# Paras Nath Yadav and another v. Commissioner, Azamgarh and others

- **Citation:** (2012) 1 ILRA 258
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-03-23
- **Case number:** Civil Misc. Writ Petition No. 57 of 2001
- **Bench:** Sunil Hali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/paras-nath-yadav-and-another-v-commissioner-azamgarh-and-others-42114
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
226Principle
of
Natural
Justice-violation
thereof-when allegation of fraud or
misinterpretation-non
compliance
of
Principle of Natural Justice-not fetallease granted under family planning
scheme beyond scope of category given
in Section 198-A of Act-held-Patta itself
nonest-no statutory right going to be
effected-warrant no interference under
Writ jurisdiction.

Held: Para 6

A person can claim protection of rules of
natural justice where he has an existing
right which is sought to be taken away.
The petitioner admittedly had no existing
right which was being taken away
without following the rules of natural
justice. It is for the protection of vested
legal rights, which entitles him a right of
hearing but where there exists no right,
no hearing is required.

## Text

258 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2012

BEFORE
THE HON'BLE SUNIL HALI,J.

Civil Misc. Writ Petition No. 57 of 2001

Paras Nath Yadav and another

 ...Petitioner
Versus
Commissioner, Azamgarh and others

 ...Respondent

Counsel for the Petitioner:
Sri Satya Prakash
Sri R.L.Yadav
Sri Harindra Prasad

Counsel for the Respondents:
C.S.C.
Sri Anuj Kumar
Sri I.K.Upadhyay

Constitution
of
India,
Article
226Principle
of
Natural
Justice-violation
thereof-when allegation of fraud or
misinterpretation-non
compliance
of
Principle of Natural Justice-not fetallease granted under family planning
scheme beyond scope of category given
in Section 198-A of Act-held-Patta itself
nonest-no statutory right going to be
effected-warrant no interference under
Writ jurisdiction.

Held: Para 6

A person can claim protection of rules of
natural justice where he has an existing
right which is sought to be taken away.
The petitioner admittedly had no existing
right which was being taken away
without following the rules of natural
justice. It is for the protection of vested
legal rights, which entitles him a right of
hearing but where there exists no right,
no hearing is required.

(Delivered by Hon'ble Sunil Hali,J. )

1. Both the aforementioned writ
petition involving identical questions of
law and facts have been heard together
and are being decided by a common
judgment treating WRIT - C No. - 57 of
2001 as leading case.

2. The petitioner was allotted a
patta of the plot no. 469-Ka measuring
90 decimal, 469-Ka measuring .90
decimal and 479-Ka measuring .007
decimal situated in village Malpur Lohrai
in the year 1988. An approval was
granted by the Sub-Divisional Officer
and possession of the property was
handed over to the petitioner. The
allotment was made in favour of the
petitioner under the category of having
undergone
family
planning.
An
application was moved by respondent no.
4 seeking cancellation of allotment on
the ground that the order of allotment has
been passed in violation of Section 198A(1) of the U.P. Z.A. & L.R. Act (in
short as 'the Act').

3. On this being brought to the
notice of the Additional Commissioner, a
report from the concerned agency was
obtained. The objections were filed by
the petitioner to the said report on
30.12.1996. It also appears that the
opportunity was given to the petitioner
for leading his evidence but he could not
present on the date when the case was
fixed. On his failure to appear, the order
impugned was passed on 31.3.1998,
canceling patta granted in his favour.

4. An application for recalling of
the order was filed on the ground that it
was an exparte order. After hearing the
parties, a detailed order was passed by
1 All] Paras Nath Yadav and another V. Commissioner, Azamgarh and others
259
the
Collector
holding
that
the
proceedings were not exparte. A revision
preferred against the aforesaid order also
stands
dismissed.
Under
these
circumstances, the present petitions have
been filed.

5. The only ground taken by the
petitioner is that he was not heard before
cancellation order was passed by the
Collector. The petitioner has been
allotted patta under the category of
having undergone family planning. This
fact has not been disputed by the
petitioner. While scanning section 198A(1) of the Act, there is no category
which provides that those persons who
have undergone family planning would
be allotted patta. The allotment order
issued in favour of the petitioner is ex
facie in contravention of the provisions
of Section 198-A(1) of the Act. The
Collector in his order has held that the
allotment has been made in favour of the
petitioner in violation of the provisions
of Section 198-A(1) of the Act. After
having held that the petitioner has been
allotted
patta
in
violation
of
the
provisions of Section 198-A(1) of the
Act, allotment was cancelled.

6. The contention of the learned
counsel for the petitioner is that an
exparte proceeding was initiated against
the petitioner which is in violation of the
rules of natural justice. On facts, it
transpires that the petitioner had filed his
objection
and
was
provided
an
opportunity by the prescribed authority
to lead his evidence. He failed to appear
before the Enquiry Officer on the date.
Consequently, the order was passed
canceling his Patta. The other aspect of
the matter is whether the petitioner was
prejudiced by non-observance of rules of
natural justice. It be seen that the
petitioner had obtained an allotment of
patta in violation of the provisions of
section 198 of Act. He claims that
allotment of patta was made on the basis
that he had undergone family planning
which is not a category mentioned in the
aforesaid Act for allotment of the patta.
The allotment of patta was perse in
violation of provisions of Section 198 of
the Act and for all purposes it is non est
in the eyes of law. The aggrieved party
can not take protection of the rules of
natural justice in such cases. The order
obtained by mis-representation or fraud
is void ab-initio and it is always to be
treated as non-existent. A person can
claim protection of rules of natural
justice where he has an existing right
which is sought to be taken away. The
petitioner admittedly had no existing
right which was being taken away
without following the rules of natural
justice. It is for the protection of vested
legal rights, which entitles him a right of
hearing but where there exists no right,
no hearing is required.

7. I, therefore, find no reason to
interfere with the order impugned passed
by the courts below. Both the writ
petitions are accordingly dismissed.

8. A prayer is made by the learned
counsel for the petitioner that the
petitioner may be permitted to approach
the Gaon Sabha for allotment of the land.
No such direction can be issued by this
Court. It is for the petitioner to approach
the Gaon Sabha in case he is entitled
under the law.
---------
260 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.03.2012

BEFORE
THE HON'BLE UMA NATH SINGH, J
THE HON'BLE RITU RAJ AWASTHI, J.

Special Appeal No. 73 of 2012

Rajendra Prasad Upadhyaya 529 (S/S)
2012

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

Counsel for the Petitioner:
Sri Rajan Roy
Sri Sanjay Singh

Counsel for Respondent:
CSC

Constitution of India, Article 226-Writ
jurisdiction-alternative
remedyPunishment without following procedure
under
rules-no
proper
opportunity
claimed-can not be dismissed on ground
of alternative remedy-dismissal by Single
judge outrightly without having counter
affidavit-held not proper.

Held: Para 26

The
learned
Single
Judge
while
dismissing the writ petition on the
ground of availability of alternative
remedy did not address itself on the plea
of violation of principles of natural
justice in the departmental enquiry and
relegated
the
appellant
to
avail
departmental remedy, we are of the
considered opinion that the impugned
order requires interference. In cases of
violation of principles of natural justice
and denial of reasonable opportunity to
defend in the disciplinary proceedings,
the writ petition is fully maintainable
and it shall not be normally dismissed on
the ground of availability of alternative
remedy, as was the position in the
present case.
(Delivered by Hon'ble Ritu Raj Awasthi, J.)

1. This special appeal arises out of
the final order dated 30.01.2012 passed in
Writ Petition No. 529 (SS) of 2012
(Rajendra Prasad Upadhyaya Versus State
of
U.P.
and
others),
wherein
on
preliminary objection raised by the learned
Standing Counsel, the writ petition was
dismissed on the ground of availability of
alternative remedy to the petitioner at the
admission stage.

2. Since the grounds raised in the
appeal relates to the maintainability of the
writ petition in the background of
existence of alternative remedy, which are
purely legal in nature, thus, we have
proceeded to decide the special appeal at
the admission stage with the consent of
parties' counsel.

3. Heard Mr. Anil Tiwari, learned
Senior Advocate, assisted by Mr. Rajan
Roy, learned counsel for appellant and
Smt. Sangeeta Chandra, learned Additional
Chief Standing Counsel for State and
perused the record.

4. Sworn of unnecessary facts,
suffice is to mention that the writ petition
before the learned Single Judge was filed
against
the
punishment
order
dated
31.12.2011 challenging the punishment of
reduction in rank to the post of Chowkidar
and withholding of increment for the year
2006-07
alongwith
punishment
of
reprimand.

5. As per appellant-petitioner, he was
initially appointed as Mate in the Irrigation
Department in the year 1972 and thereafter
promoted on adhoc basis as junior clerk in
the year 1977 and confirmed on the said
post in 1978. As a consequence of re-