1 Court No. - 6 Case :- WRIT - C No. - 12732 of 2010 Petitioner :- Phool Chandra And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- H.M. Srivastava,Neeraj Srivastava Respondent Counsel :- C.S.C.,D.D. Chauhan Hon'ble Prakash Krishna,J.
Challenging the order dated 21st August, 2008 passed by the Collector
Kannauj in Case No. 11 of 2002, State Vs. Meghnath & others, under Section
198(4) U.P.Z.A. & L.R. Act, the present writ petition has been filed, which was
presented on 10th November, 2009. The office has reported that the writ petition is
barred by laches of 356 days.
Sri. H.M. Srivastava, learned counsel for the petitioner submits that as the
petitioners had no knowledge about the impugned order, the delay is liable to be
condoned. He further submits that although in the impugned order, it is mentioned
that the notices were issued to the respondents in the proceedings, which were
served and after service, counsel was also engaged but subsequently no objection
was filed, but as a matter of fact, the present petitioners were never served nor they
had engaged any counsel. He referred paragraph 23 of the writ petition. The said
paragraph is reproduced below:
“That it is mentioned in the impugned order that
after registration of case notices were issued which
were served and on 15.03.2004 Advocates were
engaged. It may be correct with respect to few persons
but petitioners were not served any notice nor they
engaged any counsel in Case No. 11 of 2002 before
respondent No. 2.”
Taking the case of the petitioners on its face value, it is evident if they were
not served and the the court below wrongly proceeded ex parte against them, the
appropriate remedy for the petitioners is to approach the authority concerned to
recall the said order. There is no doubt that if the authority concerned comes to the
conclusion that the impugned order has been passed without giving any opportunity
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to the petitioners, it will recall the ex parte order so far as the petitioners are
concerned.
The entire record is available there and the trial authority can examine the
plea of service raised herein more appropriately. Except making a bald statement
that the petitioners were not served, copies of relevant documents i.e. of order sheet,
service report etc. have not enclosed. From the pleadings as it stands todays, it is not
possible to decide the said plea due to lack of material by this Court. This petition
has been jointly filed by thirty persons, and each one may have separate case.
Apart from the above, it was rightly pointed out by Sri. Babulal Ram, learned
Standing Counsel that the impugned order is revisable before the Commissioner.
Taking into consideration the above facts, this Court is not inclined to
interfere in the present writ petition rather to relegate the petitioners to alternative
remedy available to them.
The writ petition is dismissed on the ground of alternate remedies available
to the petitioners.
Order Date :- 8.7.2010
MK/