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2011 Supreme(All) 2002
ALLAHABAD HIGH COURT
S.U.Khan, J.
Radha Krishna Pandey -Appellant
Versus
Sub-Divisional Officer, Kanpur Dehat and Another -Respondent
Civil Misc. Writ Petition No. 19458 of 1993
Decided On : 18-07-2011
S.C. Tripathi, for the Petitioner, R.J. Singh, for the Respondents.
The main legal point established is that in certain circumstances, it may not be necessary to issue notice or hear the petitioner in a restoration application if the main application had been dismissed in the absence of both parties.
Headnote:
U.P. Public Premises Eviction of unauthorised occupation Act 1972 - Land Dispute - Section 4/7 - Summary: The court discussed the application of the U.P. Public Premises Eviction of unauthorised occupation Act 1972 in a case involving a land dispute. The court upheld the impugned order on the grounds that it was not necessary to issue notice or hear the petitioner as the main application had been dismissed in the absence of both parties.
Fact of the Case:
The writ petition was filed against an order setting aside an application under Section 4/7 of the U.P. Public Premises Eviction of unauthorised occupation Act 1972, involving a land dispute. The petitioner claimed title over the disputed land, alleging ancestral ownership and residential use.
Finding of the Court:
The court upheld the impugned order, stating that it was not necessary to issue notice or hear the petitioner as the main application had been dismissed in the absence of both parties.
Issues: The issues involved the jurisdiction of the Prescribed authority, the restoration of the order, and the necessity of notice and hearing in the restoration application.
Ratio Decidendi: The court held that it was not necessary to issue notice or hear the petitioner in the restoration application, as the main application had been dismissed in the absence of both parties.
Final Decision: The writ petition was dismissed, and both parties were directed to appear before the Prescribed authority for expeditious resolution.
1. Heard Sri S.C. Tripathi, learned Counsel for the petitioner and learned standing Counsel for the respondents.
2. This writ petition is directed against order passed by the authority/court below setting aside an order through which application of respondent No.2 Construction Division, Kanpur filed against the petitioner under Section 4/7 of U.P. Public Premises Eviction of unauthorised occupation Act 1972, hereinafter, referred to as 'the Act' was dismissed in default. Initially application under Section 4/7 of the Act was filed against the petitioner on 6.11.1979 copy of the application is Annexure 1 to the writ petition. The allegation against the petitioner was that he had encroached upon road side land/Patari abutting G.T. Road admeasuring 357 sq. meter. The illegal occupation was alleged since or about 04.03.1973. Damages were also claimed.
3. Petitioner claims his title over the land in dispute since the time of his ancestors. In para 4 of the writ petition it is mentioned that petitioner has been Pradhan of the village where land in dispute is situate for 20 years. It has been alleged in para 5(9) of the writ petition (added through amendment) that the petitioner has got his residential house over the disputed land.
4. The proceedings which were initiated through Annexure 1 were dismissed in default of the applicant respondent No.2 on 22.5.1986 copy of the said order is Annexure 6 to the writ petition. The said order was passed by Prescribed authority/S.D.O. Bilhaur District Kanpur Dehat on the ground that no one had appeared on behalf of the applicant.
5. It appears that proceedings were reinitiated Petitioner raised objection of jurisdiction by filing application on 26.12.1990 copy of which is Annexure 8 to the writ petitioner which was filed in case No.19/3. However, the case was again dismissed in default on 31.3.1992 copy of the said order is Annexure 9 to the writ petition. Number of case is 1/5/2 of 1991-92.
6. On 31.10.1992 the case was again dismissed in default. Thereafter, restoration application was filed for setting aside the order dated 31.10.1992 which was allowed on 11.11.1992 by Prescribed authority/Additional S.D.O. Kanpur Dehat. Thereafter, petitioner filed an application on 15.04.1993 seeking setting aside of the order dated 11.11.1992 true copy of which is Annexure 11 to the writ petition. The said application was rejected on 30.04.1993 by Prescribed authority/Assistant Collector, Kanpur Dehat on the ground that it had no jurisdiction.
7. Through this writ petition orders dated 11.11.1992 and 30.04.1993 have been challenged.
8. No question of transfer of proceedings is involved in this case. Learned Counsel for the petitioner has argued that under Rule 6 of Rules framed under the Act only District Judge can transfer the proceedings from one Prescribed authority to another prescribed authority. However, no such question is involved in this writ petition.
9. S.D.O. due to his utter ignorance of law has complicated an otherwise simple matter of restoration. Under somewhat similar circumstances in writ petition No. 46121 of 1999, Laxmi Shanker and others v. Collector Varanasi and others, decided on 6.7.2011 (Reported in 2011 All. CJ 1716). I have held as follows:
"Actually the fault is not of the D.MJ Collector, who is Executive Officer. Executive Officers cannot be expected to perform the duties of a Doctor or Engineer as neither they are qualified nor trained in the said discipline. Similarly they can also not be expected to perform judicial duties."
10. This executive officers do not even know the fundamental principle of Procedural law that no order shall be passed without hearing the other side. First the Additional S.D.O. Bilhaur Kanpur Dehat passed the restoration order on 11.11.1992 without mentioning as to whether notice on restoration application had been served on the other side or not or whether the other side was present or not or whether notice was necessary to be sent or not. He co
