Ram Neti vs Collector Sultanpur & Ors.
2021 Latest Caselaw 6832 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 22
 

 
Case :- MISC. SINGLE No. - 6779 of 2021
 

 
Petitioner :- Ram Neti
 
Respondent :- Collector Sultanpur & Ors.
 
Counsel for Petitioner :- Shyam Mohan Pradhan
 
Counsel for Respondent :- C.S.C.,Mahesh Chandra Shukla,Mohan Singh
 

 
Hon'ble Manish Kumar,J.

Heard learned counsel for the petitioner, learned State Counsel for the respondent nos. 1 & 2 and Sri Praveen Singh, Advocate, holding brief of Sri Mohan Singh, learned counsel for the respondent no. 3.

The present writ petition has been preferred for quashing of the appellate order dated 06-02-2021 passed by the Collector Sultanpur in appeal/ case No. 01535/2020, Ram Neti Versus Gram Panchayat as well as the order dated 19-11-2020 passed by the Tehsildar(Judicial)/Assistant Collector, First Class, Tehsil-Kadipur, District-Sultanpur in Case No. 03711/2019, Gaon Sabha Versus Ram Neti.

In the present case, the petitioner is alleged to be encroacher of Gata No. 1354 measuring 0.0570 heactares in Gram-Biraipur Bhatpurwa, Pargana-Aldejau, Tahsil-Kadipur, district-Sultanpur.

Learned counsel for the petitioner has submitted that there are five similar matters which were decided by the Tehsildar on 19-11-2020, against which five appeals were preferred including the appeal preferred by the present petitioner and all the appeals were decided by the common Judgment dated 06-02-2021 which is impugned in the present writ petition.

Learned counsel for the petitioner has further submitted that one of the similarly situated person Sri Radhey Shyam against the orders dated 06-02-2021 and 19-11-2020 has approached this court by filing Writ Petition No. 6776(M/S) of 2021,Radhey Shyam Versus Collector, Sultanpur & Ors. and this court after hearing learned counsel for the parties has allowed the writ petition vide its Judgment and order dated 15-03-2021.

It is further submitted that the case of the petitioner is almost identical and squarely covered by the Judgment and order dated 15-03-2021 passed in Writ Petition No. 6776(M/S) of 2021.

This court vide its order dated 24-06-2021 has directed the learned counsel for the petitioner to serve the copy of the application no. 51682 of 2021 by which the Judgment and order dated 15-03-2021 has been filed before this court on the learned Chief Standing Counsel.

Learned counsel for the respondents could not dispute the fact that the appellate order dated 06-02-2019 has been passed by the Commissioner without providing any opportunity of hearing to the petitioner and the case of the petitioner is squarely covered by the Judgment and order dated 15-03-202. For convenience, the Judgment and order dated 15-03-2021 is quoted below :-

"Heard the learned counsel for the petitioner. Notice on behalf of the respondents no.1 and 2 has been accepted by the office of the Chief Standing Counsel.

Shri Mohan Singh learned counsel for the Gaon Sabha has accepted notice on behalf of the respondent no.3.

Under challenge is the order dated 19.11.2020 passed by the Tahsildar (Judicial) in the proceedings under Section 67 of the U.P. Revenue Code whereby the petitioner has been held to be in encroachment of Gata No.1357 measuring 0.0150 hectares and Gata No.1357 measuring 0.0100 hectares in Gram Biraipur Bhatpurwa, Pargana Aldemau, Tahsil Kadipur, District Sultanpur also a sum of Rs.1780 as penalty has been imposed against the petitioner. The appeal preferred by the petitioner has also been dismissed by means of order dated 06.02.2021.

The submission of the learned counsel for the petitioner is that he has not been granted adequate opportunity of hearing to contest the proceedings; inasmuch as the proceedings were initiated on the basis of the notice dated 07.11.2019 which was not served on the petitioner. Even the day when the petitioner filed its defence on the same day itself, the Tahsildar (Judicial) decided the matter without affording any opportunity of hearing to the petitioner to lead evidence in support of his defence. It is also submitted that apparently the inspection report which was called for dated 17.11.2020 just two days prior to the date of the decision was also behind the back of the petitioner and in the said report it indicated that the house of the petitioner is built for more than 10 years ago. It has also been submitted that the issue was escalated by the petitioner by filing the appeal and the appellate court while noticing the fact that the petitioner was not afforded an opportunity of hearing but held that since the proceedings were in pursuance of an order passed by the High Court wherein contempt proceedings had been initiated, accordingly the opportunity was denied.

Shri Mohan Singh learned counsel appearing for the respondent no.3 while defending the two orders has submitted that the defence of the petitioner has been taken note of by the appellate court and therefore it is not correct to suggest that the petitioner has not been afforded a proper opportunity of hearing. However, Shri Mohan Singh could not dispute the fact that in so far as the initiation of proceedings is concerned, the notice was not served on the petitioner and even the inspection report which was taken note of dated 17.11.2020 was also not provided to the petitioner nor the inspection was held in his presence.

Shri Mohan Singh also could not dispute the fact that the reasoning given by the appellate court that though the petitioner was entitled to an opportunity of hearing but as the proceedings were initiated in furtherance of an order passed by the High Court in a Public Interest Litigation and in furtherance thereof and contempt proceedings had also been initiated, therefore, under the aforesaid circumstances, the case of the petitioner has been rejected.

The Court has considered the rival submissions and also perused the material on record.

Apparently, in so far as the issue regarding adequate opportunity of hearing is concerned, this Court is satisfied that the same was not provided to the petitioner. The reasoning given by the lower appellate court in rejecting the claim of the petitioner does not appear to be cogent enough to deprive a person of his rights without being afforded an opportunity of hearing. The inspection report refers to the fact that the petitioner has raised Pakka construction which is about 10 years old. The fact whether the said construction is more than 10 years old and as alleged by the petitioner that it is his ancestral property and has the protection of law, is a matter which is to be considered by the court concerned. The defence which has been raised has not been properly appreciated nor considered rather under the fear of contempt proceedings the appeal has also been decided in a cursory manner.

In the aforesaid circumstances, with the consent of parties, this Court is of the view that no gainful purpose would be served in keeping the aforesaid petition pending, hence the impugned orders dated 19.11.2020 and 06.02.2021 passed by the respondents no.2 and 1 respectively are set aside and the matter is remitted to the respondent no.2 who shall after affording proper opportunity of hearing to the parties concerned shall pass fresh order preferably within a period of three months from the date, a certified copy of this order is placed before the respondent no.2.

It is made clear that the Court has set aside the two orders only on the question of grant of opportunity of hearing and nothing in this order may be taken as an expression of opinion on merits of the case.

With the aforesaid, the petition shall stand allowed and the impugned orders shall stand quashed. In the facts and circumstances, there shall be no order as to costs."

In view of the aforesaid facts and circumstances and in the light of Judgment dated 15-03-2021, the impugned order dated 06-02-2021 passed by the Collector Sultanpur in appeal/ case No.01535/2020, Ram Neti Versus Gram Panchayat as well as the order dated 19-11-2020 passed by the Tehsildar(Judicial)/Assistant Collector, First Class, Tehsil-Kadipur, District-Sultanpur in case No. 03711/2019, Gaon Sabha Versus Ram Neti, are hereby quashed only on the question of grant of opportunity of hearing and the matter is remitted to the respondent no. 2 who shall after providing opportunity of hearing to the parties concerned shall pass fresh order in accordance with law within a period of three months from the date a copy of this order downloaded from the official website of the high court is served.

The writ petition is allowed accordingly.

Order Date :- 30.6.2021

AKS