Allahabad High Court
Shri Durgadevi Rural And Educational ... vs State Of U.P. & Others on 7 July, 2010
Author: Prakash Krishna
Bench: Prakash Krishna
Court No. - 6 Case :- WRIT - C No. - 38874 of 2010 Petitioner :- Shri Durgadevi Rural And Educational Development Society Respondent :- State Of U.P. & Others Petitioner Counsel :- Nikhil Agrawal Respondent Counsel :- C.S.C.,D.D. Chauhan Hon'ble Prakash Krishna,J.
Heard Sri Nikhil Agrawal, learned counsel for the petitioner, Sri. D.D. Chauhan, learned counsel for respondent No. 4 and Sri. Rajesh Kumar, learned counsel for respondents No. 1,2 and 3 and perused the record of the case.
As jointly agreed by by them, the writ petition is being disposed of finally at the admission stage without calling a counter affidavit.
By means of the present writ petition, the petitioner has challenged the order dated 14th January, 2010 passed by the Sub-Divisional Magistrate, Manjhanpur, District Kaushambi in Case No. 261 of 2009, under Section 33/39 of the Land Revenue Act, whereby the authority concerned has ordered that the name of the petitioner be expunged in the revenue record and plots be recorded in the name of Gaon Sabha.
At the very out set, learned counsel for the respondent no. 4 submits that the said order is appealable, therefore, the court should not be entertain the present writ petition under Article 226 of the Constitution of India. In reply, learned counsel for the petitioner submits that the impugned order admittedly has been passed in violation of principle of natural justice. Inasmuch as no opportunity of hearing was given to the petitioner before passing of the said order. He submits that since the order has been passed in violation of principle of natural justice, the petitioner should not be relegated to the statutory remedy.
Considered the submissions of learned counsel for the parties and perused the record.
The order passed in violation of principle of natural justice or without jurisdiction, are the two exceptions, wherein a writ petition can be entertained, notwithstanding the fact that the same is appealable. Therefore, the plea of the respondents, regarding alternative remedy, on the facts of the present case is not tenable. Reference can be made to M.P. State Agro Industries Vs. Jahan Khan, AIR 2007, S.C. 3153.
In the present case, in the impugned order itself, it is mentioned that the same is being passed without issuing any notice to the petitioner. The tenor of the order supports the contention of learned counsel for the petitioner that it has been passed without giving any notice to the petitioner. The authority proceeded to pass the impugned order on the supposition that the entries in favour of the petitioner in the revenue record were recorded wrongly without following the procedure as prescribed under the Consolidation Of Holding Act.
The fact remains that the plots in question were recorded in favour of the petitioner. The entries are long standing entries. Whether the name of the petitioner was correctly recorded or not, should be adjudicated upon after giving an opportunity of hearing to the petitioner and not otherwise.
Looking to the fact that the impugned order has been passed in violation of the principle of natural justice, it can be allowed to stand. The impugned order is, hereby, set aside. The matter is restored to the Sub-Divisional Magistrate, Manjhanpur, District Kaushambi to decide it afresh after giving an opportunity of hearing to the petitioner. The petitioner may file the objections along with certified copy of this order within a period of three weeks before the authority concerned, who will fix a date for hearing of the matter thereafter.
In the result, the writ petition succeeds and is allowed. The impugned order dated 14th January, 2010 is set aside. No order as to cost.
Order Date :- 7.7.2010 MK/ (Prakash Krishna, J)