IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 2550 of 2001. (Old No. 47797 of 1999) Smt. Vimla Devi Bhatia, wife of late Inder Lal Bhatia. … Petitioner. Vs. Commissioner, Saharanpur Division, Saharanpur and others. …Respondents. Mr. Siddhartha Sah, Advocate, learned counsel for the petitioner-applicants. Mr. N.P.Sah, Standing Counsel, learned counsel for the respondents No. 2 to 4. Date September 29, 2010. Hon’ble B.S.Verma, J. (Recall Application No. 141 of 2009) (Delay Condonation Application No. 1883 of 2009) (Application for substitution No. 1892 of 2009) (Miscellaneous Application No. 1039 of 2009) Heard learned counsel for the parties and perused the record. The petitioner-applicants have filed the recall application to recall the order dated 25-7-2008 passed by this Court, whereby the writ petition was dismissed on merit. Learned counsel for the petitioner has submitted that the writ petition could not have been ordered to have abated, as held by the order dated 25-7-2008. In my view the writ petition cannot abate on account of death of the sole petitioner. Grounds are sufficient to recall the order dated 25-7-2008. Accordingly, the order dated 25-7-2008 is hereby recalled. The writ petition is restored to its original number. The recall application stands disposed of. The applicants have filed substitution application to substitute their names in place of the deceased petitioner Smt. Vimla Bhatia, who had died on 14-12-2007 leaving behind her the applicants as her legal heirs, namely Rahul Bhatia and Rohit Bhatia. Along with the substitution application, the applicants have filed an application for condonation of delay in filing the 2 substitution application. The applicants have also filed an application for setting aside abatement. The applications are also supported by an affidavit, duly sworn in by the power of attorney holder Dilshad. Heard learned counsel for the applicants. The applications are not opposed from the other side. In the interest of justice, the delay in filing the substitution application is condoned. The substitution is accordingly allowed. The application for setting aside abatement also stand allowed. All the applications are accordingly disposed of. The applicants shall file amended memo of parties during the course of the day. By means of this writ petition, the petitioners have sought the following relief:- i. To issue a writ order or direction in the nature of certiorari quashing the order of the respondent no. 1 dated 26.10.1999 contained in annexure 8 to the writ petition and the order dated 16.8.99 passed by Naib Tehsildar, annexure-5 to the writ petition. ii. To issue a writ order or direction in the nature of mandamus commanding the respondent no. 2 not to confirm the ex parte auction sale dated 16.8.99 in favour of the respondent no. 5. iii. To issue a writ order or direction in the nature of mandamus commanding the respondent no. 1 to decide the application under Rule 285(1) of U.P.Z.A. and L.R. Rules moved by the petitioner on merits within the time specified by this Hon’ble Court. iv. To issue any other such order or direction, which may deem fit and proper under the circumstances of the case. By the order dated 26-10-1999, the Commissioner had rejected the objection, which was filed by the petitioner on 14-10-1999 against the auction sale dated 16-8-1999, on the ground that the objection was filed after the expiry of the period of limitation of 30 days and that the provisions of Section 5 of the Limitation Act was not applicable in the proceedings under Rule 285-I of the U.P.Z.A.and L.R. Rules. 3 According to the petitioners, the name of the petitioner was recorded in the revenue records by Naib Tehsildar by order dated 10-2-1992 on the basis of a will duly executed on 15-1-1991 by Sri Inder Lal Bhatia in respect of the disputed property mentioned in paragraph no. 3 of the writ petition. The respondent no. 5-Gaon Sabha moved an application on 6-9-1993 before the Naib Tehsildar for setting aside the order dated 10-2-1992, which was registered as Suit NO. 157/93. The Naib Tehsildar cancelled his earlier ex parte order dated 10-2-1992 vide order dated 21-12-1993. The petitioner also claims that the Land Record Inspector on 25-1-1994 ordered for mutation of the names of Vinay Kumar, Vijay Kumar and Ashwani Kumar Bhatia, sons of late Inder Lal Bhatia as his legal heirs in the revenue records. When the petitioner came to know the ex parte orders dated 21-12-1993 and 28-12-1993 passed by the Naib Tehsildar, she moved an application for restoration and recall of the ex parte orders. The restoration application was allowed on 6.3.1998 and the orders dated 21-12-1993 and 28-12-1993 were recalled. The case, which was renumbered as Suit No. 5/99 (Old Suit No. 157/93), was directed to be listed on 19-3-1998 for objections. Ultimately the Additional Tahsildar Roorkee by his order dated 16-8- 1999 dismissed the suit for want of prosecution. It appears that there was some amount due against Vinay Kumar Bhatia, one of the sons of late Inder Lal Bhatia as arrears of land revenue and to recover the outstanding amount, the Sub Divisional Magistrate attached the property of the petitioner by an ex parte order dated 23.2.1994. Consequently, the Sub Divisional Magistrate by an ex parte order dated 14-7-1999 directed the Naib Tahsildar concerned for auction sale of the disputed property to satisfy the arrears of land revenue outstanding against Viney Kumar Bhatia, son of the petitioner and the property was auctioned on 16-8-1999 in favour of the respondent no. 5 for a consideration of Rupee 1/-. It appears that the petitioner moved an application before the District Magistrate Haridwar for carrying out the order dated 6-3- 1998 by which the ex parte orders passed by the Naib Tahsildar 4 Roorkee dated 21-12-1993 and 28-12-1993 were recalled. The grievance of the petitioner is that her property was illegally put to auction, because the orders passed ex parte by Naib Tahsildar Roorkee had already been recalled. Learned counsel for the petitioner has contended that the learned Commissioner while passing the impugned order dated26-10- 1999 has not decided the application under Section 5 of the Limitation Act for condonation of delay in filing the objections under Rule 285-I of the U.P.Z.A. and L.R. Rules moved by the petitioner. Learned counsel for the petitioner has vehemently argued that the impugned order dated 26-10-1999 passed by the Commissioner, Saharanpur Division is not tenable in the eye of law for the reason that the provisions of Section 5 of the Limitation Act are applicable to the matter under Rule 285-I of the U.P. Z.A. and L.R. Rules, 1952, therefore, the finding of the learned Commissioner to the contrary is liable to be quashed. Learned counsel for the petitioner has placed reliance in a Full Bench Decision of Lucknow Bench of the Allahabad High Court in the case of Ram Swaroop Vs. Board of Revenue and others,[1990, A.L.R.(R.) (Lucknow Bench-Full Bench)], wherein the following observations were made:- “Rule 285-I as extracted above indicates that the Commissioner is to adjudicate certain rights and interest of the parties in respect of immovable property. The Commissioner is to decide as to whether there was any irregularity which was material in nature or there was mistake in publishing or conducting the sale for which purpose a procedure is prescribed and in case the Commissioner comes to the conclusion that such things existed, he is to set aside the sale. The order so passed by the Commissioner has been made final. Obviously the proceedings so taken by the Commissioner are judicial in nature. Though it could be said that the Commissioner is not sitting as a court to decide the same, and there is no specific provision in this behalf, the Commissioner will be deemed to be sitting in the court and the order passed by the Commissioner will be amenable to the revisional jurisdiction of the Board of Revenue under Sec. 333 of the 5 U.P.Z.A. and L.R. Act which is analogous to Sec. 219 of U.P. Land Revenue Act.” It has further been held by the Full Bench that “there is no dispute that Indian Limitation Act will apply before any court of law.” Finally it was held by the Full Bench that the Commissioner while deciding the objection under Rule 285-I of the U.P.Z.A. and L.R. Rules will be a count under U.P.Z.A. and L.R. Act. For the reasons and discussion above, I am of the view that the provisions of Section 5 of the Limitation would be applicable to the proceedings of Rule 285-I of the U.P.Z.A. and L.R. Rules. That being so, the learned Commissioner was under obligation to decide the application moved by the petitioner under Section 5 of the Limitation Act on merits. On this ground, the writ petition deserves to be partly allowed and it is a fit case to remand the matter to the learned Commissioner. The writ petition is partly allowed. The impugned order dated 26-10-1999 passed by the learned Commissioner, Saharanpur Division, Saharanpur is set aside. The matter is remanded to the Commissioner concerned with the direction to decide the application of the petitioner moved under Section 5 of the Limitation Act along with the objection, afresh on merits, expeditiously as far as possible. (B.S.Verma,J.) RCP