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Arun Kant Banga v. State Of U.P. & Others - WRIT - C No. 70443 of 2005  RD-AH 223 (4 January 2006)
Civil Misc. Writ Petition No. 70443 of 2005
Arun Kant Banga. Vs. State of U.P. and others.
Hon'ble Janardan Sahai, J.
I have heard the learned counsel for the parties.
With the consent of the counsel for the parties the matter is being disposed of finally.
Proceedings under Section 33/47-A (4) of the Indian Stamp Act were taken against the petitioner in respect of a sale deed dated 15.4.2002. The petitioner had paid stamp duty treating it as agricultural land. The Additional District Magistrate (Finance and Revenue), Saharanpur found that the plot in dispute was used for agricultural purposes and it could not be treated as residential merely on the basis of residential use. Accordingly, the proceedings against the petitioner were dropped. Against the order of the Additional District Magistrate (Finance and Revenue), Saharanpur an appeal was filed by the State of U.P. The appeal was allowed ex parte. There is a recital in the order of the appellate authority that despite notice the petitioner did not appear. The appellate authority found that the nature of the land is residential. It therefore set aside the order of the Additional District Magistrate (Finance and Revenue), Saharanpur and directed the matter be decided again by the Additional District Magistrate (Finance and Revenue), Saharanpur. The petitioner filed an application for setting aside the order of the appellate authority on the ground that no notice was served upon him and the order was passed without opportunity of hearing. This application was dismissed by the Chief Controlling Revenue Authority by its order dated 21st September, 2005 impugned in the present writ petition.
A perusal of the order dated 21.9.2005 indicates that the restoration application has been dismissed on the ground that no prejudice would be caused to the petitioner as the matter has merely been remanded to the Additional District Magistrate (Finance and Revenue), Saharanpur for fresh decision. No finding has however been recorded upon the point as to whether notice was served upon the petitioner or not. The reason given by the Chief Controlling Revenue Authority that no prejudice would be caused to the petitioner appears to be erroneous. The order of the appellate authority, which was sought to be set aside contains a finding that the nature of the property in dispute is residential. Such a finding will obviously prejudice the petitioner's case as it would bind the Additional District Magistrate (Finance and Revenue), Saharanpur. The Chief Controlling Revenue Authority in its impugned order has not recorded any finding upon the point, which was raised by the petitioner that the order was passed without service of notice. In the absence of any finding upon the point the order dated 21.9.2005 is liable to be set aside. On the facts and circumstances also it appears that the petitioner ought to be given opportunity of hearing. In the circumstances that both the orders dated 21.9.2005 and order dated 23.2.2005 passed by the Chief Controlling Revenue Authority are set aside. The case is sent back to the appellate authority to give opportunity to the petitioner and to decide the appeal afresh on merits. Counsel for the petitioner and the learned Standing counsel are agreed that the parties will appear before the Chief Controlling Revenue Authority on 6.2.2006. The appellate authority shall try to dispose of the appeal expeditiously and if possible within a period of three months from the date a certified copy of this order is filed before it.
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