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2025 DIGILAW 807 (ALL)

Mohammad Rafiq v. Addl. Commissioner Admn. Gonda

2025-05-19

IRSHAD ALI

body2025
JUDGMENT : Irshad Ali, J. 1. Heard Ms. Manju Devi, learned counsel for the petitioners and learned Standing Counsel for the State-respondent. 2. By means of the present writ petition, the petitioners are challenging the order dated 31.3.1997, passed by the respondent No.2 and order dated 4.1.2001, passed by the respondent No.1. 3. Brief facts of the case are that the petitioners being landless Labourers purchased land from the recorded tenure holder after paying full consideration to him. The respondent No.4 moved an application which has been allowed by the respondent No.2 without serving notice upon the petitioners. The respondent No.2 vide ex-parte order dated 17.12.1997, rejected the claim setup by the petitioners against which a revision was filed by the petitioners, which has also been dismissed by the respondent No.2. At the time of filing of the writ petition, the petitioners were granted an interim order that in the meanwhile, the petitioners shall not be dispossessed from the property in dispute. 4. Submission of learned counsel for the petitioners is that the notice, as alleged in the impugned order, has never been served upon the petitioners. The thumb impression bearing on the notice is of another person and does not relate to the petitioners, therefore, submission of learned counsel for the petitioners is that the order is ex-parte in nature. Next submission is that in the revision, without perusing the record, the learned Additional Commissioner has affirmed the order passed by the respondent No.2. Last submission is that the Additional Commissioner has noticed the version of the petitioners that thumb impression bearing on the notice is not of the petitioners, but no finding has been returned by the Sub-Divisional Officer or by the Additional Commissioner. 5. On the other hand, learned Standing Counsel submits that the impugned order does not suffer from any infirmity or illegality and is a just and valid order. 6. I have heard the submission advanced by learned counsel for the parties and perused the material on record. 7. On perusal of the order of the Sub-Divisional Officer, it is evident that he has noticed in the order that the notice does not bear the thumb impression of the petitioners, as alleged by them, but no finding in this regard has been recorded that on what basis he came to the conclusion that the thumb impression bearing on the notice is of the petitioners. The Additional Commissioner has also affirmed the finding recorded by the respondent No.2 and came to the conclusion that the notice was served upon the petitioners. 8. In the opinion of the Court, both the courts below have committed mistake in recording no finding in regard to service of notice upon the petitioners. In paragraph-4 of the writ petition, it is specifically stated that no notice was received by the petitioners in order to contest their claim, but the respondent No.2 without considering the material as well as the provision of law, ordered that the land purchased by the petitioners is barred by fragmentation as provided under Sections 167 /168 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and has ordered that the said land be vested in favour of the State. 9. As no counter affidavit has been filed controverting the statement made in paragraph-4 of the writ petition, meaning thereby, it is admission of the respondents that prior to passing of the order, no notice was issued to the petitioners nor it was served upon them. 10. In view of the above, in the opinion of the Court there is no finding recorded in the order that how the notice was served upon the petitioners, the orders being illegal and ex-parte in nature, are liable to be set aside by this Court. 11. Accordingly, the order dated 31.3.1997, passed by the respondent No.2 and order dated 4.1.2001, passed by the respondent No.1 are quashed. The writ petition succeeds and is allowed. 12. The respondent No.2 is directed to pass a fresh order, recording reasons of service of notice upon the petitioners within a period of six months from the date of production of a certified copy of this order.