1. Heard.
2. This petition has been filed challenging the order dated 16.12.2019 passed under Section 35(2) of Uttar Pradesh Revenue Code, 2006, passed by the Sub-Divisional Magistrate, Rudauli, District Ayodhya in Appeal No.04530/2019: Talat Khatoon Vs. Shaheen Zaidi. The petitioner also prays for quashing of the order of recall dated 25.10.2013 passed by the Naib Tehsildar, re-opening the case for mutation which was concluded by a final order passed on 30.08.2007 after five years on a delayed application for recall moved by the contesting respondent Smt. Talat Khatoon.
3. It has been submitted by learned counsel for the petitioner that the husband of respondent no.4 had executed a gift deed on 15.05.2007 in favour of Ambar Seva Sansthan, of which the petitioner is the Secretary. The land was mutated in the name of the petitioner on 30.08.2007 and under Section 143 of the U.P. Z.A. & L.R. Act the Collector In-charge also declared the land in question as suitable for non-agricultural purpose.
4. The respondent no.4 after five years of the order of mutation filed a recall application on 07.09.2012 saying that the husband of the petitioner was very sick and the petitioner had colluded with the revenue official in the Tehsil to get the name of the petitioner as Secretary of Ambar Seva Sansthan recorded in the revenue record as purchaser. No gift has been made by the husband of the applicant- respondent no.4. On the first day of filing of the said application for recall, the respondent no.3 entertained the same and without noticing that no delay application had been filed, stayed his earlier order dated 30.05.2007 while issuing notice to the parties to appear before him.
5. Later on, the respondent no.3 allowed the recall application on 25.10.2013 and set aside his own order dated 30.07.2007. The petitioner being aggrieved against the order dated 25.10.2013 filed a Revision where the Board of Revenue summoned the lower court record and by an order dated 11.01.2016 finding no infirmity in the order passed by the respondent no.3, remanded the matter to the respondent no.3 to decide the suit within a period of three months from the date of order of the Board of Revenue on being produced before him. The recall application was registered, as the Suit No.1628 under U.P. Revenue Code, 2006 and was being heard by respondent no.3 and the respondent no.4 was not producing the evidence to substantiate her claim, therefore, the respondent no.3 passed an order on 27.11.2019 giving last opportunity to the applicant- respondent no.4 to produce evidence by the next date of listing. The matter was directed to be listed on 30.11.2019. The respondent no.4 filed an Appeal before the respondent no.2 against the order dated 27.11.2019 under Section 35(2) of the U.P. Revenue Code. The respondent no.2 observed that the opportunity could not have been closed by the respondent no.3. The respondent no.2 set aside the order dated 27.11.2019, but at the same time closed the proceedings initiated by respondent no.3 on the recall/ re-opening application of the respondent no.4 without making any observations on the order dated 25.10.2013 which still exists against the petitioner.
6. This Court has carefully perused the operative portion of the order dated 16.12.2019 passed in Appeal and is convinced that the order has been passed without application of mind. Firstly, the Appeal was not itself maintainable against the interim order and secondly, after setting aside the interim order dated 27.11.2019, the Appellate Authority has closed the proceedings of the mutation case itself.
7. The order dated 16.12.2019 is set aside.
8. The respondent no.3 is directed to conclude the hearing being conducted by him on the application for recall filed by the respondent no.4 within a period of four months from the date a copy of this order is produced.
9. The writ petition is disposed of.
Order Date :- 21.1.2021 Rahul