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2020 DIGILAW 481 (UTT)

Jernail Singh v. State Of Uttarakhand

2020-11-23

SHARAD KUMAR SHARMA

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JUDGMENT Sharad Kumar Sharma, J. - The petitioner in the present Writ Petition, has given a challenge to the order dated 26.05.2010, as was passed by the respondent no.2, i.e. Commissioner Kumaun Mandal, Nainital, whereby, the land which was allotted to him under the provisions of the Ceiling Act, has detailed in the corrected order dated 06.10.2010, have been cancelled on the ground that, the petitioner had violated the allotment order, in terms of the allotment dated 30.08.1991. The proceedings of the cancellation of patta, under Sub-section 4 of Sub-section 27 of the Ceiling Act, was initiated against the petitioner on the basis of the report submitted by the District Magistrate, in which, it was observed that the petitioner had violated the terms and conditions of the allotment and has wrongfully on 10.11.1999, had sold the property to one Mr. Anup Singh Patwal. 2. Be that as it may, the grievance of the learned counsel for the petitioner, in the present Writ Petition, is that, the notices of the said proceedings was not served upon him and as such he could not get an effective opportunity to raise his contention and defend himself in the proceedings before the court below, which is mandatorily contemplated under the provisions contained under Section 27 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960. 3. On the contrary, the argument of Mr. Sudhir Singh, learned Standing Counsel is that, in fact, if the impugned order is itself is taken into consideration, it reflects that, as per the report of the process serve various steps was taken by the respondent for ensuring the services of the notices on the petitioner, but, the same could not be served because he was not made available in the village in question, hence, based on the response given by the Collector on 17.04.2009, and the report of the Tehsildar, Ramnagar dated 16.04.2009, the Court of respondent no.2, had proceeded with the cancellation of the patta, which was granted in favour of the petitioner under Section 27 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, alleging it to be in violation of the terms of the allotment dated 30.08.1991. 4. 4. However, having heard the learned counsel for the parties and after scrutinizing the impugned order, though, the process server has been reported to have attempted to serve the notices on the petitioner on the various dates; as referred in the impugned order dated 26.05.2010, but, the fact which reflects and is quite apparent also is that those notices were not ever served in view of the report of the process server, because it has been reported that the petitioner was not found to be made available in the village in question, hence, in view of the said findings otherwise, this Court is of the view that, in the absence of the notices being served on the petitioner due to his non availability in the village, the petitioner could not avail an effective opportunity to defend his case, as against the proceedings of the cancellation of patta, under Section 27 (4) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960. 5. In that view of the matter, since, an effective opportunity to defend himself was not provided to the petitioner, hence, this Writ Petition would stand allowed and the impugned order dated 26.05.2010, and the corrected order dated 06.10.2010, would hereby stand quashed subject to the following conditions:- (i) The petitioner has made a statement that he would ensure his appearance before the Commissioner, and, it would be deemed that the notice of the said proceedings have been served upon him and accepted in the writ proceedings in pursuance to the today's judgment rendered in the present Writ Petition. (ii) The petitioner would positively put his appearance and serve the certified copy of this order to the Court of the respondent no.2, positively within a period of two weeks from today. (iii) As soon as, the petitioner serves the copy, the Commissioner is directed to decide the matter exclusively on its own merits, thereafter, within a period of six weeks, thereafter. (iv) No fresh notices are required to be sent by the Commissioner to the petitioner, in view of the statement made by the counsel for the petitioner, that, he ensures that he would put in appearance before the Commissioner to participate in the proceedings under Section 27 (4) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960. (iv) No fresh notices are required to be sent by the Commissioner to the petitioner, in view of the statement made by the counsel for the petitioner, that, he ensures that he would put in appearance before the Commissioner to participate in the proceedings under Section 27 (4) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960. (v) If the petitioner does not serve the certified copy of today's judgment or, if he does not render an effective assistance to the Court of respondent no.2, then would be open for the Commissioner to decide the matter afresh, even in his absence. 6. Subject to the aforesaid conditions, the Writ Petition is allowed. The impugned orders are quashed.