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2011 DIGILAW 1615 (RAJ)

Keshar Singh v. State of Rajasthan

2011-08-05

GOPAL KRISHAN VYAS

body2011
Hon'ble VYAS, J.—In this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for quashing order/ judgment dated 6.3.2009, Annex.11 and order dated 19.5.2010 passed upon application filed by the petitioner under Order 41 Rule 21 read with Section 151, C.P.C. by the Addl. Collector, Udaipur. 2. Brief facts of the case are that in the year 2006 the petitioner started raising construction, against which, respondent No.4 filed suit for permanent injunction along with an application for interim injunction. After filing reply by the petitioner, the temporary injunction application of respondent No.4 was allowed by the trial Court, however, it was directed that in case during the pendency of the suit if the petitioner obtains permission from the UIT he may raise construction with due permission of the Court. 3. Contention of the petitioner is that as per rules the petitioner obtained construction permission from the U.I.T., Udaipur on 28.6.2008 and plan was sanctioned in favour of the petitioner for construction, the petitioner as per order passed by the Civil Judge (Jr.Dn.), Udaipur (South) filed an application to complete the construction and the civil Court allowed the application filed by the petitioner for completing the construction as per permission granted by the U.I.T. 4. Respondent No.4 preferred an appeal before the District Collector, Udaipur against construction permission granted to the petitioner. Before filing appeal against the petitioner, the petitioner entered caveat and was regularly appearing in the office of respondent No.2. Grievance of the petitioner is that vide impugned order dated 6.3.2009 respondent No.2 proceeded ex parte and allowed the appeal of respondent No.4, against which, the petitioner filed application under Order 41 Rule 21, C.P.C. for setting aside order dated 6.3.2009 and for providing opportunity of hearing and to re-decide the appeal; but, Addl. Collector, Udaipur, after hearing arguments, proceeded to reject the application filed by the petitioner for setting aside order dated 6.3.2009. In this writ petition, the petitioner has prayed for quashing the said order on the following grounds. 5. The contention of the petitioner is that before filing appeal by respondent No.4 before the District Collector, Udaipur, he entered caveat and remained present before the District Collector. The date in appeal was fixed for arguments on 10.11.2008 in the Court of the District Collector, Udaipur. 5. The contention of the petitioner is that before filing appeal by respondent No.4 before the District Collector, Udaipur, he entered caveat and remained present before the District Collector. The date in appeal was fixed for arguments on 10.11.2008 in the Court of the District Collector, Udaipur. On that date, the petitioner was present but respondent No.4 and his counsel did not appear before the Court, then, Reader of the Court assured the petitioner that respondents are not present, therefore, the Court will pass appropriate order to dismiss the appeal for non-prosecution. 6. While submitting certified copies of the initial order-sheet, it is pointed out that word "vne gktjh" was written but, thereafter, it was rubbed of and, on that date, in the order-sheet it is drawn that counsel who entered caveat is not present. Thereafter, on 6.1.2009, the district Collector, Udaipur transferred the appeal filed by respondent No.4 against the construction permission to the Addl. Collector (Admn.), Udaipur for adjudication for the reason that the District Collector took charge of the office of Chairman, U.I.T., Udaipur. 7. Learned counsel for the petitioner submits that no information was given to the petitioner for transferring the matter from the Court of District Collector to the Court of Addl. Collector, Udaipur so also, although caveat was filed by the petitioner and petitioner was informed that on one appeared for the appellant, therefore, the appeal will be dismissed, next proceedings was drawn in the order-sheet on 23.9.2008, in which, it is observed that counsel for the respondent is absent but, in fact, till presence of the petitioner's counsel on 10.11.2008, after transfer of the appeal, when none was present on behalf of the petitioner ex parte order was passed whereby permission granted to the petitioner was rejected in his absence. 8. Learned counsel for the petitioner further raised ground that if the counsel who entered caveat is not present, then, it is duty of the Court to issue notice and those notices were ordered to be issued which is evident from the order-sheet dated 14.10.2008 but the same were not served upon the petitioner. Therefore, order dated 6.3.2009 passed by the Addl. Collector, Udaipur may be quashed and set aside because it was passed without providing opportunity of hearing to the petitioner. 9. Therefore, order dated 6.3.2009 passed by the Addl. Collector, Udaipur may be quashed and set aside because it was passed without providing opportunity of hearing to the petitioner. 9. Per contra, learned counsel appearing on behalf of the respondent No.4 submits that after entering caveat if nobody appeared before the Court, then, obviously only option left with the Court is to proceed ex parte. In this case, the petitioner has concocted ground for his non-appearance even after filing caveat, therefore, no opportunity can be granted to the petitioner for re-hearing the matter. 10. Learned counsel for the U.I.T., Udaipur supports the contention of the petitioner and submits that the permission granted to the petitioner was in accordance with law. 11. After hearing learned counsel for the parties, I have perused order-sheet drawn by District Collector, Udaipur and Addl. Collector (Admn.), Udaipur. In the order-sheet dated 23.9.2008, it is observed that caveat has been entered on behalf of the respondent No.1 (petitioner herein), therefore, matter may be fixed for hearing on 29.9.2008 and next date of hearing was fixed on 29.9.2008. On that date, it is observed that, "............... jsLiksaMsUV dks lwpuk i= rkfey gksdj izkIr ugha gqvk gS". Similarly, in the order-sheet dated 14.10.2008, it is observed that, "jsLiksaMsUV ds vfHkHkk"kd vuqifLFkrA lwpuk i= ls ryc fd;k tkosA izdj.k iqu% 21-10-2008 dks is'k gks". Upon the above assertion made in the order-sheet, it is obvious that notices were ordered to be issued by the District Collector, however, no such notice was received by the petitioner; and, ultimately after holding charge of the Chairman of the UIT the District Collector transferred the case to the Court of Addl. Collector (Admn.), Udaipur vide order dated 6.1.2009 but no information was given to the petitioner for transferring the appeal filed by respondent No.4. 12. In this view of the matter, it is obviously clear that the petitioner was not having any knowledge with regard to the proceedings of the appeal, therefore, he was unable to appear before the appellate Court to contest the appeal filed by respondent No.4. 13. The Addl. 12. In this view of the matter, it is obviously clear that the petitioner was not having any knowledge with regard to the proceedings of the appeal, therefore, he was unable to appear before the appellate Court to contest the appeal filed by respondent No.4. 13. The Addl. Collector while deciding the matter did not consider the above facts and delivered the judgment ex parte and, thereafter, when application was filed by the petitioner under Order 41 Rule 21, C.P.C., read with Section 151, C.P.C., then also, contention of the petitioner was not accepted and prayer of the petitioner was rejected. 14. In view of the aforesaid, it is abundantly clear that order impugned dated 6.3.2009 and order dated 19.5.2010 were passed without providing opportunity of hearing to the petitioner and the construction permission which is granted in favour of the petitioner was illegally cancelled on his back. 15. In this view of the matter, this writ petition is allowed. Order dated 6.3.2009 passed by Addl. Collector (Admn.), Udaipur in Case No. 13/2009 and order dated 19.5.2010 passed by Addl. Collector, Udaipur upon application filed under Order 41 Rule 21, read with Section 151, C.P.C. are hereby quashed and set aside. The matter is remitted to the District Collector, Udaipur with direction to decide the appeal filed by respondent No.4 afresh after providing opportunity of hearing to both parties and parties are directed to remain present before the District Collector, Udaipur on 3.9.2011.