# Dinesh and others v. The Additional Commissioner, Agra and others

- **Citation:** (2010) 2 ILRA 764
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-29
- **Case number:** Civil Misc. Writ Petition No. 62742 of 2007
- **Bench:** B.K. Narayana
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-and-others-v-the-additional-commissioner-agra-and-others-41692
- **Pages:** 5

## Headnote

U.P. Z.A. & L.R. Act, 1950-Section 333Revision against cancellation of lease for
Abadi purpose-cancellation Order setaside
by
Revisional
Court-On
recall
application by without issuing any Notice
without hearing to the petitioner-order
recalled
receiving
notices-recall
application with candonation of delayRejected by impugned order the delay
application without any discussion for no
satisfaction
explaination
apart
from
revision itself was not maintainableheld-misconceived-illegal-Patta
was
granted under Rule 115-P and not under
122(C)-Law laid dawn in Wahajuddin
case fully applicable-direction issued to
consider recall application in accordance
with law.

Held: Para 8

In the instant case also the application
for cancellation of the allotment made
in favour of the petitioners was filed
under Rule 115-P of the Rules and the
allotment of land in favour of the
petitioners is not alleged to have been
made under Section 122 (C) of the Act,
since
the
petitioners
are
neither
agricultural
labourers
nor
village
2 All Dinesh and others V The Additional Commissioner, Agra and others
765
artisans of members of schedule caste
and schedule tribes. Hence the law laid
down by this court in the case of
Wahajuddin (supra) applies with full to
the facts of the present case, In view
of the aforesaid this court is of the
view that the impugned order passed
by
the
respondent
no.3
is
not
sustainable in the eyes of law and is
liable to be set aside
Case law discussed:
2002 (1) AWC 833, 2002 Vol. 1 833.

## Text

764 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
would not fall within its statutory
obligation and, therefore, in the absence
of such obligation on the part of the
University particularly without any
corresponding right in favour of the
petitioner and keeping in view the tests
laid down in the case of Pradeep Kumar
Biswas (supra), in my opinion, the
present case on behalf of the petitioner
cannot be entertained for the reliefs
claimed.

10. Sri Shesh Kumar then contends
that keeping in view the nature of the
engagement of the petitioner which has
continued for the past almost 20 years,
the University should have formulated a
scheme for the absorption of adjustment
of the petitioners. In this regard, suffice
it to say, that no mandamus is required
to be issued by this Court and it is
expected that keeping in view this
peculiar situation of the teachers, who
have spent almost half of their life in the
institution, it would be in the interest of
justice for the University to consider the
request of the petitioner sympathetically
and take an appropriate decision in the
matter. The University is expected to
take a decision as expeditiously as
possible.

11.

With
the
aforesaid
observations, these writ petitions stands
disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.07.2010

BEFORE
THE HON'BLE B.K. NARAYANA, J.

Civil Misc. Writ Petition No. 62742 of 2007

Dinesh and others
 ...Petitioners
Versus
The Additional Commissioner, Agra and
others

 ...Respondents

Counsel for the Petitioners:
Sri Vishal Khandelwal

Counsel for the Respondents:
Sri K.P. Singh
Sri V.K. Singh

U.P. Z.A. & L.R. Act, 1950-Section 333Revision against cancellation of lease for
Abadi purpose-cancellation Order setaside
by
Revisional
Court-On
recall
application by without issuing any Notice
without hearing to the petitioner-order
recalled
receiving
notices-recall
application with candonation of delayRejected by impugned order the delay
application without any discussion for no
satisfaction
explaination
apart
from
revision itself was not maintainableheld-misconceived-illegal-Patta
was
granted under Rule 115-P and not under
122(C)-Law laid dawn in Wahajuddin
case fully applicable-direction issued to
consider recall application in accordance
with law.

Held: Para 8

In the instant case also the application
for cancellation of the allotment made
in favour of the petitioners was filed
under Rule 115-P of the Rules and the
allotment of land in favour of the
petitioners is not alleged to have been
made under Section 122 (C) of the Act,
since
the
petitioners
are
neither
agricultural
labourers
nor
village
2 All Dinesh and others V The Additional Commissioner, Agra and others
765
artisans of members of schedule caste
and schedule tribes. Hence the law laid
down by this court in the case of
Wahajuddin (supra) applies with full to
the facts of the present case, In view
of the aforesaid this court is of the
view that the impugned order passed
by
the
respondent
no.3
is
not
sustainable in the eyes of law and is
liable to be set aside
Case law discussed:
2002 (1) AWC 833, 2002 Vol. 1 833.

(Delivered by Hon'ble B.K. Narayana, J.)

1. Heard 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 nos.1 and Sri K.P. Singh for
respondent no. 5.

This writ petition has been filed by
the petitioner for quashing the orders
dated 11.10.2006 and 18.03.2004 passed
by
the
Addl.
Commissioner
Agra(Annexure Nos. 5 and 3) and the
order dated 29.04.2000 (Annexure No. 1
to the writ petition) passed by the
Additional Collector(City), Aligarh.

2. Brief facts of the case as stated
in the writ petition are that allotment of
land was made in favour of the
petitioner on 20.09.1992 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
28.05.2002 whereby the order dated
29.04.2000 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
28.05.2002 on 07.05.2003 which was
allowed by him by his order dated
18.03.2004 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 19.05.2004 for hearing of the said
revision.

3. Upon being served with the
summons
the
petitioners
appeared
before
the
respondent
no
2
on
19.05.2004 and got knowledge of the
order dated 16.03.2004 for the first time
on 19.05.2004. Petitioners on the same
date applied before respondent no, 2 for
recall of the order dated 18.03.2004
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.

4. 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 has sufficiently explained
the reasons for delay in moving the
766 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
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. & L.R. Act 1950 (herein after
referred to as 'the Act') is clearly
revisable as held by this Court in
Wahajuddin Vs. Board of Revenue
and others reported in 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. & L.R. Rules,
was
not
maintainable,
is
totally
misconceived and erroneous.

5. 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 the
Constitution of India.

6.

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
29.04.2000 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
28.05.2002 Order dated 28.05.2002 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
18.03.2004 without issuing any notice
to the petitioners and without affording
them any opportunity of hearing. Notice
was issued to the petitioners fixing
19.05.2004.for hearing of the Revision.
The petitioners for the first time became
aware of the order dated 18.03.2004.
Copies of recall and delay condonatiion
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
19.05.2004 they had not knowledge of
the order dated 18.03.2004 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.

7. Record of the case shows that
the order dated 25.05.2002 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'
2 All Dinesh and others V The Additional Commissioner, Agra and others
767
version that they for the first time
became aware of the order dated
18.03.2007 when summons for hearing
of revision no. 49 of 2000 was 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
18.03.2007. 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
satisfactory
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.

The next question which arises for
consideration in this writ petition is as
to whether the view taken by the
respondent no.1 that the order passed
under rule 115-P of the U.P.Z.A. And
L.R. Rules(herein after referred to as'
the Rules') is not revisable under
Section 333 of U.P.Z.A. and L.R. Act,
1950, is correct. The question whether a
revision against the order passed by the
Additional Collector under Rule 115-P
of the Rules is maintainable or not, is no
longer res integra and has been set at
rest by the decision of this Court in the
case of Wahajuddin Vs. Board of
Revenue reported in 2002 Vol. 1 833,
wherein the learned single judge of this
court in para no. 14 of the aforesaid
judgement has held as under:

"The law laid down by the
aforesaid Division Bench is fully
applicable to an order passed by the
Collector under Rule 115-P. Thus
despite sub-rule(5) of Rule 115P
making the order of the Collector
under Rule 115P final, the revision is
maintainable under Section 333 of the
U.P. Zamindari Abolition and Land
Reforms Act. In the present case the
application was filed under Rule 115P and the allotment is not claimed
under
Section
122C
since
the
respondent
no.
3
is
neither
agricultural
labourer
nor
village
artisan or member of the Schedule
Caste or Scheduled Tribe. Thus, the
order of the Collector is not referable
to sub-Section (6) of the Section 122C:
hence sub-section (7) of Section 122C
is not attracted and revision is
maintainable
under
Section
333
against the order of the additional
Collector dated 23.03.1990.

8. In the instant case also the
application for cancellation of the
allotment made in favour of the
petitioners was filed under Rule 115-P
of the Rules and the allotment of land in
favour of the petitioners is not alleged
to have been made under Section 122©
of the Act, since the petitioners are
neither agricultural labourers nor village
artisans of members of schedule caste
and schedule tribes. Hence the law laid
down by this court in the case of
Wahajuddin (supra) applies with full to
the facts of the present case, In view of
the aforesaid this court is of the view
that the impugned order passed by the
respondent no.3 is not sustainable in the
eyes of law and is liable to be set aside.
768 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

9. This Court holds that the order
passed under rule 115-P of the Rules is
revisable under section 333 of the
U.P.Z.A. & L.R. Act.

The respondent no. 1 is directed to
consider
and
decide
the
recall
application moved by the petitioners for
recalling the order dated 18.03.2003 in
accordance with law.

10. Necessary exercise in this
regard shall be completed within a
month from the date of production of a
certified copy of this order after
considering all the objections raised by
the parties.
---------