Allowed

Shakil and Ors. v. D.D.C and Ors.

Uttarakhand HC28 Jul 2017WPMS/1474/2006

Case brief

AI extract

What is this about?

The High Court allowed a writ petition setting aside a revisional order that upheld a previous recall of consolidation awards. The court held the recall proceedings were invalid as the petitioner was not heard, the recall applications were not maintainable for orders on merits, and the limitation objection was misconceived.

What did the court decide?

The order dated 14.07.2006 and the order dated 25.05.2000 were set aside. The court of Consolidation Officer is directed to decide the recall application afresh after providing an opportunity to the p

Shakil and Ors. Vs D.D.C and Ors. — Land Acquisition | Uttarakhand HC (2017)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Writ Petition (M/S) No. 1474 of 2006

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Skakil and others ...….……Petitioners

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Versus

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District Deputy Director of Conolidatioin/ Collector Haridwar and others .

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. ……. Respondents

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Present: Mr. Mahavir S. Tyagi, Advocate for the petitioners. Mr. Pankaj Purohit, Deputy Advocate General along with Mr. Tarun Lakhera, Brief Holder for the State.

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Hon’ble Sharad Kumar Sharma, J. (Oral)

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Before the arguments could start, Mr. Tapan Singh, Advocate appearing on behalf of respondent no. 3 submits that as on date, he has not having any instructions because his client has not contacted him since 2008. He further informs this Court that he has sent an intimation to his client by post which has been received back as un-served. In that circumstance, the Court has got no option except to hear Mr. M.S. Tyagi, learned counsel for the petitioner in the absence of the representation on behalf of the respondent no. 3.

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Heard Mr. Mahavir S. Tyagi, learned counsel for the petitioner.

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Mr. M.S. Tyagi, in his writ petition has questioned the validity of the revisional Court’s order dated 14.07.2006 which emanates from the proceedings of the recall/restoration which was the brain child of the respondent no. 3.

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What has been reflected from the records, it seems that there had been a proceedings before the Consolidation Authority by way of Case No. 512 which was adjudicated on its merits on 24.12.1993 pertaining to the khata no. 34 gata no. 78, having an area of 0.9826 hectare. There was another connected case which was as case No. 504 which was decided on 08.02.1994. Both the cases have been decided independently by the Consolidation Authority vide its order dated 24.12.1993 and 08.02.1994 respectively.

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None of the parties to the writ petition or respondents in any of the pleadings, the orders dated 24.12.1993 and 08.02.1994 has not been brought on record. After passing of the order dated 24.12.1993, the respondent no. 3 is said to have filed the restoration application on 24.12.1993 in case no. 512 seeking recall of the order dated 24.12.1993. Simultaneously, after couple of months, he filed another restoration application on 22.01.1999 in case No. 504 seeking recall of the order dated 08.02.1994 passed in case No. 504.

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The Court of Consolidation Officer while considering two applications for recall submitted by respondent no. 3, have passed an order dated 25.05.2000, whereby the orders passed on 24.12.1993 and 08.02.1994 has been recalled. The contention of the petitioner and his grudge against the order dated 25.05.2000, is that the orders which has been passed therein are without any notices to him as he was not heard prior to the passing of the order and as a consequence order dated 25.05.2000 his rights

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pertaining to the allocation of the chaks are since adversely affected at least he ought to have been noticed and heard.

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Another ground which has been agitated by the petitioner is that in principle on reading order dated 25.05.2000 passed on the restoration application filed by respondent no. 3 apparently it reflects as if the orders dated 24.12.1993 and 08.02.1994 which was sought to be recalled by the respondent no. 3 was an order on merits and if that order was on merits then in view of the legal proposition that no recall or restoration would be maintainable because of the bar created by the full bench judgment of Hon’ble Allahabad High Court reported in 1197 ALR (31) 680 (FB) in the case of Smt. Shivraji (Decd.) through L.Rs. and Ors. vs. Dy. Director of Consolidation and Ors. which contemplates that the recall or restoration is a creation of statute and in the case at hand under garb of recall application as a matter of fact the respondent no. 3 was trying to get a review of an order because this Court feels that the order dated 24.12.1993 and 08.02.1994 were orders on merits. Hence the inception of the proceedings right from the beginning of filing of recall application till the order dated 25.05.2000 was not tenable in the eyes of law.

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When the petitioner learnt about the order dated 25.05.2000, and he felt himself aggrieved by the nature of allocation of chaks which has been given to him and he was being adversely affected, coupled with the fact that he was not heard by the Consolidation Officer when, the Order dated 25.05.2000 was being passed, he invoked Section 41 of the

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Consolidation of Holdings Act, which attracts the provisions contained under Section 201 of the Land Revenue Act as apparently from the order dated 25.05.2000, no where any findings has been recorded that any notices of any nature was sent to the petitioner and no finding is to the effect that ever any such notice was served upon him.

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The restoration application thus filed by the petitioner on 28.07.2004 seeking recall of the order dated 25.05.2000 was considered by the Court of Consolidation Officer and allowed on 23.04.2005. The consequent action in pursuance of recall order would be that the order dated 25.05.2000 was set aside which in terms would revive order dated 24.12.1993 and 08.02.1994. Being aggrieved against said order dated 23.04.2005, respondent no. 3 has preferred a revision being Revision No. 450/2004-05 which has been allowed by the Court of Deputy Director, Consolidation by the impugned order dated 14.07.2006. The Court of Deputy Director, Consolidation while considering the revision has not taken those two aspects into consideration which finds place in the application recalled by the petitioner on 28.07.2004 to the effect that he was not heard. A finding recorded by the Revision Court as a matter of fact would tantamount to be a finding which was beyond the pleading which was adjudicated by the petitioners while assailing the propriety of the order passed by the Consolidation Authorities.

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The view taken by the Revisional court that the knowledge of the order dated 25.05.2000 which the petitioner has attributed to be by the application dated 28.07.2004 since

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was after four years it would be suffering from the vices of limitation. The aforesaid view is without basis because it is a consistent case of the petitioner before the court below after filing of the restoration application by respondents and before passing order dated 25.05.2000 once he was never served upon notice as his knowledge would be attributed from the date when he was actually imparted with the knowledge of the order by the authorities about the order dated 25.05.2000. Hence the view drawn to the contrary by the Deputy Director, Consolidation is absolutely misconceived.

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Thus, in view of the aforesaid backdrop, since the application for recall dated 14.12.1998 by the respondent no. 3 was itself not maintainable, this Court has got no hesitation to set-aside the order dated 14.07.2006 as well as order dated 25.05.2000, the writ petition is allowed. The court of Consolidation Officer is directed to decide the recall application dated 24.12.1993 afresh after providing an opportunity to the petitioner.

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(Sharad Kumar Sharma, J.) 28.07.2017

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Mahinder/

Shakil and Ors. v. D.D.C and Ors.

Case brief

What is this about?

What did the court decide?

Shakil and Ors. v. D.D.C and Ors.

Case brief

What is this about?

What did the court decide?

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