WPMS/41961/2000 of JAGPAL and ORS. Vs COLLECTOR HARIDWAR and ORS on 29 December 2008

Conclusion

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 1265 of 2001 (M/S)

Jagpal and two others.

…… Petitioners.

Versus

Collector, Haridwar and two others.

… Respondents.

Sri M.S.Tyagi, learned counsel for the petitioners. Sri Sudhir Kumar, Brief Holder for the State-respondents No. 1 and 2.

Date December 29, 2008.Hon’ble B.S.Verma, J.

Heard learned counsel for the parties and perused the record. Admit the writ petition.

The petitioners have sought a writ of certiorari quashing the impugned orders dated 31-8-2000 passed by the respondent no. 1 in Revision No. 33/2000 and dated 30-3-2000 and 26-5-2000 passed by respondent no.2 (Annexure Nos. 4, 1 and 2 respectively to the writ petition).

According to the petitioners, proceeding under Section 122-B of the U.P.Z.A. and L.R. Act was initiated against the petitioners for illegal occupation of land of Khasra No. 242 belonging to Gaon Sabha, Prahladpur, Tehsil Laksar, district Haridwar, but no notice was served upon the petitioners. The notice under Section 49-Ka was never served on them and the order impugned dated 30-3-2000 was passed against the petitioners without affording opportunity of hearing to them.

The petitioners filed restoration application, which too was dismissed by order dated 26-5-2000 by respondent no.2. Aggrieved, the petitioners preferred revision before respondent no.1. The respondent no.1, without considering the fact that no notice was served upon the petitioners before passing the impugned order dated 30-3-2000, did not find favour with the petitioners and dismissed the revision petition. Hence this petition.

Counter Affidavit has been filed by the State. The affidavit was sworn in by Arvind Kumar, the then Lekhpal of village Prahladpur. In the counter affidavit, it has been stated that notice was served on the petitioners through petitioner no. 1 Jagpal, who is the real brother and member of joint family.

In the memo of revision, which was preferred by the petitioners, in ground no. 2 it was asserted that no notice (49-Ka) was served on them and the service upon petitioner Jagpal had been shown fraudulently. The thumb impression of Jagpal affixed on the notice is a forged one. However, the revisional court in its order 31-8-2000 has not given any finding whether the thumb impression of Jagpal on the notice 49-Ka was forged or not.

Having considered the contentions of parties’ counsel and having perused the impugned orders, in my view, it cannot be said that the service of notice upon the petitioners was sufficient. No notice worth the name was served at all upon petitioners no.2 and 3. Hence the impugned order dated 30-3-2000 passed by the respondent no.2 is not tenable. Consequently, the order dated 26-5-2000 passed by respondent no.2 and the order dated 31-8-2000 passed by the respondent no.1 are liable to be set aside, so far as the same relates to the revision no. 33 of 2000 arising out of Case No. 35 of 2000 Gaon Sabha Vs. Jagpal and others. Accordingly, the writ petition is liable to be allowed. It is a fit case for remand to the Tehsildar, Laksar for decision afresh.

The writ petition is allowed. The impugned orders including the order dated 30-8-2000 passed by the respondent no.1 so far as it relates to the petitioners, are set aside. The matter is remanded to the respondent no.2, i.e. Tehsildar/Assistant Collector Laksar, District Haridwar, who shall decide the matter afresh in accordance with law, after giving adequate opportunity of hearing and filing objection to the petitioners.

Interim order dated 28-9-2000 is vacated.

( B.S.Verma, J. )