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IN THE HIGH COURT OF ALLAHABAD
SYED QAMAR HASAN RIZVI, J.
Ram Kumar – Appellant
Versus
State Of U.P. And Others – Respondents
Writ C No. 26782 of 2023
Decided on : 15-09-2023
Notice - Land Possession - U.P. Revenue Code, 2006, Section 136 - The court quashed the impugned notice dated 13.07.2023, issued by the Sub Divisional Officer, as it lacked the basic element of opportunity to the noticee to rebut and defend the allegation imposed against him, and proposed an action to be taken under a non-applicable provision of law. The court held that the notice was practically a pre-mediated order/direction issued by the Sub-Divisional Officer to the petitioner for specific compliance, and the proceedings under section 136 of the U.P. Revenue Code, 2006 were beyond the domain and scope of the section. The court also found that the notice did not satisfy the legal requirement of show cause as provided under section 136 (3) of the Code of 2006. The court allowed the writ petition and quashed the notice, providing the respondent authorities the liberty to initiate proceedings afresh, strictly in accordance with the provisions of law and by providing due opportunity to the petitioner to put forward, explain, and substantiate his own version.
Fact of the Case:
The petitioner was directed to remove his possession from a plot of land within seven days, failing which his illegal possession would be demolished in accordance with the proceeding under section 136 of the U.P. Revenue Code, 2006. The petitioner filed a writ petition challenging the notice, contending that it was illegal and in violation of the principles of natural justice.
Finding of the Court:
The court found that the impugned notice lacked the basic element of opportunity to the noticee to rebut and defend the allegation imposed against him, and proposed an action to be taken under a non-applicable provision of law. The court also found that the notice was practically a pre-mediated order/direction issued by the Sub-Divisional Officer to the petitioner for specific compliance, and the proceedings under section 136 of the U.P. Revenue Code, 2006 were beyond the domain and scope of the section. The court also found that the notice did not satisfy the legal requirement of show cause as provided under section 136 (3) of the Code of 2006.
Issues: The main issue before the court was the legality and correctness of the impugned notice issued by the Sub Divisional Officer, and the maintainability of the writ petition challenging the notice.
Ratio Decidendi: The court held that the impugned notice lacked the basic element of opportunity to the noticee to rebut and defend the allegation imposed against him, and proposed an action to be taken under a non-applicable provision of law. The court also found that the notice was practically a pre-mediated order/direction issued by the Sub-Divisional Officer to the petitioner for specific compliance, and the proceedings under section 136 of the U.P. Revenue Code, 2006 were beyond the domain and scope of the section. The court also found that the notice did not satisfy the legal requirement of show cause as provided under section 136 (3) of the Code of 2006.
Final Decision: The court allowed the writ petition and quashed the impugned notice, providing the respondent authorities the liberty to initiate proceedings afresh, strictly in accordance with the provisions of law and by providing due opportunity to the petitioner to put forward, explain, and substantiate his own version.
JUDGMENT :
1. Heard Sri Mohammad Mustafa, learned counsel for the petitioner; Shri Awadhesh Kumar Patel, learned Standing Counsel for State-respondents No.1, 2 & 3; Shri Pankaj Kumar Gupta, learned counsel appearing for the Gaon Sabha-respondent No. 4 and perused the material available on record.
2. With the consent of the learned counsel for the parties, the present Writ Petition is decided finally at the stage of first hearing in view of the second proviso to Rule 2 of Chapter XXII of the Allahabad High Court Rules (Rules of the Court, 1952).
3. By means of the present writ petition, the petitioner has prayed for the following relief:
III. Award the cost of the Writ Petition to the Petitioner.
4. Brief facts of the case which are relevant to be stated are that by means of the impugned notice dated 13.07.2023 issued by the Sub Divisional Officer, Shohrartgarh, District: Siddharth Nagar/respondent No. 3, the petitioner has been directed to remove his possession on his own, from the part (ad-measuring area 0.006 Hectare) of the plot bearing Gata No. 316/0.3670 Hectare; within a period of seven days, otherwise the same shall be demolished in exercise of the action as provided under Section 136 of the U.P. Revenue Code, 2006 and he will be saddled with compensation, for which he himself shall be responsible.
5. Being aggrieved by the aforesaid notice dated 13.07.2023, petitioner has filed the instant writ petition praying for a Writ in the nature of Certiorari quashing the same.
6. Assailing the impugned notice, the contentions of learned counsel for the petitioner are as under:
6.1 That vide order/notice dated 13.07.2023 the respondent no.3 has issued a direction to the petitioner to remove his possession within a period of seven days without any opportunity of defending his case. Therefore, the impugned action of the respondent no. 3 against the petitioner is absolutely illegal being in utter violation of the principles of natural justice.
6.2. He further submits that the contents of the impugned Notice dated 13.07.2023, as contained in Annexure No. 1 to the writ petition, itself reflects the very nature of the same being a clear direction/order to the petitioner for the removal of his possession within seven days and cannot be regarded as notice, what to say a show cause. It is nothing, but a final order/direction though termed as notice and as such the same is liable to be quashed being nonest and illegal.
6.3. Last plunk of his submission is that as per section 136 (3) of the U.P. Revenue Code, 2006 despite there being a specific bar provided therein to the extent that no person shall be evicted from the land over which a Gram Panchayat or local authority is entitled to take possession, unless adequate opportunity to show cause has been afforded to them, but in the present case, no such opportunity has ever been afforded to the petitioner before passing the said order/notice.
7. Sri Awadhesh Kumar Patel, learned Standing Counsel appearing on behalf of the State-respondents has raised a preliminary objection regarding the maintainability of the present writ petition by contending that it is a well settled legal position that Writ Petition under Article 226 of the Constitution of India, is not maintainable against a notice and as such the present Writ Petition being against the notice is liable to be dismissed. In support of his contention, he has placed before this Court the judgment passed in Writ-C No.-5606 of 2020 (Ghanshyam and 11 others versus Union of India and others) (Neutral Citation No.-2020: AHC:31654-DB), wherein the Hon’ble Division Be
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