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2017 DIGILAW 1918 (ALL)

ZILEDAR SINGH v. STATE OF U. P.

2017-08-21

ARUN TANDON, RITU RAJ AWASTHI

body2017
JUDGMENT By the Court.—Heard Mr. G.K. Singh, Senior Advocate assisted by Mr. Rajnish Kumar Srivastava on behalf of the appellants and Sri P.N. Saxena, Senior Advocate assisted by Mr. Amit Saxena learned counsel for respondents No. 3 and 4 as well as learned Standing Counsel on behalf of respondents No. 1 and 2. 2. Learned counsel for the parties agree that the present appeal may be disposed of at this stage without calling for any further affidavit specifically in view of the order proposed to be passed today by the Court. 3. Besides addressing the Court on the merits of the order of learned Single Judge Sri G.K. Singh, learned Senior Advocate submitted before us that Writ-C No. 18528 of 2017 giving rise to the present appeal was heard as a fresh matter on 28.5.2017 and orders were reserved. It is specifically stated that at no point of time the private respondents who were represented by Sri G.K. Singh were afforded any opportunity to file counter-affidavit. It was presumed that probably the writ Court would either dismiss the writ petition or else if it needs to entertain the writ petition it will grant time to file counter-affidavit with whatever interim order the Court would deem fit and proper. 4. But such procedure has not been adopted. It is his case that the writ petition has been finally allowed vide order dated 28.6.2017 in absence of any opportunity to file counter-affidavit. 5. Counsel for the appellants contends that there are serious issues with regards to the locus of the writ petitioner which aspect of the matter could not be highlighted in absence of the counter-affidavit. 6. Sri P.N. Saxena, Senior Advocate, counsel for the respondents fairly stated that there is nothing in the order to suggest that any opportunity to file counter-affidavit was ever afforded. He does not dispute the other factual statements made on behalf of the writ petitioner, however, he would submit that this appeal be dismissed and the order of the learned Single Judge be maintained. 7. We have heard learned counsel for the parties and examined the records of the present special appeal. 8. We are of the considered opinion that if a writ petition has been heard at the admission stage by a learned Single Judge and orders are reserved, then without the consent of the parties writ petition cannot be finally allowed at that stage. 8. We are of the considered opinion that if a writ petition has been heard at the admission stage by a learned Single Judge and orders are reserved, then without the consent of the parties writ petition cannot be finally allowed at that stage. If the orders are reserved at that stage then the normal course available to writ Court is to either dispose of the writ petition without affecting any rights of the respondents or else to entertain the writ petition, call for a counter-affidavit and to pass such interim orders that the Court may deem fit and proper in the facts of the case. Writ petition cannot be allowed ex parte without opportunity to the respondents to file response to the averments made in the writ petition specifically when there are issues of fact which do need rebuttal fom the contesting respondents. 9. In the totality of the circumstances on record of this case, we are of the opinion that the learned Single Judge was not correct in allowing the writ petition in absence of an opportunity to the respondents file the counter-affidavit and to controvert the allegations made in the writ petition. 10. Accordingly, the order of learned Single Judge dated 28.6.2017, passed in Writ-C No. 18528 of 2017 is hereby set aside. Writ petition is restored to its original number to be heard and decided both on the interim application as well as on the merits of the writ petition in accordance with law at the earliest possible. We direct that the writ petition be listed before the learned Single Judge on 5th September, 2017. The appellants must file their response to the writ petition by that date. Special appeal is allowed.