Allahabad High Court
Omkar And 2 Others vs Commissioner Devi Patan Mandal, ... on 26 October, 2023
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2023:AHC-LKO:69863
Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 5340 of 2023
Petitioner :- Omkar And 2 Others
Respondent :- Commissioner Devi Patan Mandal, Gonda And 5 Others
Counsel for Petitioner :- Nripendra Mishra
Counsel for Respondent :- C.S.C.,Pankaj Gupta
Hon'ble Saurabh Lavania,J.
Heard learned Counsel for the petitioner, Sri Hemant Pandey, learned State Counsel and Sri Pankaj Gupta, learned Counsel for the Gaon Sabha.
It appears from the record that without issuing the notice to private opposite parties, the impugned order dated 22.06.2023 was passed and taking note of the same as also in view of the order proposed to be passed by this Court, notice to the private opposite parties is dispensed with.
The present petition has been filed for the following main reliefs:-
"I. to set aside the order dated 22.06.2023 passed by the opposite party No. 1 in Revision no. 709 of 2023 (Omkar and Other Versus Ram Sewak and Others) and the order dated 19.02.1979 passed by oposite party no. 2 in case no. 33/186/380, under Section 198 of U.P.Z.A. & L.R. Act (Ram Sewak & Other Versus Jamuna Prasad & Other) contained as Annexure No. 1 & 2 to this writ petition.
II. to direction to opposite party no. 2 to 5 not to disturb the peaceful possession of petitioners."
By means of the present petition the petitioners have assailed the order dated 22.06.2023 passed by respondent no.1/Commissioner Devi Patan Mandal, Gonda, on an application preferred under Section 5 of Limitation Act, in instituting the revision challenging the order dated 19.02.1979 passed by respondent no.2/Additional Collector, District Bahraich, in Case No. 33/186/380 (Ram Sewak and Others Versus Jamuna Prasad and Others), which was instituted under Section 198 of U.P.Z.A. & L.R. Act, 1950 (in short 'Act of 1950').
Vide order dated 19.02.1979, the respondent no.2 cancelled the 'Patta' granted to Jamuna Prasad (father of petitioner nos. 1 and 2 namely Omkar and Shyam) and also cancelled the 'Patta' of petitioner no.3/ Ram Chandar son of Siyaram.
Assailing the order dated 19.02.1979, the petitioners filed the revision under Section 333 of the Act of 1950 alongwith application for condonation of delay in preferring the revision which was registered as Revision No.Revision no. 709 of 2023 (Omkar and Other Versus Ram Sewak and Others). Vide order dated 22.06.2023 the respondent no.1 rejected the application for condonation of delay and consequently dismissed the revision. The order dated 22.06.2023 on reproduction reads as under:-
"i=koyh izLrqrA fuxjkuhdrkZ ds fo}ku vf/koDrk ,oa fo}ku Mh0th0lh0 ¼jktLo½ dks fuxjkuh dh xzkg;rk ij lqukA
;g fuxjkuh vfrfjDr dysDVj cgjkbp }kjk ikfjr vkns'k fnukad 19-02-1979 ds fo:} tsM0,0,.M ,y0vkj0,DV dh /kkjk 333 ds varxZr vk;qDr U;k;ky; esa fnukad 20-05-2023 dks vR;f/kd foyEc ls ;ksftr dh x;h gSA foyEc ds lEcU/k esa fe;kn vf/kfu;e dh /kkjk 5 ds izkFkZuk i= fnukad 20-05-2023 esa foyEc e"kZ.k gsrq tks vk/[email protected] n'kkZ;k x;k gS og i;kZIr ,oa larks"ktud ugh gSA vr% ,slh fLFkfr esa fuxjkuhdrkZ }kjk izLrqr fuxjkuh vR;f/kd dkyf/kr gksus ds dkj.k xzkg;rk ds Lrj ij gh fujLr fd;s tkus ;ksX; gSA
vr% mijksDr ds ifjizs{; esa izLrqr fuxjkuh vR;Ur dkyckf/kr gksus ds dkj.k xzkg;rk ds Lrj ij gh fujLr dh tkrh gSA i=koyh nkf[ky nQ~rj gksA"
Challenging the order dated 22.06.2023 passed by respondent no.1, learned counsel for the petitioners stated that a perusal of the application for condonation of delay(annexure no. 4 to the present petition), which was preferred on 25.05.2023, would show that in the application it has specifically been indicated that on 09.03.2023, the petitioners came to know about the cancellation of 'Patta' and thereafter on 10.03.2023, the petitioners contacted to an Advocate at Civil Court Bahraich, who searched the file and informed regarding the order dated 19.02.1979, whereby the 'Patta' in favour of petitioners was cancelled and on account of Second Saturday(11.03.2023) and Sunday (12.03.2023), an application for getting a certified copy of the order dated 19.02.1979 was preferred on 13.03.2023 and the same was prepared on 28.03.2023 and thereafter was received on 05.04.2023 but while rejecting the application for condonation of delay, the authority concerned has not considered all these facts, thus the order is non speaking order.
He further submitted that Khatauni of Fasli year 1430-1435 (01 July 2022 to 30 June 2028) indicates that petitioner nos. 1 and 2 are in possession over the property in issue.
On being asked regarding petitioner no.3, the learned Counsel for the petitioners says that on account of urgency in the matter the Khatauni related to petitioner no.3 could not be placed on record, but the fact is that petitioner no. 3 is also in possession over the property in issue.
It is also stated that it is settled principle of law that reasons are heart beat of order and even the administrative authority should record the reasons, if the order affects the right of the concerned party. Reference has also been made to the judgment of this Court passed in the case of Rakesh Kumar Pandey Versus State of U.P. & Others( Service Single No. 18642 of 2018) decide on 20.02.2019.
The aforesaid principle regarding recording the reasons, could not be disputed by learned Counsel for the side opposite.
Considered the submission of learned Counsel for the parties and perused the records as also the judgment referred herein above.
From the impugned order dated 22.06.2023, quoted above, it is apparent that the order is non speaking as the facts seeking condonation of delay in filing the revision stated in the application for condonation of delay, indicated above, have not been considered by the respondent no.1.
Further, it prima facie appears from the record including the Khatauni of Fasli Year 1430-1438 that the petitioners are in possession of the land in issue and the order dated 19.02.1979, affecting the rights of the petitioners, has not been implemented till date and on coming to know about the same, the revision in issue alongwith an application for condonation of delay was filed and all these facts are also required to be considered.
Thus, for the reasons aforesaid, this Court is of the view that interference is required in the matter. Accordingly, the petition is allowed. The order dated 22.06.203 is set aside. The matter is remanded back to the respondent No.1-Commissioner Devi Patan Mandal, Gonda, who shall look into the matter and pass a fresh, reasoned and speaking order in accordance with law expeditiously.
Order Date :- 26.10.2023
Jyoti/-
