- (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. The submission of the learned Counsel for the petitioners is that the revi sion could not have been dismissed in a cursory manner and the Board of Revenue has failed to take into consideration the fact that the Additional Commissioner has exceeded his jurisdiction in interfering with the order of the Collector. The Collector has remitted the matter to the Deputy Collector for disposing of the same in accordance with law and has also come to the conclu sion that the petitioners were not given any opportunity before expunging their names and the order in question was ex-parte and, therefore, the recall application was wrongly rejected. He also submits that the appeal was not delayed, but on account of the fact that a revision was filed against the order dated 15. 4. 1998, which was got with drawn subsequently and thereafter the ap peal was filed before the Collector. The petitioners, therefore, were entitled for the benefit of sections 5 and 14 of the Limita tion Act. The record reveals that the order dated 12. 10. 1990 was passed ex-parts and in fact the recorded tenure holders were not given any opportunity of hearing and without hearing them their names were expunged. The petitioners came to know about the passing of the order in the month of October, 1994 and an application for re call of the order dated 12. 10. 1990 was immediately moved on 16. 10. 1994 and even from the finding of the Collector it is estab lished that the petitioners were never heard and their valuable right has been taken away in the form of land recorded in their names on the basis of the sale deed. Learned Counsel for the opposite party No. 4 submits that the Board of Revenue has committed no illegality and the matter has been remitted to the Collec tor to hear and decide the same in accor dance with law after recording a specific finding with regard to the maintainability of appeal and condonation of delay. He further submits that the Collector could not have recorded any finding on the merit of the matter and in fact the Collector has not discussed the facts, which were necessary for condoning the delay and in absence of any finding to that effect the order of the Collector is bad in law. The Additional Commissioner has remitted, the matter to the Collector to hear and dispose of the same for considering the question of maintainability and the genuineness of rea sons for condonation of delay, which find ing he has not recorded in his impugned order. Learned Counsel has further tired to give force to his arguments by submitting that the petitioners have remedy of filing suit and the writ petition against the pro ceedings under section 33/39 of the Land Revenue Act would not be maintainable. It has also been submitted that the Collector has not given any finding regarding the delay in moving the recall application and so the order of the Collector suffers from manifest illegality.
(3.) I have heard the learned Counsel for the parties and gone through the record. The opposite party No. 4 moved an application on 4. 5. 1988 with the prayer that the plot No. 138 measuring 72 decimal in which she was residing along with the land appurtenant may be recorded as abadi as she was residing in the said premises since the year 1965 and the revenue authorities have not corrected the said er ror as was required from them. The Naib Tehsildar submitted a report on the said application of the opposite party No. 4 on 3. 5. 1989, wherein it was stated that the opposite party No. 4 was living on the plot in dispute for the last 20 years and no agricul tural activity was being carried on the said land. It was also stated in the said report that the opposite party No. 4 was in pos session over the entire land, but her pos session was recorded only on 21 decimal and hence the plot in question may be de clared as abadi. The Sub-Divisional Officer (South), Varanasi heard the matter and re jected the application of the opposite party No. 4 by means of order dated 8. 5. 1989. The opposite party No. 4 thereafter on 10. 5. 1989 moved a recall application stating therein that she was not heard when the impugned order was passed and, therefore, the ex-parte order may be recalled. The Sub-Divisional Officer (South) by means of order dated 7. 7. 1990 recalled the ex-parte order dated 8. 5. 1989. On 16. 8. 1990 an ap plication was moved by the opposite party No. 4 that from the report of the Naib Tehsildar her possession was established and, therefore, a case may be registered under section 33/39 of the U. P. Land Reve nue Act and the names of other persons recorded in the said plot may be expunged. Notices were issued to the petitioners and thereafter, as alleged, publication was also made in the newspaper on 5. 10. 1990, but the petitioners could not know about the said publication" as they were not use to of reading newspaper. The Deputy Collector proceeded ex-parte and passed an order on 12. 10. 1990 expunging the names of the pe titioners from the said plot and the name of opposite party No. 4 was recorded as bhu-midhar and further order was also passed that the plot in question may be recorded as abadi in khasra. Smt. Usha Singh came to know about the passing of the said order in the month of October, 1994 and imme diately she moved an application on 26. 10. 1994 alleging therein that no notice was served upon her at any point of time regarding the pendency of the proceedings and she was not use to of reading newspa per and, therefore, the ex-parte order dated 12. 10. 1990 may be recalled. She also filed an application under section 5 of the Limi tation Act along with an affidavit explain ing the delay in moving the recall applica tion. An objection was filed by the opposite party No. 4 to the said application for recall on 26. 5. 1995. The Deputy Collector (South) heard the parties and rejected the applica tion of Smt. Usha Singh on 15. 4. 1998. Against this order Smt. Usha Singh pre ferred Revision No. III of 1998, on 12. 5. 1998 before the Additional Commis sioner. Thereafter an application was moved before the Additional Commis sioner for withdrawal of the revision on 23. 11. 1998 finding that the revision was not maintainable against the impugned order dated 12. 10. 1990. The revision was dis missed as withdrawn on 23. 2. 1999 and an application for obtaining the copy of the said order was moved on 8. 3. 1999 and the copy of the order was received by the peti tioners on 17. 3. 1999. The petitioners filed an appeal on 19. 3. 1999 before the Colelctor against the orders dated 15. 4. 1998 and 12. 10. 1990. The petitioners also claimed the benefit of sections 5 and 14 of the Limita tion Act and stated that if any delay has occurred, then it has occurred on the basis of the wrong advice given by the Counsel, on a Court of which the revision was filed in the Court of Additional Commissioner though the same was not maintainable. The Collector heard the matter on the question of limitation and the recall application and came to the conclusion that the petitioners were entitled for the benefit of sections 5 and 14 of the Limitation Act and the delay has been reasonably explained as the peti tioners have specifically stated that they acquired knowledge in the month of Octo ber, 1994 and thereafter they moved an application on 26. 10. 1994 immediately for recalling the orders dated 15. 4. 1998 and 12. 10. 1990. The condonation of delay has been claimed only on account of the fact that the petitioners could not acquire any knowledge regarding the pendency of the proceedings.;