Court No. - 19

Case :- WRIT - C No. - 23442 of 2022

Petitioner :- Hriday Nath

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Ashutosh Kumar Pandey

Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi

Hon'ble Prakash Padia,J.

Heard learned counsel for the petitioner, Sri K.R. Singh, learned Chief Standing

Counsel assisted by Sri Vijay Shankar, learned Standing Counsel for respondent

Nos.1 to 4 and Sri Bhupendra Kumar Tripathi, learned counsel for respondent

No.5.

The petitioner has preferred the present writ petition with the prayer to quash the

order dated 30.04.2022 passed by respondent No.4/Sub Divisional Officer

(Judicial) Pt. Deen Dayal Upadhyay Nagar, District Chandauli.

Sri K.R. Singh, learned Chief Standing Counsel raised a preliminary objection

that against the aforesaid order, the petitioner has an alternative remedy for

filing appeal as provided under Sub Section (4) of Section 38 of the U.P. Land

Revenue Code, 2006.

In response to the same, learned counsel for the petitioner placed upon a

judgement of Hon'ble Supreme Court passed in the case of Dr. Smt. Kunesh

Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and

others reported in 1987 AIR 2186.

On the basis of the aforesaid judgement, it is argued by learned counsel for the

petitioner that alternative remedy is no absolute bar to the maintainability of the

writ petition when an authority has acted wholly without jurisdiction, the High

Court should not refuse to exercise its jurisdiction under Article 226 of the

Constitution of India on the ground of existence of alternative remedy.

Facts in brief as contained in the writ petition are that the petitoner is a resident

of Village Sarane, Pargana Dhoos, Tahsil Pt. Deen Dayal Upadhyay Nagar

(Mugalsarai), District-Chandauli (U.P.). It is stated in paragraph 5 of the writ

petition is that the Araji No. 608 Area 1.299 hectare and Araji No. 494A: Area

0.607 hectare were recorded as private pond in revenue record of Village Sarane,

Pargana Dhoos, Tahsil Pt. Deen Dayal Upadhyay Nagar (Mugalsarai), District-

Chandauli (U.P.), which belong to the petitioner and other co-sharer. A report

was submitted by the revenue Inspector regarding Arazi No.608 and 494A to

cancel the name of the petitioner and other co-sharer from the revenue records

on 01.04.2022. On the basis of the aforesaid report, a Case No.3227 of 2022

(Hriday Nath and others Vs. State of U.P.) was registered in the Court of

respondent No.3/Sub Divisional Magistrate Pt. Deen Dayal Upadhyay Nagar,

District Chandauli under Sub Section (1) of Section 38 of U.P. Land Revenue

Code, 2006.In the aforesaid case, the petitioner was shown as complainant while

no application in the shape of complaint has been ever made by the petitioner. It

is stated in paragraph 8 of the writ petition that the petitoner and other co-sharer

was never served any notice to appear. The grievance of the petitioner is that in

the aforesaid case only three dates were fixed and thereafter a final decision has

been taken in the matter on 30.04.2022 by which direction was given to cancel

the names of the petitioner and other co-sharer from the arazi in questions.

It is argued by learned counsel for the petitioner that the order dated 30.04.2022

has been passed without providing any notice or opportunity of hearing to the

petitioner. It is further argued that Arazi Nos.608 and 494A were private ponds

and belongs from the petitioner and other co-sharer and they maintained the

aforesaid pond till date. It is further argued that the order impugned has been

passed in gross violation of the fundamental rights guaranteed under Article 14

and 21 of the Constitution of India, therefore, the order impugned is liable to be

set aside.

On the other hand, it is argued by learned counsel for the respondents that since

alternative remedy of appeal is available to the petitioner, therefore, the

petitioner should avail the aforesaid remedy and file a