Allahabad High Court
Amit Bhardwaj vs State Of U.P. And 4 Others on 11 June, 2020
Equivalent citations: AIRONLINE 2020 ALL 1635
Bench: Manoj Misra, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 50 Case :- WRIT - C No. - 9345 of 2020 Petitioner :- Amit Bhardwaj Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shri Krishna Mishra,Sharad Chand Rai Counsel for Respondent :- C.S.C. Hon'ble Manoj Misra,J.
Hon'ble Pradeep Kumar Srivastava,J.
Heard Shri Sarad Chand Rai, learned counsel for the petitioner, the learned Standing counsel for the respondent nos. 1, 2 and 3.
Considering the nature of the order that we propose to pass as also the ground on which we propose to pass the order, we do not consider it necessary to issue notice to respondent nos. 4 and 5.
The case of the petitioner is that the Nagar Palika Parishad, Atrauli, Aligarh undertook an exercise for allotment of 39 shops. The allotment exercise was concluded and the applicant was allotted shop nos. 24 and 25. An agreement was thereafter entered into between the petitioner and the Nagar Palika Parishad on 01.12.2010. Since then the petitioner has been in possession of the allotted shop.
The grievance of the petitioner is that without affording opportunity of hearing to the petitioner or to any of the similar allottee, by a general order dated 26.05.2018, which was issued on 31.05.2018, the allotment of the shops was cancelled and, pursuant to such cancellation, on 16.12.2019, notice was issued to the allottees by the Executive Officer, Nagar Palika Parishad, Atrauli, Aligarh to handover vacant possession of the shop held by the allottee or else to face proceedings under U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972.
Assailing the general order of cancellation of allotments as also the consequential notice to handover the possession, this petition has been filed.
The case of the petitioner is that the order dated 26.05.2018 issued on 31.05.2018 affects the rights of the allottees and therefore it cannot be sustained in absence of opportunity to them to show cause against such proposed cancellation. It has been submitted that a similar Writ-C No. 3345 of 2020 filed by Ishrar Ahmad was allowed by this Court vide order dated 31.01.2020 after hearing the other side upon finding that the order impugned was passed without affording opportunity of hearing to the affected parties.
The order dated 31.01.2020 passed in Writ-C No. 3345 of 2020 is extracted below:-
"Heard Sri Sharad Chand Rai, learned counsel for the petitioner, Sri Ram Prakash, Advocate holding brief of Sri Devendra Kumar, learned counsel for the respondent No.4, learned Standing Counsel for the State respondents and perused the record.
By means of the present writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 26th May, 2018/ 31st May, 2018 and consequential order-cum-notice dated 16th December, 2019 passed by the respondent Nos. 3 & 5 respectively.
Assailing the order impugned, it is alleged by the learned counsel for the petitioner that prior to passing of the impugned order dated 26th May, 2018/ 31st May, 2018, the respondent No.3, namely, Sub-Divisional Magistrate, Atrauli, District- Aligarh did not issue any notice and, therefore, the order cancelling the allotment has been passed in a gross violation of principles of natural justice. It has been submitted that consequential order has come to be passed by the Executive Officer of Nagar Palika Parishad, Atrauli, Aligarh on 16th December, 2019 and it is from that order the petitioner has come to know that there was already an order for cancellation.
From the perusal of the order impugned dated 26th May, 2018/ 31st May, 2018 it clearly transpires that no notice prior to passing order of cancellation, was ever issued to the petitioner.
It is settled legal position that if an order results in adverse civil consequences then minimum requirement of compliance of principles of natural justice has to be met and in case if an opportunity is not provided then it is an arbitrary exercise of power and thus in violation of Article 14 of the Constitution.
Under the circumstances, the order dated 26th May, 2018/ 31st May, 2018 is clearly unsustainable in law and deserves to be quashed.
The writ petition succeeds and is, accordingly, allowed. The order dated 26th May, 2018/ 31st May, 2018 is hereby quashed.
The communication letter dated 16th December, 2019 should be taken as a notice prior to any coercive measures against the petitioner as was contemplated under the order dated 26th May, 2018/ 31st May, 2018 and, therefore, we direct the petitioner to give his reply within a period of two weeks from today to the notice dated 16th December, 2019 and in the event any such reply is submitted, an appropriate order shall be passed by the respondent authority strictly in accordance with law."
The learned counsel for the petitioner therefore submits that this petition be also disposed of /allowed in terms of the order passed in Writ-C No. 3345 of 2020, extracted above.
The learned Standing counsel who represent the respondent nos. 1, 2 and 3 has submitted that as this Court has allowed Writ-C No. 3345 of 2020 filed by Ishrar Ahmad on the ground that the order was passed without affording opportunity of hearing, this petition may be disposed of by leaving it open to the respondent to pass a fresh order after giving opportunity of hearing to the affected parties.
Having considered the rival submissions, keeping in mind that in Writ-C No. 3345 of 2020 the order dated 26th May, 2018 /31st May, 2018 was challenged and the Court had come to the conclusion that the same was passed without opportunity of hearing to the parties affected, we deem it appropriate to allow the petition on the same terms as Writ-C No. 3345 of 2020 was allowed vide order dated 31.01.2020.
The petition is accordingly allowed on the same terms as contained in order dated 31.01.2020 passed in Writ-C No. 3345 of 2020, extracted above, subject to the modification that the petitioner shall have to file reply to the notice dated 16th December, 2019 within two weeks from today and in the event any such reply is submitted an appropriate order shall be passed by the respondent concerned strictly in accordance with law.
The learned counsel for the petitioner undertakes that he would serve copy of the order passed in this petition on the respondent nos. 4 and 5 within two weeks from today.
Order Date :- 11.6.2020 Bhanu