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2011 DIGILAW 2232 (ALL)

MOHAMMAD SHARIF v. STATE OF U. P.

2011-09-22

A.P.SAHI

body2011
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri Bimal Prasad, learned counsel for the petitioner and Sri Nitin Kumar Agrawal, learned counsel for Nagar Palika Parishad. Sri Chauhan has appeared for the Gaon Sabha and learned Standing Counsel for respondent Nos. 1 to 3. 2. The challenge in this petition is to the initiation of the proceedings under Section 122-B against the petitioner on the ground that the petitioner has violated the provisions of Section 122-B of the U.P. Zamindari Abolition & Land Reforms Act causing damage to the property vested in the respondent No. 5 local authority. 3. A Notice was issued to the petitioner, who filed an objection to the same contending that the notice itself is invalid inasmuch as it has been initiated at the instance of one Radhey Shyam Sharma under his signature, who is only a Member of the local Nagar Palika Parishad and he did not have any authority under the provisions of Rule 115-D of the 1952 Rules to have initiated the said proceedings. Learned counsel for the petitioner submits that the aforesaid aspect has been completely misconstrued by the authorities and the objection of the petitioner has been wrongly rejected. The revision filed against the same has been dismissed hence this petition. 4. Sri Bimal Prasad has invited the attention of the Court to the provisions of 122-B read with Rule 115-D of the 1952 Rules to contend that once the very notice has been initiated by an unauthorized person, the entire proceedings will fall through and, therefore, the petitioner cannot be called upon to file any response to an invalid notice. He submits that the words “local authority” as occurring in sub-Rule (5) of Rule 115-C does not include a Member of the Nagar Palika Parishad entitled to initiate such proceedings. 5. Learned counsel for the Parishad, learned counsel for Gaon Sabha and learned Standing Counsel contend that the proceedings can be initiated even otherwise on facts coming to the notice of the Collector in view of the provisions of 115-D (1) (d). Accordingly, the notice cannot be said to invalid on that count. 6. Learned counsel for Nagar Palika Parishad has further invited the attention of the Court to the notice, which has been filed as Annexure-5, to contend that the notice has been duly authorized by the competent authority which finds endorsed on the said application moved by Mr. Accordingly, the notice cannot be said to invalid on that count. 6. Learned counsel for Nagar Palika Parishad has further invited the attention of the Court to the notice, which has been filed as Annexure-5, to contend that the notice has been duly authorized by the competent authority which finds endorsed on the said application moved by Mr. Radhey Shyam Sharma. Thus, it is not only the Form submitted by Sri Radhey Shyam Sharma but also the orders endorsed thereon by the Tehsildar that the notice has been issued under Form 49-C of the U.P. Zamindari Abolition & Land Reforms Rules 1952. He, therefore, submits that not only in view of the provisions referred to herein above but also on facts the notice does not suffer from any invalidity hence the impugned order does not call for any interference. 7. Having heard learned counsel for the parties, it is evident that the power to initiate proceedings for damage to the property of the Gaon Sabha or local authority can be initiated under Section 122-B and the provisions of the 1952 Rules have been made mutatis mutandis applicable by virtue of sub-Rule (5) of Rule 115 (D) of the 1952 Rules. The notice, therefore, can be issued and not only this, the issuance of the notice can be made on the basis of the facts otherwise coming to the notice of the Collector as provided for under Rule 115-D (1) (d) of the 1952 Rules. If Sri Radhey Shyam Sharma being a Member of the Nagar Palika Parishad has brought it to the notice of the competent authority, then the mere filling of the Form and being signed by him, would not invalidate the notice inasmuch as after the submission of the Form, the Tehsildar has issued orders for issuance of notice under Form 49-C of the Rules. Thus, on facts as well as in view of the provisions aforesaid, the issuance of the notice cannot be said to be invalid. 8. Learned counsel for the petitioner then contends that Mr. Radhey Shyam Sharma himself has preferred an Affidavit dated 14.10.2005 withdrawing his complaint. This Affidavit can be looked into by the authority while proceeding to decide the objections of the petitioner in response to the notice and, therefore, in the opinion of the Court, a subsequent withdrawal from the complaint would not invalidate the notice that had been issued earlier. Radhey Shyam Sharma himself has preferred an Affidavit dated 14.10.2005 withdrawing his complaint. This Affidavit can be looked into by the authority while proceeding to decide the objections of the petitioner in response to the notice and, therefore, in the opinion of the Court, a subsequent withdrawal from the complaint would not invalidate the notice that had been issued earlier. Accordingly, none of the contentions raised warrant any consideration by this Court in the exercise of jurisdiction under Article 226 of the Constitution of India. 9. The passing of this order does not amount to accepting the charge against the petitioner and it shall be open to the petitioner to place all his objections on merits which shall be decided in accordance with law independently as one of the allegations of the petitioner is that the notices have been issued mala fidely on non-existent facts. 10. The writ petition is dismissed with the said observations. ——————