Allowed

Brij Lal v. Addi. Disi. Collector, and Ors.

Rajasthan HC24 Feb 2015CW/5150/2013

Case brief

AI extract

What is this about?

This court allowed a writ petition challenging two orders passed ex parte against the petitioner regarding the cancellation of a land patta. The High Court quashed the orders due to insufficient proof of service by affixation, noting the process report lacked details on residence identification, the petitioner's absence, and the identity of the witnesses.

What did the court decide?

The ex parte orders dated 22.12.08 and 22.7.10 are set aside and remanded to the Additional Collector, Hanumangarh, for a fresh hearing within two months.

Brij Lal Vs Addi. Disi. Collector, and Ors. — Property and Title | Rajasthan HC (2015)

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BRIJ LAL VS. ADDITIONAL DISTRICT COLLECTOR, HANUMANGARH & ORS. (S.B.CIVIL WRIT PETITION NO.5150/13)

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BRIJ LAL VS. ADDITIONAL DISTRICT COLLECTOR, HANUMANGARH & ORS. (S.B.CIVIL WRIT PETITION NO.5150/13)

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Dated:- 24.2.15.

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HON'BLE MR.JUSTICE SANGEET LODHA

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Mr.N.S.Rathore, for the petitioner. Mr.Manish Patel, Additional Government Counsel. Mr.V.K.Sharma, for the respondent no.3.

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This writ petition is directed against order dated 22.12.08 passed by the Additional Collector, Hanumangarh, whereby a patta of a plot issued in favour of the petitioner stands cancelled and order dated 22.7.10, whereby an application preferred by the petitioner for setting aside the aforesaid ex parte order dated 22.12.08 cancelling the patta, stands rejected.

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Precisely, the case of the petitioner is that the notice of the revision petition filed on behalf of the respondent no.3, issued by the Additional Collector, Hanumangarh, was never served upon him and therefore, the ex parte order passed by the revisional authority setting aside the patta issued in his favour, deserves to be set aside. Learned counsel submitted that on 6.11.08, the notice was directed to be served upon the petitioner by way of registered post, however, no notice as directed was issued and straight away on 19.12.08, taking the service of notice upon the petitioner by affixation as sufficient, the order proceeding ex

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BRIJ LAL VS. ADDITIONAL DISTRICT COLLECTOR, HANUMANGARH & ORS. (S.B.CIVIL WRIT PETITION NO.5150/13)

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parte was passed. Learned counsel submitted that the application preferred by the petitioner for setting aside order passed ex parte, has also been rejected by the revisional authority treating the service of notice upon the petitioner as sufficient. Learned counsel submitted that the report of the process server does not disclose the circumstances under which he effected the service by way of affixation of notice. Drawing the attention of this court to the report of the process server, learned counsel submitted that it does not even disclose the name and address of the person who identified the house and in whose presence the copy of the notice was affixed. Learned counsel submitted that the report does not disclose the date of affixation of the notice either. It is submitted that out of two persons, who have put their signature on the back of the notice, alleged to have been served, one is the son of the revision petitioner, the respondent no.3 herein. Learned counsel submitted that in absence of the service of the notice, the petitioner could not appear before the revisional authority and therefore, the orders impugned deserve to be set aside.

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On the other hand, the counsels appearing for the respondents submitted that for the affixation of the notice, no separate order was required to be passed by the revisional authority. It is submitted that since, the petitioner was not

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BRIJ LAL VS. ADDITIONAL DISTRICT COLLECTOR, HANUMANGARH & ORS. (S.B.CIVIL WRIT PETITION NO.5150/13)

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present at his residence and therefore, personal service could not be effected upon him. It is submitted that the service by affixation of the notice in the prescribed mode of service and therefore, the revisional authority has committed no error in treating the service upon the petitioner as sufficient.

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I have considered the rival submissions and perused the material on record.

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It is to be noticed that the revision petition accompanied by an application under Section 5 of Limitation Act, questioning the legality of the resolution dated 5.10.02 passed by the Gram Panchayat, Chahuwali, allotting the disputed plot to the petitioner was filed by the respondent no.3 on 4.8.08. The revision petition was registered and notices were directed to be issued to the non petitioner therein. On 25.8.08, the notices were not received served or unserved and therefore, fresh notices were directed to be issued. On the next date i.e. 15.9.08, again an order was passed that on filing, the notices may be issued for service upon non petitioners. Similar orders were passed on 3.10.08 and 20.10.08 as well. On 6.11.08, the respondent herein was directed to file notice for service upon the petitioner herein by way of registered post. It appears that the notices as directed were not filed, however, on 19.12.08, the service upon the petitioner herein was treated to be complete by

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BRIJ LAL VS. ADDITIONAL DISTRICT COLLECTOR, HANUMANGARH & ORS. (S.B.CIVIL WRIT PETITION NO.5150/13)

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way of affixation of notice.

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It is pertinent to note that the notice alleged to have been affixed was issued on 21.10.08 for the date of hearing fixed as 6.11.08, however, the report of the process server does not bear the date of affixation of the notice. The report of the process server does not state the time of the attempts made, if any, for personal service of the notice. It does not state that the petitioner herein was absent from his residence at the time when service was sought to be effected on him at his residence and there was no likelihood of his being found at the residence within a reasonable time and there was no agent or other person available to accept the service of the notice. The report also does not disclose the name of the person who identified the house where the petitioner resides and in whose presence, copy of the notice was affixed. In the back of the served notice, above the report of the process server, signature of two persons appears , but no further details regarding their identity, is disclosed. It is not disputed before this court by the learned counsel appearing for the respondents that one of the person, whose signature appears on the back of the notice, is the son of the respondent no.3 herein. In this view of the matter, ignoring the absence of disclosure of the circumstances wherein the service was effected by affixation and the manner in which the service was effected

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BRIJ LAL VS. ADDITIONAL DISTRICT COLLECTOR, HANUMANGARH & ORS. (S.B.CIVIL WRIT PETITION NO.5150/13)

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by affixation, the revisional authority has erred in treating the service of notice upon the petitioner herein as sufficient.

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Thus, on the facts and in the circumstances of the case noticed above, this court is firmly of the opinion that the service of the notice upon the petitioner herein by affixation does not inspire confidence and therefore, the ex parte order passed against the petitioner deserves to be set aside.

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In the result, the writ petition is allowed. The orders impugned dated 22.12.08 and 22.7.10 passed by the Additional Collector, Hanumangarh are set aside. The matter shall stand remanded to the Additional Collector, Hanumangarh, for passing the order afresh, after giving an opportunity of hearing to the parties. The parties shall appear before the Additional Collector, Hanumangarh on 19.3.15. The revision petition shall be decided by the Additional Collector, Hanumangarh expeditiously, in any case, within a period of two months from the date of receipt of certified copy of this order. No order as to costs.

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(SANGEET LODHA),J.

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Aditya/

Brij Lal v. Addi. Disi. Collector, and Ors.

Case brief

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Brij Lal v. Addi. Disi. Collector, and Ors.

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