Allahabad High Court
Mahipal Singh And 5 Others vs Maharani Awantika Devi Virajman ... on 5 January, 2021
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- MATTERS UNDER ARTICLE 227 No. - 7044 of 2019
Petitioner :- Mahipal Singh And 5 Others
Respondent :- Maharani Awantika Devi Virajman And 10 Others
Counsel for Petitioner :- Suresh Chandra Varma,Avneesh Tripathi,Deo Dayal
Hon'ble Prakash Padia,J.
Heard Sri Avneesh Tripathi, learned counsel for the petitioners.
The petitioners have preferred the present writ petition under Article 227 of the Constitution of India with the following prayer:-
"A. Issue an order or direction setting aside the orders dated 03.08.2019 passed by the Additional District Judge Court No.9 Bulandshahr and order dated 27.08.2016 passed by Additional District Judge Bulandshahr."
The petition was duly entertained and vide order dated 26.09.2019 notices were issued to respondents by registered post. Pursuant to the same, steps were duly taken by the petitioner. From perusal of the officer reports dated 23.10.2019 and 22.10.2020, it is clear that notices issued to the respondents deemed to be served. Despite service, nobody is appeared on behalf of the respondents, in the circumstances, the Court is of the opinion that the matter could be decided finally.
It is argued by learned counsel for the petitioner that ex-parte order was passed by the Additional District Judge Court No.9 Bulandshahar in Civil Revision No.138 of 2009 (Maharani Awantika Devi and others Vs. Mahipal and others) Since the aforesaid order was passed without hearing to the petitioners, an application to recall the aforesaid order was filed by them on 16./17.9.2016.
In the application, various grounds were taken It is argued that in paragraph 4 of the aforesaid application, it is stated that the petitioners never refused to accept the notice and in fact notices were never served upon the petitioners on their correct address. It is argued that without considering the aforesaid aspect of the matter, orders dated 03.08.2019 has been passed by the Additional District Judge Court No.9 Bulandshahr.
Heard learned counsel for the petitioners and perused the record.
From perusal of the order dated 03.08.2019, it is clear that the aforesaid order is absolutely non-speaking, though various grounds were taken in the recall application but none of them were taken into consideration by the court below which passing the impugned order. The Supreme Court in case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota Vs. M/s Shukla and Brothers reported at 2010 AIR SCW 3277 dealt with the principles of law while exercising power of judicial review on administrative action. It was held by the Supreme Court in the aforesaid case that the doctrine of audi alteram partem has three basic essentials-
i) A person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard.
ii) The concerned authority should provide a fair and transparent procedure.
iii) The authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order.
Paragraph 9 of the aforesaid judgment is quoted below-
"9. The increasing institution of cases in all Courts in India and its resultant burden upon the Courts has invited attention of all concerned in the justice administration system. Despite heavy quantum of cases in Courts, in our view, it would neither be permissible nor possible to state as a principle of law, that while exercising power of judicial review on administrative action and more particularly judgment of courts in appeal before the higher Court, providing of reasons can never be dispensed with. The doctrine of audi alteram partem has three basic essentials. Firstly, a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard. Secondly, the concerned authority should provide a fair and transparent procedure and lastly, the authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order. This has been uniformly applied by courts in India and abroad."
In view of the same, the order impugned is a non speaking order, the same is liable to be set aside and the same is hereby set aside.
The Court below is directed to pass appropriate speaking order in accordance with law on the recall application dated 16/17.9.2016 (Annexure No.5 to the writ petition) filed by the petitioners after providing opportunity of hearing to all the parties concerned.
With the aforesaid observations, the writ petition is allowed.
Order Date :- 5.1.2021
saqlain
