- (1.) HON'ble B.K. Narayana, JHeard Sri Vishal Khandelwal learned counsel for the petitioner and the learned Standing Counsel appearing on behalf of respondent Nos. 1,2 and 3, Sri V.K. Singh appeared on behalf of respondent No. 4 and Sri K.P. Singh for respondent No. 5.
(2.) THIS writ petition has been filed by the petitioner for quashing the orders dated 11/10/2006 and 18/3/2004 passed by the Addl. Commissioner Agra (Annexure Nos. 5 and 3) and the order dated 29/4/2000 (Annexure No. 1 to the writ petition) passed by the Additional Collector (City), Aligarh. Brief facts of the case as stated in the writ petition are that allotment of land was made in favour of the petitioner on 20/9/1992 for abadi construction. The respondent No. 4 filed an application before the respondent No. 2 for cancellation of allotment made in his favour. On the application of the respondent No. 4 the respondent No. 2 cancelled the allotment made in favour of the petitioners vide his order dated 29/4/2000. The said order was challenged by the petitioner by filing a revision before the Commissioner, Agra Division, Agra, which was numbered as Revision No. 49 of 2000 and transferred for disposal before the respondent No. 1 and allowed by him by order dated 28/5/2002 where by the order dated 29.4.2000 passed by the respondent No. 2 cancelling the allotment made in favour of the petitioners was set aside. It appears that the respondent No. 4 moved an application before the respondent No. 2 for restoration of revision No. 49 of 2000 and recall of order dated 28/5/2002 on 7/5/2003 which was allowed by him by his order dated 18/3/2004 without issuing any notice to the petitioners and without affording him any opportunity of hearing. By the said order the revision No. 49 of 2000 was restored to its original number and summons were issued to the petitioners fixing 19.5.2004 for hearing of the said revision. Upon being served with the summons the petitioners appeared before the respondent No. 2 on 19.5.2004 and got knowledge of the order dated 16.3.2004 for the first time on 19.5.2004. Petitioners on the same date applied before respondent No. 2 for recall of the order dated 18.3.2004 alongwith an application for condonation of delay under Section 5 of the Limitation Act. By the impugned order the respondent No. 2 dismissed the petitioners delay condonation application as well as the revision No. 49 of 2000 as not maintainable. Learned counsel for the petitioners submitted that the reasons given in the impugned order for rejecting the Section 5 application are totally erroneous and unsustainable as the petitioner had sufficiently explained the reasons for delay in moving the recall application. Learned counsel for the petitioner further submitted that the respondent No. 1 clearly fell into error in holding that the revision preferred by the petitioners against the order of cancellation of allotment made in his favour, was not maintainable, although an order passed under Rule 115-P of the U.P.Z.A. and L.R. Act 1950 (hereinafter referred to as 'the Act') is clearly revisable as held by this Court in Wahajuddin v. Board of Revenue and others, 2002(1) AWC 833. Learned counsel for the petitioners lastly submitted that the reason given by the respondent No. 2 in the impugned order for holding that the revision against an order passed under the Rule 115-P of the U.P.Z.A. and L,R. Rules was not maintainable, is totally misconceived and erroneous. Learned Standing Counsel appearing for the respondent Nos. 1,2 and 3 submitted that the impugned orders which are supported by cogent reasons, do not suffer from any illegality or infirmity warranting any interference under Article 226 of Constitution of India.
(3.) I have examined the submissions made by the learned counsel for the parties and have also perused the record. The facts which are not in dispute are that the allotment of land made in favour of the petitioners for abadi construction was cancelled by the respondent No. 2 vide order dated 29.4.2000 which was challenged by the petitioner in Revision No. 49 of 2000 before the Commissioner, Agra Division, Agra which was transferred for disposal before the Addl. Commissioner, Agra and allowed by him by order dated 28.5.2002. Order dated 28/5/2002 was recalled and the Revision No. 49 of 2000 restored to its original number on the application of respondent No. 4 by the respondent No. 2 vide his order dated 18/3/2004 without issuing any notice to the petitioners and without affording them any opportunity of hearing. Notice was issued to the petitioners fixing 19/5/2004 for hearing of the Revision. The petitioners for the first time became aware of the order dated 18/3/2004, whereupon the petitioners moved an application for recalling.the order dated 18/3/2004. Copies of recall and delay condonation applications have been filed as Annexure Nos. 4 and 5 to the writ petition). In paragraph 2 of the delay condonation application, the petitioners have categorically stated that prior to 19/5/2004 they had no knowledge of the order dated 18/3/2004 as the said order had been passed without issuing notice to the petitioners and hence the delay in moving the recall application was liable to be condoned. A perusal of the impugned order shows that the explanation of delay in moving the recall application furnished by the petitioners, has been rejected by the respondent No. 1 by a single sentence that the same was not satisfactory. The order does not contain any reason as to why the respondent No. 1 did not find petitioners' explanation for delay in moving the recall application satisfactory. Such consideration of explanation, in my opinion is no consideration in the eyes of law and cannot be sustained. Record of the case shows that the order dated 25.5.2002 by which the respondent No. 1 had earlier allowed the petitioners' revision was recalled by the respondent No. 1 without notice to the petitioners. Hence the petitioners' version that they for the first time became aware of the order dated 18.3.2007 when summons for hearing of Revision No. 49 of 2000 were served upon them cannot be doubted or disbelieved. There is nothing on record which may indicate that the petitioners were noticed by the respondent No. 1 prior to passing of order dated 18.3.2007. Thus, it is clear that the respondent No. 1 manifestly erred in rejecting the petitioners' application for condoning the delay in moving the recall application and the finding recorded by the respondent No. 1 in the impugned order that the petitioners failed to explain the delay in moving the recall application satisfactorily is erroneous and is accordingly set aside. Reasons given by the petitioners for delay in moving the recall application are satisfactory and delay in moving the recall application is condoned.;