Shera vs State of U.P.

Ran Vijai Singh, J.—Heard Sri K.P. Singh Kaushal, learned Counsel for the petitioner, learned Standing Counsel for the State respondents and Sri Arun Kumar Srivastava, learned Counsel for the gaon sabha. This writ petition has been filed for issuing a writ of certiorari quashing the order dated 7.8.2006 passed by Sub-Divisional Officer, Tehsil Chandpur, District Bijnore.

It is contended by the learned Counsel for the petitioner that the aforesaid order has been passed without affording an opportunity of hearing before passing the impugned order.

Learned standing Counsel as well as Counsel for the gaon sabha state that the petitioner is the asami lease holder, therefore, no infirmity can be attached to +he impugned order and further, the petitioner has got an alternative remedy of revision, therefore, the writ petition deserves to be dismissed on the ground of alternative remedy.

The Apex Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, has held that in case the order is without jurisdiction or the same has been passed in breach of principles of natural justice, the writ petition should not be thrown on the ground of alternative remedy, therefore, the writ petition is entertained.

Considering the facts and circumstances of this case and keeping in mind the law laid down by the Apex Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, Union of India and Another Vs. Tulsiram Patel and Others, I.J. Rao, Asstt. Collector of Customs and Another Vs. Bibhuti Bhushan Bagh and Another, Canara Bank Vs. V.K. Awasthy, Muzeeb Vs. Dy. Director of Consolidation, Azamgarh and others, and Chaturgun and Others Vs. State of U.P. and Others, the petitioner is provided post decisional hearing.

In this regard, the petitioner may file an application, seeking recall of the order dated 7.8.2006 accompanied with his objection to the impugned order, within a period of three weeks from today, along with a certified copy of the order of this Court. In case such an application is filed before the respondent No. 3, the same shall be considered and decided on its own merit in accordance with law expeditiously without granting any unnecessary adjournment to the learned Counsel for the parties, after hearing all concerned by passing a reasoned and speaking order, if possible within a period of six months from the date of filing of such an application.

It is provided that in case the petitioner is in possession over the land in dispute, he will not be dispossessed till the disposal of the recall application. It is further provided that in the meantime, no third party right shall be created.

It may be clarified that I have not addressed myself on the merit of the case and the respondent No. 3 is free to pass an independent order in accordance with law on its own merit. With the aforesaid observation/direction, this writ petition is disposed of.