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2014 DIGILAW 915 (ALL)

Ahmad Ali v. State of U. P.

2014-03-24

RAN VIJAI SINGH

body2014
JUDGMENT Ran Vijai Singh,J. Heard Sri Shashank Kumar, learned counsel for the petitioners, learned standing counsel for the State-respondents and Sri Abhishek Srivastava holding brief of Sri A.K.Srivastava, learned counsel for the Gaon Sabha. 2. Through this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the order dated 31.10.2008 passed by the respondent no.2 by which the petitioners' names have been expunged from the revenue record while exercising the power under sub-rule (2) of Rule 176 of the U.P. Zamindari Abilition and Land Reforms Rules, 1952 with the direction to record the name of Gaon Sabha over the land in dispute. While passing the impugned order it has been recorded by the Assistant Collector that the parties have been heard. 3. Learned counsel for the petitioner submits that the order impugned has been passed without any notice or affording an opportunity of hearing as the petitioners have never engaged any counsel and the order impugned has been passed ex parte. 4. Vide order dated 20.2.2014 learned standing standing counsel was directed to seek instruction and to produce the record. Learned standing counsel has sought instruction and has obtained the record. On the basis of the record he submits that so far as petitioner nos. 1 and 2 are concerned no adverse order has been passed against them. 5. On this learned counsel for the petitioner contends that the writ petition may be dismissed as not pressed at this stage on behalf of petitioner nos. 1 and 2 with liberty to file a fresh writ petition. The writ petition is dismissed with the liberty aforesaid. 6. So far as petitioner no. 3 is concerned, learned standing counsel submits that notice was issued to Rahmad son of Prasadi but father's name of petitioner no.3, Rahmad is Rustam not Prasadi, therefore it is apparent that notice was not served to the genuine person. 7. So far as petitioner no.4 is concerned learned standing counsel submits that notice has been served upon him which has been denied by the petitioners in paragraph 8 of the writ partition. So far as petitioner no.5 is concerned, learned standing counsel admits that no notice was served upon petitioner no.5. 8. Learned standing counsel also submits that the order impugned is revisable and the writ petition is not maintainable. 9. So far as petitioner no.5 is concerned, learned standing counsel admits that no notice was served upon petitioner no.5. 8. Learned standing counsel also submits that the order impugned is revisable and the writ petition is not maintainable. 9. The Apex Court in Whirlpool Corporation vs. Registrar of Trade Marks ( 1998 (8) SCC 1 ) has held that in case an order under challenge is without jurisdiction or has been passed in breach of principles of natural justice the writ petition should not be thrown on the ground of alternative remedy. Here the impugned order has been passed without affording opportunity of hearing, therefore writ petition is being entertained. The learned counsel for the petitioner may be right in his submissions that the order impugned suffers from breach of principle of natural justice but considering the fact that the order was passed way back in the year 2008, the petitioner is provided post-decisional hearing in view of the decisions of the Apex Court as well as of this Court. Reference may be given in Maneka Gandhi Vs. Union of India AIR 1978 SC 597 , Union of India Vs. Tulsi Ram Patel 1985 (3) SCC 398 , I.J. Rao Assistant Collector of Customs Vs. Bibhuti Bagh 1989 (3) SCC 202 , Canara Bank Vs. V.K.Awasthi 2005 (6) SCC 321 , Muzeeb Vs. Deputy Director of Consolidation and others 1996 (87) RD 66 and Chaturgun Vs. State of U.P. 2005 (2) AWC 1256 . For that purpose, the petitioner is at liberty to file an application along with his objection for recall of the order dated 31.10..2008 before respondent no. 2. In case such an application is filed within a period of three weeks from today a reasoned order be passed by the respondent no. 2 in accordance with law after hearing all concerned expeditiously without granting any unnecessary adjournment. In case any adjournment is sought that may be granted only after imposing cost with the direction to deposit the cost by the next date fixed. 10. Till the petitioners' recall application is considered and decided, the petitioners shall not be evicted from the land in dispute in case he is still in the possession over the same. It is further provided that in the meantime no third party right shall be created. 11. 10. Till the petitioners' recall application is considered and decided, the petitioners shall not be evicted from the land in dispute in case he is still in the possession over the same. It is further provided that in the meantime no third party right shall be created. 11. It may be clarified that I have not addressed myself on the merit of the case and the respondent no. 2 is free to pass an independent order in accordance with law on its own merit. 12. With the aforesaid observation / direction, this writ petition is disposed of.