# Anish Kumar Mishra v. State of U.P. and others

- **Citation:** (2004) 1 ILRA 331
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-03-23
- **Case number:** Civil Misc. Writ Petition No. 2688 of 2004
- **Bench:** S.P. Srivastava, Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anish-kumar-mishra-v-state-of-u-p-and-others-40365
- **Pages:** 3

## Headnote

Sri Brahmdeo Misra,
S.C.

Natural
Justice-Domicile
Certificate
granted Assistant Collector-Subsequent
cancellation
without
affording
any
opportunity to petitioner of being heard-
Impugned order passed in violation of
principles of natural justice-quashed.
Held- Para 7

Mere
knowledge
of
the
enquiry
proceedings or presence at the hearing is
not enough. The person, who is going to
be adversely affected must be informed
of all the material which may be utilized
against him so that he may have the
opportunity to adduce the additional
evidence or material of probative value
which
might
deter
the
enquiring
authority from making the finding as
indicated above.
Case law discussed:
1984 (3) All E.R. 201
JT 1992 (6) SC 673
(1993) UPLBEC 25 (SC)

## Text

1 All] Anish Kumar Mishra V. State of U.P. and others 331
16. According to Mr. Agarwal, the
strike was only for one day and steps for
removal of the writ petitioner-appellant
was taken after 35 days. It cannot be
contended that since the authorities had
taken the decision after 35 days to remove
the writ petitioner-appellant from service,
the provisions of Article 311(2) of the
Constitution should have been followed
as we are of the firm view that it was not
reasonably practicable to hold the enquiry
and the gap of 35 days would not have
changed the situation.

17. We are, therefore, not inclined to
interfere with the order passed by the
learned Judge. Accordingly, the appeal is
dismissed. There will be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.3.2004

BEFORE
THE HON'BLE S.P. SRIVASTAVA, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 2688 of 2004

Anish Kumar Mishra

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri P.C. Pandey
Sri A.K. Sinha

Counsel for the Respondents:
Sri Brahmdeo Misra,
S.C.

Natural
Justice-Domicile
Certificate
granted Assistant Collector-Subsequent
cancellation
without
affording
any
opportunity to petitioner of being heard-
Impugned order passed in violation of
principles of natural justice-quashed.
Held- Para 7

Mere
knowledge
of
the
enquiry
proceedings or presence at the hearing is
not enough. The person, who is going to
be adversely affected must be informed
of all the material which may be utilized
against him so that he may have the
opportunity to adduce the additional
evidence or material of probative value
which
might
deter
the
enquiring
authority from making the finding as
indicated above.
Case law discussed:
1984 (3) All E.R. 201
JT 1992 (6) SC 673
(1993) UPLBEC 25 (SC)

(Delivered by Hon'ble S.P. Srivastava, J.)

1. Heard the learned counsel for the
petitioner.

2.

Learned
Standing
Counsel
representing the respondents no. 1 to 4
has also been heard.

It may be noticed that inspite of
repeated
opportunities
having
been
provided to file a counter affidavit in
opposition to the writ petition, no counter
affidavit has been filed so far inspite of
the fact that on 23.2.2004 it was made
clear that no further time for filing the
counter affidavit will be granted.

3. The petitioner has asserted that
Up
Zila
Adhikari/Deputy
District
Magistrate, Bhadohi, who was also
functioning as Assistant Collector, had
granted demicile certificate in favour of
the petitioner dated 10.7.2002 certifying
in favour of the petitioner dated 10.7.2002
certifying that he was a permanent
resident of village Kandhiya, Tehsil-
Bhadohi, District- Sant Ravi Das Nagar.
However, the aforesaid certificate was
http://www.allahabadhighcourt.nic.in
332 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
subsequently,
vide
the
order
dated
5.1.2004, a copy of which has been filed
as Annexure- 4 to the writ petitioner,
cancelled with the direction to initiate the
disciplinary
proceedings
against
the
Lekhpal who had submitted the report and
for lodging a First Information Report
initiating criminal proceedings against the
present petitioner.

4. The grievance of the petitioner is
that the aforesaid order proceeds on the
basis of the evidence which was never
brought to the notice of the petitioner and
further that the aforesaid order stands
vitiated in law as it has been passed
without affording any opportunity to the
petitioner of being heard.

5. The contention of the petitioner is
that the impugned order which visits the
petitioner with penal consequences ought
not to have been passed without affording
any opportunity of being heard to the
affected party.

6. As has already been noticed
herein above, the allegations made in the
writ petition specifically asserting that the
impugned order had been passed without
affording any opportunity of hearing to
the petitioner have not been controverted
by filing any counter affidavit and can
safely be accepted as correct.

7. The rules of natural justice can
operate in areas not covered by any law
validly made and are evolved to ensure
fair adjudication whenever rights of an
individual are affected. They are aimed to
secure fair play in action and prevent
miscarriage of justice. One of the first
principles of natural justice is that you
must not permit one side to use means of
influencing a decision which means are
not known to the other side. It has to be
emphasized that any person even if
represented at any enquiry who is to be
adversely affected by any decision therein
should not be left in the dark as to the risk
of the finding being made depriving him
any opportunity to adduce evidence or
material of probative value which, had it
been placed before the decision maker,
might have deterred him from making the
finding even through it cannot be
predicated that it cannot inevitably have
had that result. Observation to this effect
occurring in the decision of the Privy
Counsel in the case of Mohan Vs. Air ,
Newzealand Ltd. and others, reported in
1948 (3) All ER 201 at 210 clearly
indicate that mere knowledge of the
enquiry proceedings or presence at the
hearing is not enough. The person, who is
going to be adversely affected must be
informed of all the material which may be
utilized against him so that he may have
the opportunity to adduce the additional
evidence or material of probative value
which might deter the enquiring authority
from making the finding as indicated
above. As a matter of fact the Apex Court
in its decision in the case of State Bank of
India and others Vs. D.C. Aggarwal and
another, reported in JT 1992 (6) Supreme
Court 673 (1993) 1 UPLBEC 25 (SC) has
clearly held that taking action against a
person on the basis of certain material or
evidence without bringing the same to the
notice of such person is violative of
procedural safeguards and contrary to fair
and just enquiry.

8.

Considering
the
fact
and
circumstances as brought on record,
sufficient ground has been made out for
interference by this Court.

http://www.allahabadhighcourt.nic.in
1 All] Param Singh and others V. State of U.P. and another 333
9. Accordingly, this writ petition
succeeds and the impugned order dated
5.1.2004 is quashed with the liberty to the
concerned authority to proceeds afresh in
accordance with law against the petitioner
and pass a fresh order after affording him
reasonable opportunity of being heard.

Ordered accordingly.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 44463 of 1997

Param Singh and others
...Petitioner
Versus
State of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri Pankaj Mithal

Counsel for the Respondents:
S.C.

Land Acquisition Act-S. 18-Reference
under-Application
for-Limitation-Award
passed
on
26.2.1992-Application
for
reference under S. 18 filed on 30.7.1996Applicants came to know about the
award on 3.6.1996-Application, held,
within time-Direction that notice with
copy of award must be sent either by
Regd. Post or personally though some
messenger or through coureer and if
service is not effected in that manner,
then notice with essential contents of
award should be published in newspaper
having wide circulation-in the area.

Held: Paras 11 & 11

In our opinion the notice alongwith the
copy of the award must be sent to the
person concerned either by Registered
A/D post or personally through some
messenger or by courier, and if service is
not affected in that manner then the
notice with the essential contents of the
award should be published in some well
known
newspaper
having
wide
publication.

In the present case in the counter
affidavit it has only been stated that the
award was published by pasting it in the
notice board of the office of the SLAO
and by beat of drums (munadi). In our
opinion this is not adequate and hence
we have to conclude that proper notice
of the award was not given to the
petitioners, and they came to know of
the
award
only
on
3.6.96.
The
application under S. 18 was filed well
within 6 months of that date.
Case law discussed:
AIR 1961 SC 1500
AIR 1963 SC 1604
JT 1995 (2) SC 572
AIR 1989 Petitioner & H 261
AIR 1985 Guj. 170
1989 LACC 246

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
against the impugned orders dated 4.10.97
Annexure-5, 6 and 7 to the writ petition
and for a mandamus directing the
respondents to forward the reference
application under section 18 of the Land
Acquisition Act for decision by the
District Judge, Ghaziabad.

Heard learned counsel for the parties.

2. In this case it appears that the
award was given by the Special Land
Acquisition Officer on 26.2.92 and the
application under section 18 of the Act
was
filed
only
on
30.7.96.
That
application has been dismissed by the
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