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Allahabad High Court · body

2014 DIGILAW 2060 (ALL)

Ram Kishun Pal v. Shambhu Lal Sahu

2014-07-14

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal, J. – Service of notice upon the respondent is deemed to be sufficient in view of the office report dated 11.7.2014 but no one has put in appearance on his behalf. Heard learned counsel for the petitioner. No one appears for the respondent. The dispute relates to grant of permission to construct a wall of house No.121/64 situate in Mohalla Katghar, Tehsil Sadar, District Allahabad. 2. The respondent applied under Section 28(4) of U.P. Act No.13 of 1972 for permission to repair/construct a wall 12 ft. in length of the aforesaid house on the ground that it has been seriously damaged during rains. The application has been allowed vide order dated 23.3.2013. 3. Petitioner, who is landlord, moved application for recall of the said order on the ground that it has been passed without notice or opportunity of hearing to him. The said application has been rejected on 21.5.2014 without recording any finding as to whether any notice was duly served upon the petitioner or not. 4. Thus, the petitioner has preferred this writ petition challenging both the orders dated 23.3.3013 and the order dated 21.5.2014 by which his recall application has been rejected. 5. The submission of learned counsel for the petitioner is twofold namely that the permission to built the wall could not have been granted as the Nagar Nigam Allahabad has already passed an order on 2nd November, 2012 directing for the demolition of the entire house as it is unauthorised. Secondly, the order granting permission has been passed in violation of the principles of natural justice and the petitioner's application to recall it has been rejected without recording any finding regarding service of notice or opportunity of hearing in the petition. 6. A bare reading of the order dated 23.3.2013 reveals that it is an ex parte order as no one had appeared on behalf of the petitioner. The order does not reveal that any notice was served upon the petitioner before passing the same. 7. The order dated 21.5.2014? does not record that any notice was served upon the petitioner before passing the order dated 23.3.2013. It does not even record that the petitioner was given sufficient opportunity to defend himself before the said order was passed. 8. 7. The order dated 21.5.2014? does not record that any notice was served upon the petitioner before passing the order dated 23.3.2013. It does not even record that the petitioner was given sufficient opportunity to defend himself before the said order was passed. 8. In view of the aforesaid facts and circumstances, as order impugned is ex parte without opportunity of hearing to the petitioner and that there is already an order of the Nagar Nigam directing for demolishing the entire house as on unauthorised, I am of the view that the matter requires reconsideration by the prescribed authority i.e. the court of first instance. 9. Accordingly, impugned orders dated 21.5.2014 and 23.3.2013 are quashed and the matter is remanded to the trial court for decision afresh on the application paper No.4A of the respondent No.1 filed under Section 28(4) of the Act. The writ petition is allowed with the aforesaid observation.