Court No. - 34
Case :- SPECIAL APPEAL No. - 596 of 2019 Appellant :- Sovind Chauhan Respondent :- Lalsu And 4 Others Counsel for Appellant :- Chandra Bhan Gupta,Moti Lal Chauhan Counsel for Respondent :- C.S.C.,Ramesh Chandra Upadhyay,Shivasare
Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.
1. Sri Chandra Bhan Gupta, learned counsel for appellant; and, Sri Shivasare, learned counsel for petitioner-respondent-1 and learned Standing Counsel for respondents- 2 to 4. Sri R.C. Upadhyay, Advocate has accepted notice on behalf of respondent-5 but not present today though the case has been called in revise.
2. It is contended that writ petition has been allowed at the admission stage itself without serving notice upon appellant and, therefore, judgment in question passed by learned Single Judge is in utter violation of principles of natural justice.
3. Entire order-sheet of the writ petition has been placed on record as Annexure-2 to the affidavit filed in support of stay application accompanying memo of appeal. It appears that Writ Petition No. 8768 of 2019 came up before learned Single Judge on 12.03.2019, when notice was issued to respondent-5 and respondents- 1 to 4 were permitted to file counter affidavit before Writ Court within three weeks and matter was fixed for 15.04.2019. Office submitted report dated 01.04.2019 stating that notice has been issued to respondent-5 i.e. appellant before this Court by registered post A.D. fixing 15.04.2019. Thereafter, no office report regarding status of service is on record. On 15.04.2019, after hearing learned counsel for petitioner- respondent-1 and learned Standing Counsel for respondents 1 to 3 i.e. State of U.P and its authorities, writ petition has been allowed and order dated 04.04.2018 passed by Sub-Divisional Officer, Tehsil- Lalganj, District Azamgarh awarding fisheries right with regard to pond no. 312, area 1.706 hectare situated in village Bhadsari Pargana Bela Daulatabad, Tehsil Lalganj, District Azamgarh settled in favour of respondent-5 has been set aside and authorities have been directed to re-auction aforesaid pond. Concerned Officer has also been imposed a cost of Rs. 25,000/-. Aggrieved with this order, petitioner-appellant has come up to this Court.
4. Judgment of learned Single Judge also shows that it did not enquired whether notice has been sent/served on respondent-1 or not. It is also evident from judgment in question that none was heard on behalf of respondent-5, Sovind Chauhan against whom adverse order has been passed.
5. Learned counsel for petitioner-respondent-1 could not dispute these facts. In these circumstances, we have no option but to hold that judgment of learned Single Judge is in utter violation of principles of natural justice and cannot be sustained.
6. In view above, the appeal is allowed. Impugned judgment dated 15.04.2019 passed by learned Single Judge is hereby set aside and Writ Petition No. 8768 of 2019 is restored.
7. Learned counsel appearing for appellant stated that he will file counter affidavit within two weeks in the aforesaid writ petition. Petitioner-respondent-1 shall file rejoinder affidavit within a week thereafter.
8. We request learned Single Judge to decide the writ petition expeditiously.
9. Subject to aforesaid observation, appeal stands allowed.
Order Date :- 31.7.2019 Siddhant Sahu