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TRIBHUWAN NATH AND ANOTHER versus THE ADDL. COMMISSIONER (II) & OTHERS

High Court of Judicature at Allahabad

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Tribhuwan Nath And Another v. The Addl. Commissioner (Ii) & Others - WRIT - C No. 22804 of 2000 [2006] RD-AH 6196 (21 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.26

CIVIL MISC. WRIT PETITION NO. 22804 OF 2000

Tribhuwan Nath & another

Versus

The Additional Commissioner (II), Allahabad Division, Allahabad and others

---------

HON. SHISHIR KUMAR,J.

By means of this writ petition the petitioners have approached this Court for quashing the order dated 30.11.1999 passed by Addl. Commissioner (II), Allahabad, Annexure-4 to the writ petition and the judgment and order dated 26.7.97 passed by Sub Divisional Officer, Phulpur, district -Allahabad, Annexure-3 to the writ petition.

The petitioners submit that the petitioners are Bhumidhars of plot no. 662 area Bighas 2-15-0 situate in village Patulki, Pargana Sikandara, Tehsil Phulpur district- Allahabad. The petitioners are continuing in possession of the aforesaid plot on the basis of the Patta executed by the Zamindar on 8.7.1920 in the name of the brother of the petitioner no.1's father Shri Shyam Sunder Lal. The names of the petitioners were also recorded in the Khatauni and the petitioners are still continuing in possession of the plot in question. However, during the consolidation the aforesaid plot under some mistake was recorded in the Ziman-4. A proceeding under Section 122-B of the U.P. Zamindari Abolition and Land Reforms Act (in short the Act) were initiated against the petitioner on the basis of the report submitted by the Lekhpal. The competent authority after verifying the relevant record has terminated the proceeding under Section 122 -B in favour of the petitioners by order-dated 13.7.1984. The petitioners filed a suit under Section 229-B of the Act and the said suit was decreed by order-dated 30.1.1997. Copy of the same has been filed as Annexure-2 to the writ petition. It appears that the respondents who were not impleaded as parties, as they were having no concern with the property in dispute, have made an application to set aside the decree of the trial court dated 30.1.1997. The said application was allowed vide its order dated 26.7.1997 and the judgment and decree dated 30.1.1997 was set aside and the suit was restored to its original number and a direction was made to be heard on merits.

The petitioners aggrieved by the order-dated 26.7.1997 have filed a revision, which was numbered as 497 of 1997 under Section 333-A of the Act. The said revision was also dismissed by the Commissioner vide its order dated 30.11.1999. Aggrieved by the aforesaid order the petitioners have approached this Court.

The writ petition was entertained and the notices were issued but no counter affidavit has been filed. Even the Gaon Sabha who was a necessary party and was impleaded in the suit filed by the petitioner under Section 229-B has not filed any counter affidavit. The arguments raised on behalf of the petitioners is that the order dated 30.1.1997 passed by the competent authority was on the basis of the relevant records and a finding to that effect has been recorded that the petitioners are in possession of the land in dispute and the proceedings initiated against the petitioners under Section 122-B has been terminated in favour of the petitioners. The Gaon Sabha and the State Government who were the necessary parties were heard and the record was perused and then the Court below has come to the conclusion that the petitioners by virtue of the possession on the basis of the Patta have acquired Bhumidhari right. It has further been submitted on behalf of the petitioners that that if the respondents were necessary parties to the suit and if application filed by the respondents was to be entertained, it was obligatory on the part of the respondents to issue notice and to afford opportunity to the petitioners. The order dated 26.7.1999 has been passed without any notice and opportunity to the petitioners and the order dated 30.1.1997 has been set aside. A clear averment has been made in the writ petition that no opportunity or notice was given to the petitioners. Aggrieved by the aforesaid order the petitioners filed a revision and specific ground has been taken that no notice prior to the order dated 26.7.1997 has been given to the petitioners. As such the order is liable to be quashed only on this ground but the revisional court without taking into consideration the fact that as the application has been allowed and in the interest of justice as the order has already been recalled, therefore, there is no necessity to interfere in the revision filed by the petitioners.

I have heard the learned counsel for the petitioners and the Standing Counsel and have perused the record. Admittedly the order-dated 30.1.1997 was passed on merit after affording an opportunity to the relevant parties i.e. the State of U.P. and the Land Management Committee. The Land Management Committee and the State of U.P. have not filed any revision or application before any authority regarding setting aside or recall of the order dated 30.1.1997. A stranger who was not impleaded as a party to the proceeding in the suit under Section 229-B of the Act has made an application for recalling the order dated 30.1.1997 and the same has been allowed, that too without any notice or opportunity to the petitioners. From the perusal of the averments made in para 13 of the writ petition, it is clear that no notice or opportunity to the petitioners has been given. In view of above, in my opinion, the order-dated 26.7.1997 passed by respondent no.2 is liable to be quashed only on the ground of clear violation of the principles of natural justice.

In view of the aforesaid facts, the orders passed by respondents no.1 and 2 dated 30.11.1999 and 26.7.1997, Annexures 4 and 3 to the writ petition are hereby quashed and the matter is remitted back to respondent no.2 to pass appropriate orders after affording full opportunity to the petitioners. As the matter is very old, it will be appropriate that respondent no.2 may pass the appropriate orders preferably within a period of two months.

With these observations the writ petition is disposed of. There shall be no order as to costs.

21.3.2006

V.Sri/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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