Neutral Citation No. - 2023:AHC:178683

A.F.R.

Court No. - 49

Case :- WRIT - C No. - 26782 of 2023

Petitioner :- Ram Kumar

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Mohammad Mustafa

Counsel for Respondent :- C.S.C.,Pankaj Kumar Gupta

Hon'ble Syed Qamar Hasan Rizvi,J.

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:

I.Issue a Writ, Order or direction in the nature of certiorari

quashing the impugned order/notice dated 13.07.2023,

passed by the Respondent No. 3 – Sub-Divisional

Magistrate, Shohratgarh, District Siddharth Nagar

(Annexure No. 1) to this Writ Petition.

II.Issue any other writ, order or direction which this Hon’ble

Court may deem fit and proper under the facts and

circumstances of the case.

III.Award the cost of the Writ Petition to the Petitioner.

Neutral Citation No. - 2023:AHC:178683

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

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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 judgement 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 Bench of this Court by

relying upon the judgement passed by the Hon’ble Supreme Court of

India in the case of The Special Director and another versus Mohd. Gulam

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Ghouse and another reported in (2004) 3 SCC 440; has been pleased to

dismiss the said Writ Petition, declining to interfere with the show-cause

notice.

7.1. He further submits that by means of the impugned notice dated

13.07.2023, the petitioner had been provided seven days’ time to remove

his unlawful possession from the land belonging to the Gaon Sabha and as

such he had ample opportunity to defend his case within the stipulated

time. He further submits that there is nothing on record to show that the

petitioner has been evicted or his possession has been taken over in

pursuance of the impugned notice and as such it is still open for the

petitioner to approach the respondent No. 3 for the redressal of his

grievances.

8. Sri Pankaj Kumar Gupta, learned counsel appearing on behalf of Gram

Sabha-respondent No. 4 has also strongly contended that the petitioner is

a trespasser of the land belonging to the Gram Sabha and as such, the

impugned notice for ejectment of the petitioner from the land in question

has been rightly issued to secure the property belonging to the Gram

Sabha. He further submitted that there is no infirmity or illegality in the

impugned notice dated 13.07.2023. Referring to section 136 of the U.P.

Revenue Code 2006, he submitted that the Sub-Divisional Officer-

respondent No. 3 is fully competent to initiate proceeding for ejectment of

any person found trespassing the property belonging to the Gram Sabha.

The impugned notice issued by the respondent No. 3 to the petitioner who

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is a trespasser of the land belonging to Gram Sabha, is perfectly legal and

justified.

9. Having heard the learned counsel for the parties, the preliminary issue

which has arisen for consideration before this Court is regarding the

maintainability of the present Writ Petition.

10. For ready reference, the impugned notice dated 13.07.2023 as

contained in Annexure No.1 to the Writ Petition is reproduced below:

11. From a bare perusal of the aforementioned impugned notice dated

13.07.2023, it is clearly visible that the Sub Divisional Officer

(respondent No. 3) had issued direction to the petitioner to remove his

possession on his own, from the plot in question within a period of seven

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days by allegating him for misappropriation of land belonging to the

Gram Sabha, failing which his illegal possession will be demolished in

accordance with the proceeding under section 136 of the U.P. Revenue

Code, 2006 (hereinafter referred to as the Code of 2006) and he will be

saddled with compensation, for which petitioner himself will be

responsible.

12. Before entering into the rival submissions made by the learned

counsels for the parties, it would be appropriate to encapsulate the term

‘notice’. Notice has been defined by the Black’s Law Dictionary, 6

th

edition in the following manner,

“Notice in its legal sense is information concerning a fact,

actually communicated to a person by an authorised person, or

actually derived by him from a proper source, and is regarded in

law as ‘actual’ when the person sought to be affected by it knows

thereby of the existence of the particular fact in question.” “It is

the knowledge of facts which would naturally lead an honest and

prudent person to make inquiry.”

13. Further, the objective of a ‘notice’ has been succinctly discussed by

this Court in the case of Sohan Lal Singh versus Basic Education Board,

Allahabad and others; Civil Misc. Writ Petition No. 18886 of 1990

(Neutral Citation No. 2004:AHC:200) wherein this Court has observed

that, “the object of notice is to give an opportunity to the individual

concerned to present his case…” and further “The notice must be clear,

specific and unambiguous and the charges should not be vague and

uncertain.”

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14. The basic purpose behind serving of notice is to make the noticee

understand the precise case set up against him. The basic ingredients of a

notice will include the statement of imputations detailing out the alleged

breach that noticee has committed, the material ground which necessitates

an adverse action against the noticee, particulars of the penal action which

is proposed to be taken and a specific time period that is granted to the

noticee providing an opportunity to rebut and defend the alleged breach. It

is necessary that a notice under any Act should contain the above

mentioned ingredients for it to be a genuine Notice.

15. For better appreciation of the ingredients of the impugned notice dated

13.07.2023, the same is synthesised in two parts. The first part is a

direction to the petitioner to remove his possession from the land in

question within a period of seven days, by allegating him of

misappropriation of the Gaon Sabha property and carrying out

commercial activities on the same. The second part of the said notice is

that in case of non-compliance of the direction given in the first part, his

illegal possession shall be demolished by carrying out proceeding under

Section 136 of the Code of 2006, and recovery of compensation shall be

made from the petitioner, for which he himself will be responsible.

16. On critically examining the contents of the aforementioned impugned

notice, it is abundantly clear that the first part of the same can in no way

be considered to be a genuine notice as it lacks the basic element of

opportunity to the noticee to rebut and defend the allegation imposed

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against him, as the Sub Divisional Officer (respondent no.3) has

outrightly imputed the allegation of misappropriation (द

ुutrual Ca

) of the

Gaon Sabha property on the petitioner without disclosing any basis on

which the allegations made against him are founded and has directed him

to remove his possession from the land in question within a period of

seven days. The said direction for removal of possession is based on the

pre-mediated determination of misappropriation of Gaon Sabha land by

the petitioner. The petitioner/noticee has been denied the opportunity to

explain his status over the land in question, which is in utter violation of

the principles of natural justice and frustrates the real essence of a notice.

17. In so far as the second part of the impugned notice as mentioned

above is concerned, before analysing the same, it is necessary to go

through the contents of section 136 of the Code of 2006. For the ready

reference, Section 136 of the Code of 2006 is reproduced hereinbelow,

“136. Ejectment of trespassers of Gram Panchayat land—

(1) Notwithstanding anything contained in other provisions of this

Code, the Sub-Divisional Officer may, of his own motion or on the

application of the Gram Panchayat or other local authority, eject any

person taking or retaining possession of any land specified in sub-

section (2), if such possession is in contravention of the provisions

of this Code and is without the consent of such Gram Panchayat or

the local authority and shall also be liable to pay damages at the

rates prescribed.

(2) The provisions of sub-section (1) shall apply to the following

categories of land, namely —

(a) any land entrusted or deemed to be entrusted to any Gram

Panchayat or local authority under the provisions of this Code or any

other law for the time being in force;

(b) any land over which a Gram Panchayat or local authority is

entitled to take possession under the provisions of this Code;

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(c) any land which belongs to or is owned or held by a Gram

Panchayat or local authority;

(d) that the asami is holding land specified in clause (d) or clause (e)

of section 77 and that the cultivation of crops in such land has

become impossible;

(e) that the asami was admitted to the land under clause (b) of

section 125 of the Gram Panchayat proposes to use it for a public

purpose.

(3) No person shall be evicted from any land under this section

unless adequate opportunity to show cause has been afforded to him.

(4) In evicting a person under this section, the Sub-Divisional

Officer may use or cause to be used such force as may be necessary.

Explanation. - For the purposes of this section, the word ‘land’

includes trees and other improvements existing on such land.”

(Emphasis supplied)

18. From the bare perusal of section 136 as quoted above, it is abundantly

clear that the sub-section (1) empowers the Sub Divisional Officer to eject

any person Suo motu or on the application of the Gram Panchayat or other

local authority if he is found ‘taking or retaining possession of any land

specified in sub-section (2)’. Section 136 of the Code of 2006 covers only

those cases where the possession is found to be in contravention to the

provisions of the Code of 2006 and is without the consent of the Gram

Panchayat or the local authority.

19. In the instant case, the impugned notice indicates that the person to

whom it has been issued is guilty of misappropriation (द

ुutrual Ca

) of the

property belonging to Gaon Sabha. It would be not be out of place to say

that the cases relating to the misappropriation of the Gram Sabha property

is the subject matter of Section 67 of the Code of 2006.

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20. At this stage, it is pertinent to mention here that Section 67 of the

Code of 2006 also deals with the eviction of unauthorised occupants from

the land belonging to the Gram Panchayat or other local authority. For the

ready reference, Section 67 of the Code of 2006 is reproduced

hereinbelow:

“67. Power to prevent damage, misappropriation and wrongful

occupation of Gram Panchayat property—

(1) Where any property entrusted or deemed to be entrusted under

the provisions of this Code to a Gram Panchayat or other local

authority is damaged or misappropriated, or where any Gram

Panchayat or other authority is entitled to take possession of any

land under the provisions of this Code and such land is occupied

otherwise than in accordance with the said provisions, the Bhumi

Prabandhak Samiti or other authority or the Lekhpal concerned, as

the case may be, shall inform the Assistant Collector concerned in

the manner prescribed.

(2) Where from the information received under sub-section (1) or

otherwise, the Assistant Collector is satisfied that any property

referred to in sub-section (1) has been damaged or misappropriated,

or any person is in occupation of any land referred to in that sub-

section in contravention of the provisions of this Code, he shall issue

notice to the person concerned to show cause why compensation for

damage, misappropriation or wrongful occupation not exceeding the

amount specified in the notice be not recovered from him and why

he should not be evicted from such land.

(3) If the person to whom a notice has been issued under sub-section

(2) fails to show cause within the time specified in the notice or

within such extended time as the Assistant Collector may allow in

this behalf, or if the cause shown is found to be insufficient, the

Assistant Collector may direct that such person shall be evicted from

the land, and may, for that purpose, use or cause to be used such

force as may be necessary, and may direct that the amount of

compensation for damage or misappropriation of the property or for

wrongful occupation, as the case may be, be recovered from such

person as arrears of land revenue.

(4) If the Assistant Collector is of opinion that the person showing

cause is not guilty of causing the damage or misappropriation or

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wrongful occupation referred to in the notice under sub-section (2),

he shall discharge the notice.

(5) Any person aggrieved by an order of the Assistant Collector

under sub-section (3) or sub-section (4), may within thirty days from

the date of such order, prefer an appeal to the Collector.

(6) Notwithstanding anything contained in any other provision of

this Code, and subject to the provisions of this section every order of

the Assistant Collector under this section shall, subject to the

provisions of sub-section (5) be final.

(7) The procedure to be followed in any action taken under this

section shall be such as may be prescribed.

Explanation. - For the purposes of this section, the word ‘land’ shall

include the trees and buildings standing thereon.”

(Emphasis supplied)

21. The distinction as is evident from the bare reading of the above quoted

provisions of the Code of 2006 is that the provisions of Section 67 are

applicable to those cases also where the property belonging to the Gaon

Sabha or the local authority is ‘damaged or misappropriated’ but Section

136 deals with the cases of unauthorised occupation.

22. Taking into consideration the aforesaid provisions of the Code of

2006, it is clear that on the charge of misappropriation (द

ुutrual Ca

) of the

Gram Sabha land the action proposed to be undertaken under Section 136

of the Code of 2006, as mentioned in the notice, is unlawful being beyond

the purview of Section 136 of the Code of 2006.

23. On putting query by this Court about non applicability of section 136

of the Code of 2006 under the facts of this case, it has been urged by Sri

Pankaj Kumar Gupta, learned counsel for the respondent No. 4, that the

purpose of both the Sections, namely, 67 and 136 of the Code of 2006 is

common, i.e. to protect the Gram Sabha property from trespass,

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encroachment and misuse. Since, the petitioner was found misusing the

property belonging to the Gram Panchayat, the respondent No. 3

bonafidely issued the impugned notice, just to protect the Gram Sabha

land. The action taken by the authority concerned is perfectly legal and

justified. He further submits that mentioning of a wrong section, if any,

does not vitiate the impugned Notice and in support of his contention he

placed the judgement passed by the Hon’ble Supreme Court in the case of

Vikram Singh Junior High School versus District Magistrate (Fin. &

Rev.) and others; reported in (2002) 9 Supreme Court Cases 509.

24. Dealing with the aforementioned arguments made by Sri Gupta, it is

hereby made clear that from a bare reading of Sections 67 and 136 of the

Code of 2006, it is evident that though the object and purpose of both the

sections is quite similar yet the applicability and procedure for their

enforcement is quite different. The broad distinctions of the aforesaid two

sections can be seen as under:

24.1. So far as the scope of Sections 136 and 67 of the Code of 2006 are

concerned, the earlier is applicable even in those cases also where the land

‘belong to’ or ‘is owned’ or ‘held by’ the Gram Panchayat or the local

authority while the latter is in respect of the property referred to in that

section is occupied otherwise than in accordance with the provisions of

the Code of 2006.

24.2. Further, the proceeding under Section 67 is summary in nature as

provided under Rule 192 of the U.P. Revenue Code Rules, 2016

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(hereinafter referred to as the Rules of 2016) while the proceeding under

Section 136 of the Code of 2006 is not categorised as a summary

proceeding. For ready reference, the said Rule 192 of the Rules of 2016 is

reproduced hereinbelow,

“192. Determination of questions in summary proceedings (Section

225-A) —

(1) All the questions arising for determination in any summary

proceeding under this Code or these rules shall be decided upon

affidavits.

(2) The following proceedings shall be treated as summary

proceedings, namely:

Section Particulars

24 Demarcation proceedings.

25 Proceeding regarding rights of way and other

easements.

26 Proceeding regarding removal of obstacle

30(2) Proceeding regard physical division of

minjumla number.

31(2) Proceeding regarding determination od shares.

32 Proceeding regarding correction of records.

35 Mutation proceedings.

38 Proceeding regarding correction of error or

omission.

49 Proceeding regarding revision of map and

records.

58 Proceeding regarding dispute arising in respect

of any property referred to in sections 54, 56 or

57.

66 Proceeding regarding inquiry into irregular

allotment of Abadi sites.

67 Proceeding regarding eviction of unauthorised

occupants.

80 Proceeding regarding declaration for non-

agricultural use.

82 Proceeding regarding cancellation of

declaration.

98 Proceeding regarding permission to transfer

Bhumidhari land to person other than

Scheduled Caste.

101 Proceeding for exchange.

105(2) Proceeding for possession of Land.

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128 Proceeding for cancellation of allotment and

lease.

149 & 150 Proceeding for eviction of Government Lessee.

193 Proceeding to set aside sale for irregularity.

195 Proceeding for setting aside of sale by Collector

or Commissioner.

212 Proceeding for transfer of cases.

(Emphasis supplied)

(3) The State Government or the Board may declare any other

proceeding except the suits under the Code or these rules as the

summary proceeding.

(4) The procedure for disposal of summary proceedings is contained

in Revenue Court Manual.”

24.3. It would not be out of place to mention here that Section 225-A of

the Code of 2006 deals with the manner for determination of the questions

in summary proceedings. For a ready reference, Section 225-A of the

Code of 2006 is reproduced hereinbelow,

“225-A. Determination of questions in summary proceedings.—

Notwithstanding anything contained in other provisions of this

Code, all the questions arising for determination in any summary

proceeding under this Code shall be decided upon affidavits, in the

manner prescribed:

Provided that of Revenue Court or Revenue Officer is satisfied that

the cross examination of any witness, who has filed affidavit, is

necessary, it or he may direct to produce the witness for such cross

examination.

24.4. It is also relevant to note that the competent authorities to take

cognizance under above said provisions are different. In the cases under

Section 67 of the Code of 2006, the competent authority is the Assistant

Collector while under Section 136 of the Code of 2006, the competent

authority is the Sub-Divisional Officer. Moreover, there are distinct Rules

under the Rules of 2016 corresponding to Section 67 and Section 136 of

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the Code of 2006. The Rule corresponding to Section 67 of the Code of

2006 are Rules 66 and 67 of the Rules of 2016.

24.5. In so far as Section 136 of the Code of 2006 is concerned, the

corresponding Rule 118 of the Rules of 2016 deals with the ejectment of

unauthorised occupant from Gram Panchayat land and delivery of

possession of the same to the Gram Panchayat. For a ready reference, the

said Rule 118 is reproduced below,

“Rule 118. Delivery of possession to Gram Panchayat (Sections 124

and 136). —

(1) Where the interest of a bhumidhar in any land is extinguished

under the provisions of the Code or under any other law for the time

being in force, and any person is in unauthorized occupation of such

land, the Bhumi Prabandhak Samiti may apply to the Sub-Divisional

Officer for the ejectment of such occupant.

(2) The Sub-Divisional Officer may after issuing a show cause

notice to the person concerned, evict such unauthorised occupant

and deliver possession over the land to the Gram Panchayat.

(3) The provisions of this rule shall mutatis mutandis apply to the

eviction of an asami holding land from the Gram Panchayat or a

lessee from a Bank referred to in section 95(2).”

25. In view of the aforesaid, this Court is of the view that the provisions

of both the Sections 67 and 136 of the Code of 2006 should be applied

only in their respective domains/spheres, as defined under the Code of

2006 to be read with the corresponding Rules.

26. This Court finds that in the instant case the alleged notice which is

impugned in the present writ petition, by no stretch of imagination can be

considered as Notice, rather the same is clearly a premediated order/

direction to the petitioner for specific compliance of the same within a

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stipulated time, and as such cannot be regarded as genuine Notice. It is

admittedly not a Notice to show cause but a order/direction though termed

as Notice, for specific compliance of a premediated decision. Merely

putting the word ‘Notice’ on the top of the paper does not bring it in the

realm of a notice. In order to be considered as a notice, the document must

at least meet the conditions and characteristics as discussed in the

preceding paragraph nos.12, 13 and 14.

27. Further, the effect of mentioning a wrong provision of law in the

notice indicating initiation of proceeding under an incorrect provision of

law, amounts to deceiving the noticee, as it deviates and misdirects the

noticee from the correct line of defence and proper course of action. As

such, it is not at all fair and justified on the part of the authority concerned

to proceed in pursuance of the notice that proposes an action to be taken

under the provision defining the proceeding of different nature and to be

carried out by a different authority as prescribed under law.

28. Needless to say, that ‘justice must not only be done but should always

be seen to be done’. The Sub Divisional Officer (respondent No.3) before

issuing such a direction to the petitioner to remove his possession from

the land in question ought to have given an opportunity to have his

version before issuing such a direction affecting his civil rights. May it be,

that the petitioner in his reply could not have stated any fact which would

have dispelled the allegation levelled against him. In any case the action

taken by the public authority while exercising his judicial or quasi-judicial

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power must act with all fairness and in conformity with the law as well as

the principles of natural justice.

29. In so far as the judgement passed by the Hon’ble Supreme Court in

the case of Vikram Singh Junior High School (Supra), as has been relied

upon by Sri Gupta is concerned, the same does not support his contention

in the context of the present case. The ratio of the said judgement is that

‘merely quoting of wrong provision would not invalidate the order if it is

shown that such an order could be passed under the other provision’. For

better understanding the law laid down by the Hon’ble Supreme Court in

the above noted case, paragraph 3 of the same is reproduced below:

“The matter may also be examined from another angle. The

appellant was neither a bhumidhar, sirdar nor asami of the land in

dispute. The alleged resolution dated 15-8-1973 had no legal sanctity

in the absence of an approval of the Assistant Collector, First Class,

in charge of the sub-division and, therefore, the resolution did not

convey any title whatsoever in favour of the appellant. The entry in

the revenue record must have a legal basis. Further there was no

adjudication of dispute as regards continuance of the wrong entry.

The appellant could not have claimed any title over the land in

dispute merely on the basis of wrong entry which continued in its

favour through negligence or failure of the Revenue Officer or the

Consolidation Officer to correct the record, in pursuance of the order

of the Board of Revenue which had attained finality. In the

consolidation proceedings, the Collector is also the District Deputy

Director of Consolidation under the U.P. Consolidation of Holdings

Act and is authorised to correct any wrong entry continued in the

consolidation record in that capacity in the exercise of power under

Section 48 of the U.P. Consolidation of Holdings Act. Merely

because a wrong provision was quoted by the Collector for

exercising his power while deleting the name of the appellant from

the revenue record would not invalidate the order if it is shown that

such an order could be passed under the other provisions of the Act

viz. under Section 48 of the U.P. Consolidation of Holdings Act. In

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that view of the matter, we do not find any infirmity in the order

passed by the Collector.”

30. In the instant case, the dispute is that the action proposed to be

undertaken against the petitioner, as indicated in the notice is under

Section 136 of the Code of 2006 against the charge of misappropriation in

respect of the property belonging to Gaon Sabha while the same is a

subject matter of separate provision i.e. Section 67 of the Code of 2006

wherein the proceedings are summary in nature. Further, the authorities

that carry out proceeding in the aforesaid Sections are different i.e. under

Section 67 of the Code of 2006, the competent authority is the Assistant

Collector while under Section 136 of the Code of 2006, it is the Sub-

Divisional Officer. In any case, the situation herein is quite different. It is

not a case of ‘mere’ mentioning of a wrong provision of law, rather the

same has a direct bearing on the applicability of the provision to be

alleged charge, nature of proceeding and of jurisdiction of the authority.

In view of the aforementioned different factual matrix the ratio of the

Vikram Singh Junior High School (Supra) case is not applicable in the

present case.

31. As discussed hereinabove, in the instant case the allegation against the

petitioner is of misappropriation (द

ुutrual Ca

) in respect of the property

belonging to Gaon Sabha and the action proposed to be undertaken

against him, as indicated in the notice is under Section 136 of the Code of

2006 that deals with the cases of unauthorised occupation, while of the

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Code of 2006 itself provides a separate provision i.e. Section 67 that deals

with the misappropriation of Gram Sabha land. This itself goes to show

that the impugned notice suffers from such a manifest legal error that goes

to the very root of the case, so much so, the nature of both the

proceedings, in view of Section 192 of the Code of 2006 are all together

different. Moreover, the competent authorities to carry out the said

proceedings are also different as provided under relevant provisions of the

Code of 2006 and as such the impugned Notice proposing to proceed

under a non-applicable provision of law, entailing serious prejudice to the

civil as well as fundamental rights of the person, must not be allowed to

subsist.

32. On the preliminary objection as raised by the learned counsels for the

respondents regarding the maintainability of the writ petition challenging

a ‘notice’, this Court finds that where the question of legality and

correctness of the notice under any Act is involved, there shall be no bar

in entertaining the writ petition in appropriate cases. This view finds

support from the judgement passed by the Hon’ble Supreme Court in the

case of Siemens Ltd. versus State of Maharashtra reported in (2006) 12

SCC 33. The Hon’ble Supreme Court in the said judgement was pleased

to hold as under,

“9. Although ordinarily a writ court may not exercise its

discretionary jurisdiction in entertaining a writ petition questioning a

notice to show cause unless the same inter alia appears to have been

without jurisdiction as has been held by this Court in some decisions

including State of U.P.v. Brahm Datt Sharma [(1987) 2 SCC 179 :

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(1987) 3 ATC 319 : AIR 1987 SC 943] , Special Director v. Mohd.

Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri) 826] and

Union of India v. Kunisetty Satyanarayana [(2006) 12 SCC 28 :

(2006) 12 Scale 262] , but the question herein has to be considered

from a different angle viz. when a notice is issued with

premeditation, a writ petition would be maintainable. In such an

event, even if the court directs the statutory authority to hear the

matter afresh, ordinarily such hearing would not yield any fruitful

purpose. (See K.I. Shephard v. Union of India [(1987) 4 SCC 431 :

1987 SCC (L&S) 438 : AIR 1988 SC 686] .) It is evident in the

instant case that the respondent has clearly made up its mind. It

explicitly said so both in the counter-affidavit as also in its purported

show-cause notice.

10. The said principle has been followed by this Court in V.C.,

Banaras Hindu University v. Shrikant [(2006) 11 SCC 42 : (2006) 6

Scale 66] , stating: (SCC p. 60, paras 48-49)

“48. The Vice-Chancellor appears to have made up his mind to

impose the punishment of dismissal on the respondent herein. A

post-decisional hearing given by the High Court was illusory in this

case.”

49. In K.I. Shephard v. Union of India [(1987) 4 SCC 431 : 1987

SCC (L&S) 438 : AIR 1988 SC 686] this Court held: (SCC p. 449,

para 16)

‘It is common experience that once a decision has been taken, there

is a tendency to uphold it and a representation may not really yield

any fruitful purpose.’ ”

(See also Shekhar Ghosh v. Union of India [(2007) 1 SCC 331 :

(2006) 11 Scale 363] and Rajesh Kumar v. D.C.I.T. [(2007) 2 SCC

181 : (2006) 11 Scale 409] )

11. A bare perusal of the order impugned before the High Court as

also the statements made before us in the counter-affidavit filed by

the respondents, we are satisfied that the statutory authority has

already applied its mind and has formed an opinion as regards the

liability or otherwise of the appellant. If in passing the order the

respondent has already determined the liability of the appellant and

the only question which remains for its consideration is

quantification thereof, the same does not remain in the realm of a

show-cause notice. The writ petition, in our opinion, was

maintainable.”

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33. Further, in the case of Kaikhosrou (Chick) Kavasji Framji versus

Union of India and Another reported in (2019) 20 SCC 705, the Hon’ble

Supreme Court has reiterated that a writ court can entertain a writ petition

in appropriate cases wherein the question is in regard to the legality and

correctness of the notice issued under any Act and there is no bar in

entertaining the writ petition in appropriate cases.

34. The Hon’ble Supreme Court in paragraph 15 of its decision in the case

of Whirpool Corporation versus registrar of Trademarks, Mumbai,

reported in (1998) 8 SCC 1 carved out the following exceptions on the

existence whereof a Writ Court is justified in entertaining a writ petition:

(i)where the writ petition seeks enforcement of any of the

fundamental rights;

(ii)where there is violation of principles of natural justice;

(iii)where the order or the proceedings are wholly without

jurisdiction; or

(iv)where the vires of an act is challenged.

35. It would not be out of place to mention here that the power to issue

prerogative writs under Article 226 of the Constitution of India is plenary

in nature. It does not, in terms, impose any limitation or restraint on the

exercise of the power to issue writs. It is the discretion of the Writ Court

to entertain writ petition or not, depending upon the facts and

circumstances of each case. One of the self-imposed restrictions on the

exercise of the power under Article 226 of the Constitution that has

evolved through judicial precedents is that the High Court should

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normally not entertain a writ petition against a show-cause notice unless

the same, inter alia, appears to have been issued without jurisdiction.

There is a series of decisions rendered by the Hon’ble Supreme Court as

well as by this Court holding therein that ordinarily, no writ lies against a

show-cause notice. The reason why ordinarily a writ petition should not

be entertained against the notice to show cause is that at that stage the writ

petition may be held to be premature. Mere show-cause notice does not

give rise to any cause of action, but it does not amount to an adverse order

which affects the rights of any party unless the same has been issued by a

person having no jurisdiction to do so. Further, it is quite possible that

after considering the reply to the show-cause notice, the authority

concerned may drop the proceedings and/or hold that the charges are not

established. It is well settled that a Writ lies when any right of the party is

infringed. A mere show-cause notice does not infringe the right of any

person. It is only when certain order or direction adversely affecting the

rights of a party is passed, that the said party can be said to have a

grievance.

36. However, in the cases where the notice is in the form of an

order/direction by itself, and not a notice to show cause rather it is pre-

mediated direction for specific compliance holding the person concern

guilty, without being affording any opportunity to defend his case; the

same does not remain in the realm of a notice. In such cases, in my

opinion the Courts are entitled to interfere with the said order, under

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Article 226 of the Constitution of India. A similar view has been taken by

the Hon’ble Division Bench of the High Court of Judicature at Calcutta in

the case of “Joyous Blocks & Panels Private Limited & Anr. versus

Assistant Commissioner, Commercial Taxes, Ballygunge Charge & Anr.”

in M.A.T. No. 1931 of 2022 with IA No. CAN 1 of 2022, decided on

21.12.2022 wherein it has been held that if the authority has pre-decided

the issue and the show-cause notice is pre-mediated then it is not a show-

cause notice though termed as a show-cause notice. In such a situation,

the Writ Court has the right to interfere with the said notice/order, in

exercise of its extra-ordinary jurisdiction under Article 226 of the

Constitution of India.

37. In the instant case, from a bare perusal of the impugned notice dated

13.07.2023, it is abundantly clear that the Sub Divisional Officer

(respondent No.3), has issued the same with a pre-conceived notion that

the petitioner has misappropriated the Gram Sabha land and that his

possession is liable to be removed/demolished being illegal. As such,

without affording an opportunity of show cause to the petitioner as

required under law, he straight way issued direction to the petitioner to

remove his possession from the said property within a period of seven

days. There is nothing in the said impugned notice to suggest that the Sub

Divisional Officer has ever provided opportunity of show cause to the

petitioner. In view of the settled legal proposition on the subject, the

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present Writ Petition deserves to be entertained by this court under Article

226 of the Constitution of India.

38. Therefore, so far as the first part of the impugned Notice is concerned,

the same is practically a pre-mediated order/direction issued by the Sub-

Divisional Officer (respondent No. 3) to the petitioner for specific

compliance. Regarding the second part of the same, it is observed that

when the charge against the noticee/petitioner is of misappropriation of

the Gram Sabha land then the proceedings under section 136 of the Code

of 2006 as proposed to be undertaken, itself is beyond the domain and

scope of Section 136 of the Code of 2006 in the teeth of the fact that there

is a separate provision under Section 67 of the Code of 2006 to deal with

the cases of misappropriation of the Gram Sabha land.

39. Now, coming to the another aspect of the case that by means of the

impugned Notice which is in the form of a premediated order with a

direction for specific compliance, the petitioner has been held guilty of

misappropriation (द

ुutrual Ca

) of the Gram Sabha land, without

affording any opportunity of defence is against the basic principle that no

person shall be condemned either civilly or criminally without being

afforded an opportunity of being heard in answer to the charge made

against them.

40. In the case of State of U.P. versus Shatrughan Lal and another

reported in JT 1998 (6) SC 55, the Hon’ble Supreme Court has been

pleased to hold that:

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"One of the principles of natural justice is that a person against

whom an action is proposed to be taken has to be given an

opportunity of hearing. This opportunity has to be an effective

opportunity and not a mere pretence.”

41. Strict adherence to basic norms of natural justice is essential rather

inescapable while taking decision affecting rights of a person as observed

by the Hon’ble Supreme Court in the case of Ram Chander versus Union

of India reported in (1986) 3 SCC 103:

“It is a fundamental rule of law that no decision must be taken

which will affect the rights of any person without first giving him

an opportunity of putting forward his case. Both the Privy Council

as well as this Court have in a series of cases required strict

adherence to the rules of natural justice where a public authority or

body has to deal with rights.”

42. In the case of Commissioner of police, Bombay versus Gordhandas

Bhanji reported in AIR 1952 SC 16, the Hon’ble Supreme Court has been

pleased to observe that:

“Public Authorities cannot play fast and loose with the powers

vested in them, and persons to whose detriment orders are made are

entitled to know with exactness and precision what they are

expected to do or forbear from doing and exactly what authority is

making the order…..….An enabling power of this kind conferred

for public reasons and for the public benefit is, in our opinion,

coupled with a duty to exercise it when the circumstances so

demand. It is a duty which cannot be shirked or shelved nor it be

evaded, performance of it can be compelled.”

43. It is a well settled proposition of law that principles of natural justice

are inbuilt in the statutory rules and require observance unless the same

stand excluded by a statutory provision either specifically or by necessary

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implication. Any exercise of power prejudicially affecting another must

be in conformity with the rules of natural justice. The authority taking

action must be impartial and without any interest or bias of any type;

where the said authority is exercising judicial or quasi-judicial power, the

authority concerned must give full opportunity to the affected person to

produce all the relevant evidence in support of their case and must

disclose all material placed before it on the basis of which the allegations

made against them are founded and the said authority cannot utilise any

such material unless the opportunity of hearing is given to the party

against whom it is sought to be utilised. The authority must give

opportunity to the party concerned to rebut the evidence / material against

him and further to put forward, explain and substantiate his own version.

44. In any case, the manner in which the Sub Divisional Officer has

proceeded to issue the Impugned Notice dated 13.07.2023 does not even

satisfy the legal requirement of show cause as provided under section 136

(3) of the Code of 2006.

45. Now, it would also be apposite to discuss the law relating to necessity

of quashing the orders, which are inherently defective. In the case of

Ritesh Tiwari & other versus State of UP & other reported in 2011 (3)

MLJ 491 (SC), the Hon’ble Supreme Court has been pleased to hold as

under. For ready reference para 26 of the said Judgment it reproduced

below:

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“It is settled legal proposition that if an order is bad in its

inception, it does not get sanctified at a later stage. A subsequent

action/development cannot validate an action which was not

lawful at its inception, for the reason that the illegality strikes at

the root of the order. It would be beyond the competence of any

authority to validate such an order. It would be ironical to permit

a person to rely upon a law, in violation of which he has obtained

the benefits. (vide Upen Chandra Gogoi Vs. State of Assam &

Ors.,(1998) 3 SCC 381; Satchidananda Misra Vs. State of Orissa

& Ors.; (2004) 8 SCC 599; and Regional Manager, SBI Vs.

Rakesh Kumar Tewari, (2006) 1 SCC 530”

46. A similar view has also been taken in the case of Mangal Prasad

Tamoli (dead) by LRs. versus Narvadeshwar Mishra (dead) by LRs &

Ors., reported in (2005) 3 SCC 422, holding therein that if the order at the

initial stage is bad in law, then all further proceedings consequent thereto

will be nonest and have to be necessarily set aside. In another case of C.

Albert Morris versus K. Chandrasekaran & others, reported in (2006) 1

SCC 228, the Hon’ble Supreme Court has been pleased to observe that the

right in law exists only and only when it has a lawful origin.

47. It is also well settled that all Courts, whether civil or criminal, possess,

in the absence of any express provision, as inherent in their constitution,

all such powers as are necessary to do the right and to undo a wrong in the

course of administration of justice on the principle of quando lex aliquid

alicui concedit, concedere videtur etid sine quo res ipsae esse non potest

(when the law gives a person anything it gives him that without which it

cannot exist).

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48. The discretionary jurisdiction of this Court is inherent under the

powers conferred under Article 226 of the Constitution of India. It is true

that the writ jurisdiction, though wide, has to be exercised carefully and

with caution. However, it has to be exercised ex debito justitiae to do real

and substantial justice for the administration of which alone courts exist.

49. There is no doubt that the authority of the court exists for

advancement of justice and if any attempt is made to abuse that authority

so as to produce injustice, the court has power to prevent such abuse. It

would be an abuse of process of the court to allow any action which

would result in injustice and prevent promotion of justice. In such a

situation, the Writ Court in exercise of the power conferred under Article

226 of the Constitution of India is justified to quash any proceeding if it

finds that initiation / continuance of it amounts to abuse of the process of

court or quashing of the same would otherwise serve the ends of justice.

50. On the basis of foregoing analysis, the impugned notice dated

13.07.2023 is found to be unsustainable in the eyes of law and as such it is

liable to be quashed.Accordingly, the notice dated 13.07.2023 is hereby

quashed.

51. However, it is made clear that the concerned respondent authorities are

always at liberty to initiate proceedings afresh, strictly in accordance with

the provisions of law, without any premeditation and shall in no manner be

guided by its order dated 13.07.2023 though termed it a Notice, which has

been quashed by this Order.

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52. It is further provided that in case if the respondent authorities take

decision to initiate the aforesaid proceeding afresh, the same shall be done

with an open mind and by providing due opportunity to the petitioner to

put forward, explain and substantiate his own version; strictly in

accordance with law by adhering to the principles of natural justice which

are essential and inescapable while taking decision affecting the rights of

a person.

53. The Writ Petition is accordingly allowed. No order as to cost.

Order Date :- 15.9.2023

Abhishek/Sumaira

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