Allahabad High Court
Shivala vs The Collector & Others on 4 August, 2010
Author: Sanjay Misra
Bench: Sanjay Misra
AFR
Court No.28
Civil Misc. Writ Petition No.4514 of 1996
Shivala Versus The Collector, Hamirpur & Others
Hon'ble Sanjay Misra, J.
Heard Sri A.R. Dwivedi, learned counsel for the petitioner and learned Standing Counsel, who has accepted notice on behalf of Respondents No.1 & 2.
This petition was presented in the year 1996, however, no counter affidavit was invited and it remained pending since then. The petitioner is aggrieved by the order dated 29.12.1992 passed by the Respondent No.2, Tehsildar/Assistant Collector, Ist Class, Hameerpur, as also order dated 01.11.1995 passed by the Collector, Hameerpur, in proceedings under Section 122B of the U.P.Z.A & L.R. Act.
According to Sri Dwivedi the notice 49-Ka was issued to which the petitioner had filed his reply, however, by the impugned order dated 29.12.1992 the objection was rejected and damages of Rs.1800/- were imposed upon the petitioner alongwith a direction for his ejectment from the land in question being Plot No.407/1 area 0.065 and Plot No.401/2 area 0.057 situate in village Mauhar, Pargana Sumerpur, Tehsil & District Hameerpur. Feeling aggrieved the petitioner filed a revision under Section 333 of the U.P.Z.A. & L.R. Act being Revision No. Nil of 1995 before the Respondent No.1. Alongwith revision the petitioner also filed an application for condoning the delay in filing the revision.
Learned counsel states that in the application for condoning the delay it had been clearly stated that when the matter was heard before the Respondent No.2 and evidence had been led by the petitioner, he was made to understand that the proceedings by virtue of the notice 49-Ka will be withdrawn since the matter does not relate to unauthorized occupation of Gaon Sabha land. He states that the petitioner, therefore, went back and for the first time he came to know on 27.01.1995 when he was served with the notice. According to learned counsel for the 2 petitioner he applied for certified copy of the order on 06.02.1995 and received it on 15.02.1995. The revision was filed on 16.02.1995 that is very next day when the certified copy of the order was made available to him and as such there was no delay in the revision from the date of knowledge of the order passed by the Respondent No.2.
Having considered the submission of learned counsel for the petitioner and perused the record, it has been clearly mentioned in the application under Section 5 of the Limitation Act that when the proceedings were undertaken by the Respondent No.2 the petitioner had appeared in person and had led evidence to show that he was the owner of the property in question and had not encroached the Gaon Sabha land. The petitioner gathered an impression that the notice 49-Ka would be withdrawn and no further proceedings will be held. However, the petitioner has stated that he received a notice on 27.01.1995 and applied for the certified copy on 06.02.1995 which was given to him on 15.02.1995. He thereafter filed revision on 16.02.1995. Clearly, the explanation given by the petitioner has not been considered by the Revisional Court in the impugned order wherein it has only been recorded that the petitioner has not been able to explain the delay in filing the revision. Consequently, the impugned order cannot be sustained and it is liable to be set aside. The reason given in the application under Section 5 of the Limitation Act for condoning the delay in filing the revision should have been considered.
The impugned order dated 01.11.1996 is accordingly set aside. The matter is remitted back to the Respondent No.1 to reconsider the condonation of delay application of the petitioner in accordance with law and pass fresh orders keeping in view the explanation given by the petitioner.
The writ petition stands allowed.
No order is passed as to costs.
Order date:- 04.08.2010 pks