Bhumidhar with non-transferable rights and it seems that the earlier order dated 11-2-2005 might have been passed on the assumption that Om Singh was Bhumidhar of the land with transferable rights. To verify this fact, evidence is required. In writ jurisdiction disputed question whether vender Om Singh was Bhumidhar with transferable rights or with non-transferable rights can not be scrutinized. However the Khautani shows that Om Singh was Bhumidhar with non-transferable rights and if the transaction has been made to the petitioner in contravention of the Act, the same shall be void and the consequence of said transaction shall be that the land shall be deemed to have vested in the State Government free from all encumbrances from the date of transfer U/S 167 (1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and under sub-section (2) of Section 167 the Collector has power to take possession over the such land vested in State Government under sub- section (1) of Section 167 and to direct the person occupying said land or property to be evicted.;
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