# Mohammad Rafiq & Ors v. Addl. Commissioner Admn. Gonda & Ors

- **Citation:** (2025) 5 ILRA 608
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-19
- **Case number:** Writ C No. 1000151 of 2001
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-rafiq-ors-v-addl-commissioner-admn-gonda-ors-53420
- **Pages:** 3

## Headnote

(A) Revenue Law - Land dispute - right
to fair hearing - U.P. Zamindari Abolition
and Land Reforms Act, 1950 - Sections
167/168 - Vesting of land under U.P.
Zamindari Abolition and Land Reforms
Act, 1950 - Validity of ex-parte orders
without proof of service of notice on
purchasers of land alleged to be hit by
fragmentation provisions - An order
affecting
rights
cannot
be
passed
without proof of proper service of notice
- absence of finding on service renders
the order illegal and ex-parte - Failure to
record a finding on the service of notice
vitiates the proceedings - admission
through non-filing of counter affidavit
strengthens petitioner's claim - An order
passed without recording a finding on
the proper service of notice is illegal and
liable to be set aside as ex-parte. (Para -
7 to 10)

Petitioners, landless labourers, purchased land -
orders under Ss. 167/168 U.P.Z.A. & L.R. Act
vesting land in State were passed ex-parte
without proof of notice service - no rebuttal filed
by respondents - leading to an ex-parte order
5 All. Mohammad Rafiq & Ors. Vs. Addl. Commissioner Admn. Gonda & Ors.
609
that was affirmed in revision - hence petition.
(Para - 3 to 4, 8 to 9)

HELD: - Both the authorities below committed
a mistake in recording no finding on service of
notice upon the petitioners, and in view of the
unrebutted statement that no notice was
received, the impugned orders dated 31.3.1997
and 4.1.2001 were illegal and ex-parte in
nature, and thus liable to be set aside.
Respondent No. 2 was directed to pass a fresh
order, with reasons regarding the service of
notice, within six months. (Para - 8 to 12)

Petition Allowed. (E-7)

## Text

608 INDIAN LAW REPORTS ALLAHABAD SERIES
127. We have already clarified the
scope of the inquiry/decision/order passed
by the Sub Divisional Magistrate which is
referred in the letter dated 16.09.2020,
therefore, in view of what has already been
stated hereinabove we have no hesitation to
state that the notices under section 15 (9)
being based wholly and entirely on the
order dated 14.08.2020 and the letter dated
16.09.2020, do not satisfy the jurisdictional
prerequisites referred above and these
notices are liable to be quashed.

128. We accordingly quash these
notices dated 18.11.2020 in Writ C No. 661
of 2021, Writ C No. 684 of 2021 and Writ C
No. 687 of 2021. It shall, however, be open
for the authority to proceed against the
petitioners afresh in the light of the discussion
made hereinabove, if there is a cause to
proceed against them.

129. An objection had been raised by
Shri Ratnesh Chandra, learned counsel for the
Authority that these are mere notices,
therefore, the petitioner should be asked to
respond to the same and whatever pleas are
raised by them, they would be considered by
the Vice Chairman, Lucknow Development
Authority. We are not persuaded by this
submission for reasons which are obvious
from the discussion made earlier. When the
jurisdictional prerequisites are themselves not
satisfied, why should we make the petitioners
suffer the proceedings under section 15 (9) of
the Act 1973 based on apparently illegal
notices issued to them. We, therefore, reject
this submission, subject to the liberty
granted.

130. Writ C No. 684 of 2021, Writ
C No. 661 of 2021 and Writ C No. 687 of
2021 are allowed in part in terms aforesaid.
Writ C No. 7005 of 2023 is disposed of in
terms of the discussion made hereinabove.
----------
(2025) 5 ILRA 608
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.05.2025

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ C No. 1000151 of 2001

Mohammad Rafiq & Ors. ...Petitioners
Versus
Addl. Commissioner Admn. Gonda & Ors.
 ...Respondents

Counsel for the Petitioners:
H.D. Srivastava, Gyan Singh Chauhan,
Pramod Kumar Singh, R.B. Singh

Counsel for the Respondents:
C.S.C., R.N. Gupta

(A) Revenue Law - Land dispute - right
to fair hearing - U.P. Zamindari Abolition
and Land Reforms Act, 1950 - Sections
167/168 - Vesting of land under U.P.
Zamindari Abolition and Land Reforms
Act, 1950 - Validity of ex-parte orders
without proof of service of notice on
purchasers of land alleged to be hit by
fragmentation provisions - An order
affecting
rights
cannot
be
passed
without proof of proper service of notice
- absence of finding on service renders
the order illegal and ex-parte - Failure to
record a finding on the service of notice
vitiates the proceedings - admission
through non-filing of counter affidavit
strengthens petitioner's claim - An order
passed without recording a finding on
the proper service of notice is illegal and
liable to be set aside as ex-parte. (Para -
7 to 10)

Petitioners, landless labourers, purchased land -
orders under Ss. 167/168 U.P.Z.A. & L.R. Act
vesting land in State were passed ex-parte
without proof of notice service - no rebuttal filed
by respondents - leading to an ex-parte order
5 All. Mohammad Rafiq & Ors. Vs. Addl. Commissioner Admn. Gonda & Ors.
609
that was affirmed in revision - hence petition.
(Para - 3 to 4, 8 to 9)

HELD: - Both the authorities below committed
a mistake in recording no finding on service of
notice upon the petitioners, and in view of the
unrebutted statement that no notice was
received, the impugned orders dated 31.3.1997
and 4.1.2001 were illegal and ex-parte in
nature, and thus liable to be set aside.
Respondent No. 2 was directed to pass a fresh
order, with reasons regarding the service of
notice, within six months. (Para - 8 to 12)

Petition Allowed. (E-7)

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Ms. Manju Devi, learned
counsel for the petitioners and learned
Standing Counsel for the State-respondent.

2. By means of the present writ
petition, the petitioners are challenging the
order dated 31.3.1997, passed by the
respondent No.2 and order dated 4.1.2001,
passed by the respondent No.1.

3. Brief facts of the case are that the
petitioners being landless Labourers purchased
land from the recorded tenure holder after
paying full consideration to him. The
respondent No.4 moved an application which
has been allowed by the respondent No.2
without serving notice upon the petitioners.
The respondent No.2 vide ex-parte order dated
17.12.1997, rejected the claim setup by the
petitioners against which a revision was filed
by the petitioners, which has also been
dismissed by the respondent No.2. At the time
of filing of the writ petition, the petitioners
were granted an interim order that in the
meanwhile, the petitioners shall not be
dispossessed from the property in dispute.

4. Submission of learned counsel
for the petitioners is that the notice, as
alleged in the impugned order, has never
been served upon the petitioners. The thumb
impression bearing on the notice is of another
person and does not relate to the petitioners,
therefore, submission of learned counsel for
the petitioners is that the order is ex-parte in
nature. Next submission is that in the
revision, without perusing the record, the
learned
Additional
Commissioner
has
affirmed the order passed by the respondent
No.2. Last submission is that the Additional
Commissioner has noticed the version of the
petitioners that thumb impression bearing on
the notice is not of the petitioners, but no
finding has been returned by the SubDivisional Officer or by the Additional
Commissioner.

5. On the other hand, learned
Standing
Counsel
submits
that
the
impugned order does not suffer from any
infirmity or illegality and is a just and valid
order.

6. I have heard the submission
advanced by learned counsel for the parties
and perused the material on record.

7. On perusal of the order of the
Sub-Divisional Officer, it is evident that he
has noticed in the order that the notice does
not bear the thumb impression of the
petitioners, as alleged by them, but no
finding in this regard has been recorded
that on what basis he came to the
conclusion that the thumb impression
bearing on the notice is of the petitioners.
The Additional Commissioner has also
affirmed the finding recorded by the
respondent
No.2
and
came
to
the
conclusion that the notice was served upon
the petitioners.

8. In the opinion of the Court, both
the courts below have committed mistake
610 INDIAN LAW REPORTS ALLAHABAD SERIES
in recording no finding in regard to service
of
notice
upon
the
petitioners.
In
paragraph-4 of the writ petition, it is
specifically stated that no notice was
received by the petitioners in order to
contest their claim, but the respondent No.2
without considering the material as well as
the provision of law, ordered that the land
purchased by the petitioners is barred by
fragmentation as provided under Sections
167/168 of the U.P. Zamindari Abolition
and Land Reforms Act, 1950 and has
ordered that the said land be vested in
favour of the State.

9. As no counter affidavit has been
filed controverting the statement made in
paragraph-4 of the writ petition, meaning
thereby, it is admission of the respondents
that prior to passing of the order, no notice
was issued to the petitioners nor it was
served upon them.

10. In view of the above, in the
opinion of the Court there is no finding
recorded in the order that how the notice
was served upon the petitioners, the orders
being illegal and ex-parte in nature, are
liable to be set aside by this Court.

11. Accordingly, the order dated
31.3.1997, passed by the respondent No.2
and order dated 4.1.2001, passed by the
respondent No.1 are quashed. The writ
petition succeeds and is allowed.

12. The respondent No.2 is directed
to pass a fresh order, recording reasons of
service of notice upon the petitioners
within a period of six months from the date
of production of a certified copy of this
order.
----------
(2025) 5 ILRA 610
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2025

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ C No. 1000337 of 2015

Mohd. Mustkeem ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Satish Kumar Sharma, Manjusa, Mohan
Singh, Rupesh Kumar Gupta

Counsel for the Respondents:
C.S.C., Nishant Shukla

(A) Administrative Law - Fair Price Shop
License - Cancellation of license and
principles of natural justice - Essential
Commodities Act, 1955 - Uttar Pradesh
Schedule
Essential
Commodities
Distribution Order, 2004 - Section 28(3) -
Control Order, 2016 - Government Order
dated 29.07.2004 - Doctrine of audi
alteram partem - A fair price shop license
is not a fundamental right under Article
19(1)(g) - Relationship between the State
and a licensee is that of a principal and an
agent - Inquiry for cancellation is
summary
in
nature
and
requires
adherence to the broad principles of
natural justice, not a detailed, full-fledged
inquiry akin to a departmental inquiry -
State as principal may terminate agency
contract
subject
to
non-arbitrariness.
(Para - 22, 28, 31, 44 to 47, 52, 53, 58)

A fair price shop licensee's license was initially
cancelled by the Sub Divisional Magistrate -
which was later set aside on appeal for being ex
parte - After a remand, the license was again
cancelled - subsequent appeal was dismissed -
leading to the instant writ petition. (Para - 2 to
14)

HELD: - Adequate opportunity was granted to
the petitioner, and there was no violation of the