Court No. - 21
Case :- WRIT - C No. - 56391 of 2008 Petitioner :- Mohd. Hanif Respondent :- State Of U.P. And Others Counsel for Petitioner :- K.D. Awasthi Counsel for Respondent :- C.S.C.,V.K.Singh
Hon'ble Pradeep Kumar Singh Baghel,J. Hon'ble Pankaj Bhatia,J.
The petitioner is aggrieved by the order dated 4.10.2008 passed by the Executive Officer, Nagar Panchayat, Bidhuna district Auraiya(respondent no. 5) whereby respondent no. 5 has cancelled the allotment of the petitioner's shop.
The petitioner claims that he is a poor unemployed person, on his application dated 3.1.2008, respondent no. 1 allotted vacant land of plot no. 798 having area of 0.210 hectare on rent for the purposes to start a small shop so he could earn his livelihood. In this regard, Nagar Panchayat, Bidhuna, respondent no. 3 passed resolution on 25.1.2008 to allot the said land in favour of the petitioner. A copy of the resolution dated 25.1.2008 is on the record, which is Annexure No. 1 to the writ petition. It is submitted that the petitioner was regularly depositing the rent. However, without giving any notice or opportunity, the allotment order of the petitioner has been cancelled.
In paragraph 17 of the writ petition, the petitioner has averred that the said order has been passed without giving opportunity to the petitioner.
Paragraph 15 of the writ petition has been replied in paragraph 16 of the counter affidavit wherein no specific denial has been made. Paragraph 15 of the writ petition and its reply in paragraph 16 of the counter affidavit is reproduced as under :
" 15. That thereafter on 04.10.2008 Mr. Sumendra Porwal is a member of Provincial Executive Committee, U.P. Industry and Trade Organization, Lucknow ( U.P. Udyog Vyapar Sangathan, Lucknow) Respondent no. 6 against made an application to the respondent no. 3 who directed the Executive Officer, respondent no. 5 to proceed in accordance with the order dated 2.10.2008 and for the purposes of maintaining law and order consult with Station House Officer. Thereafter the respondent no. 5 requested to the in charge inspector Kotwali Bidhuna for maintaining law and order so that the proceedings in accordance with order dated 02.10.2008 could be done."
"16. That, the contents of paragraph Nos. 16,17,18 of the writ petition are wrong and hence denied. It is submitted that the order of allotment is without jurisdiction and, therefore, it has been rightly set aside by the impugned order. The petitioner has tried to occupy the public utility land and, therefore, the impugned order has been rightly passed for the welfare of the public at large"
From the perusal of the aforesaid pleading, it is manifestly clear that no specific denial has been made. Under order VIII Rule 5 and 6 C.PC. it is provided that if fact is not specifically denied, it would amount admission.
It is true that the provisions of the Civil Procedure Code are not applicable to the writ proceedings but the principal of the C.P.C. are applicable to writ proceedings also. Reference may be made to the case of Writ A No. 16216 of 2017(Lankeshwar Prasad Yadav Versus State of U.P. and others) decided by this court on 18.4.2017 We have heard the learned counsel for the petitioner and the learned standing counsel.
Learned counsel for the petitioner submits that the petitioner is an unemployed youth, hence he was allotted the land to setup a small shop to earn his livelihood. By the impugned order dated 4.10.2008 the allotment order of the petitioner has been cancelled in violation of the principal of natural justice, hence the order is void. He further submits that the order has caused serious prejudice to the fundamental rights of the petitioner to earn his livelihood, hence it is serious violation of Article 21 of the Constitution of India.
Learned standing counsel has justified the order passed by the respondent. We have considered the rival submissions and perused the record.
It is well settled principal of law that an order which caused some evil consequences to a person and has been passed without giving opportunity of hearing, such order is void.
Reference may be made to the judgments of the Supreme Court in the case of Swadeshi Cotton Mills etc. v. Union of India etc., AIR 1981 SC 818 and S.L. Kapoor v. Jagmohan and others, (1980) 4 SCC 379, Maneka Gandhi vs Union Of India 1978 AIR 597. This principal has been consistently followed in the above referred cases.
Having due regard to the fact that the order has been passed in violation of the principal of natural justice, we hereby quash the impugned order dated 4.10.2008 passed the Executive Officer, Nagar Panchayat, Bidhuna district Auraiya(respondent no. 5) and remit the matter back to respondent no. 5 to pass a fresh order after furnishing opportunity of hearing to the petitioner.
The writ petition is allowed.
Order Date :- 30.1.2019 N.A.