Failure to consider the delay condonation application before allowing the recall application can lead to the setting aside of the order and quashing of the revisional court's order.

JUDGMENT

Sharad Kumar Sharma, J. - The petitioner has filed this writ petition praying for quashing of the order dated 04.07.2007, as well as the revisional courts order dated 25.03.2008, which has been passed by respondent nos.3 and 2, respectively to the writ petition.

2. The petitioner contends that he is beneficiary of an allotment which was made of Khasra No.170/2 having an area of 0.082 hectares in his favour, by virtue of a resolution passed by the Land Management Committee on 08.01.1997, in relation to a land, which was admittedly otherwise was vested with the Gaon Sabha and recorded in the revenue record as "Gohar". Subsequently before resorting to the allotment process, the revenue entries were altered and changed and land was recorded as "Banjar".

3. The petitioner later had filed an application, that since he being an allottee of the land, he may be granted benefit of Section 122-B(4)(f) of Zamindari Abolition & Land Reforms Act. As a consequence of the aforesaid application, the matter was proceeded at the stage of Up Ziladhikari/Assistant Collector 1st Class, Laksar, who had proceeded to pass an order on 05.09.1997, directing to change the revenue entries from "Gohar" to "Banjar" in relation to the land, which was allotted to the petitioner in pursuance to the resolution of the Land Management Committee dated 28.01.1997.

4. The grievance of the petitioner is that after the said conversion in the revenue entry being granted on 05.09.1997, the DGC revenue has filed an application for recall of the said order on 05.09.1997, by filing the same on 01.06.2007 almost after ten years of the date of passing of the order. Apparently, as per record itself the said application dated 01.06.2007, for recall was supported with a delay condonation application. On the said application for recall, which was supported with delay condonation application, in fact he was never noticed nor he was heard and without providing any opportunity of hearing to the petitioner, by one of the orders impugned dated 04.07.2007, the order of conversion dated 05.09.1997, has been recalled.

5. Being aggrieved against the said order, the petitioner had preferred a revision before the court of Additional Commissioner, Garhwal Mandal, Camp, being Revision No.51 of 2006/2007, Chander vs. State of Uttarakhand and the same too stood dismissed by the revisional court vide its judgment dated 25.03.2008.

6. After having heard learned counsel for the parties and looking to the nature of controversy, as it has been argued by the counsel for the petitioner, at this stage for the reasons to be recorded hereinafter, this Court is refraining itself to make any observation pertaining to the creation of right in favour of the petitioner by virtue of an allotment of land, which was recorded as "Gohar" because that would be altogether, an independent aspect which is required to be considered, if at all permissible under law.

7. In my judicial scrutiny to the impugned order dated 04.07.2007, and that is taken into consideration itself, I am not in agreement with the manner in which the Assistant Collector 1st Class, has passed the order in Case No.11 of 1996/97; recalling an order of 05.09.1997, on a limited context I am interfering for the reason that once the application itself, which was preferred by the respondent after 10 years of passing of an order and once it was supported with the delay condonation application, then it was incumbent on the court of Assistant Collector, that it ought to have first consider the propriety of delay condonation and then only he could have proceeded to venture further and pass an order of allowing the recall application and consequently the order dated 05.09.1997.

8. On this limited count itself that since the order dated 04.07.2007, has been ventured into to be decided by the Assistant Collector 1st Class without even condoning the delay of 10 years, which has chanced in filing the recall application as no orders was passed on it, and delay