# RADHASOAMI SATSANG SABHA, Dayalbagh, Agra v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 276
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-08
- **Case number:** Writ C No. 33655 of 2023
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhasoami-satsang-sabha-dayalbagh-agra-v-state-of-u-p-ors-49441
- **Pages:** 20

## Headnote

A. Revenue Law - UP Revenue Code, 2006
- Section 26 - UP Revenue Code Rule,
2016 - Rule 186 - Summary proceeding -
Principle of natural justice - Applicability
- Held, S. 26 of the Code contemplate
issuance of notice or hearing before
passing an order under it as the principles
of natural justice are implicit in the
proceeding u/s 26 - R. 186 contemplates
that even in summary proceedings, the
authorities are bound to comply with the
principle of Civil Procedure Code as well as
the principle of nature justice - Impugned
action of the respondent was held in
violation of principle of natural justice.
(Para 31, 34 and 51)
B. Revenue Law - Eviction - Principle of
natural justice - Non consideration of
objection raised regarding jurisdiction -
Permissibility - Straightway eviction order
was passed - Validity challenged - Held,
order
impugned
is
vitiated
for
non
consideration of objections raised by the
petitioner. (Para 62 and 65)
C. Constitution of India - Article 226 -
Writ - Alternative remedy - When it
would not operate as bar - Whirlpool
Corporation's case relied upon - Held,
11 All. RADHASOAMI SATSANG SABHA, Dayalbagh, Agra Vs. State of U.P. & Ors.
277
alternative remedy would not operate as a
bar
in
at
least
three
contingencies,
namely, where the writ petition has been
filed for the enforcement of any of the
Fundamental Rights or where there has
been a violation of principle of natural
justice or where order or proceedings are
wholly without jurisdiction or the vires of
an Act is challenged - Relegating to the
petitioner to the alternate remedy would
serve no purpose. (Para 68 and 71)
D. Constitution of India - Article 14 -
Principle of natural justice - Definition
and object - The doctrine of natural
justice seeks not only to secure justice but
also to prevent miscarriage of justice.
Natural justice is an important concept in
administrative law - It is not possible to
define precisely and scientifically the
expression "Natural Justice". The principle
of natural justice or fundamental rules of
procedure of administrative action, are
neither fixed nor prescribed in any code -
By all standards, rules of natural justice
are great assurances of justice and
fairness. By developing the principle of
natural justice, courts have devised a kind
of code of fair administrative procedure.
(Para 36 and 37)
E. Principle of natural justice - Basic facet
and scope - Not giving sufficient time for
reply and preparing the case - Effect -
Held, the principle of natural justice
require that before any action likely to
effect a person is taken, he must be given
a notice to show cause why proposed
action should not be taken against him...
This is one of the basic facets of natural
justice and is a sine-qua-non of the right
of fair hearing - The notice to be valid and
effective, must be properly served on the
concerned
person.
It
must
give
sufficient time to enable the individual
to prepare his case - Not giving
sufficient time amounts to denial of
notice. (Para 43)
F. Maxim - Nemo debet esse judex in
propria causa - Meaning - No man
shall be a judge in his own cause, or a
man cannot act as judge and at the
same time a party or suitor; or the
deciding authority must be impartial
and have bias. (Para 38)
G. Maxim - Audi Alteram Partem -
Meaning - Hear the other side, or both
the sides must be heard, or no man
should be condemned unheard, or that
there must be fairness on the part of
the deciding authority. (Para 38)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

_Characters 0–39,906 of 66,821. This is a partial read: ask again with offset=39906 for what follows._

276 INDIAN LAW REPORTS ALLAHABAD SERIES
justly reposed, and are injurious to another,
or by which an undue and unconscientious
advantage is taken of another." In Patch Vs.
Ward [1867 (3) L.R. Chancery Appeals
203], Sir John Rolt, L.J. held that: "Fraud
must be actual positive fraud, a meditated
and intentional contrivance to keep the
parties and the Court in ignorance of the
real facts of the case, and obtaining that
decree by that contrivance."

26. The Supreme Court in Bhaurao
Dagdu Paralkar Vs. State of Maharashtra
& Ors. [2005 (7) SCC 605] held that:
"Suppression of a material document would
also amount to a fraud on the court.
Although, negligence is not fraud, it can be
evidence of fraud."

27. The aforesaid Authorities have
been considered by the Apex Court in the
case of Hamza Haji v. State of Kerala
reported in JT 2006 (8) SC 215.

28. The Assistant Registrar, though
not a court of law, exercises quasi judicial
or even administrative powers under
Societies Registration Act, 1860, hence the
ratio of law referred to here-in-above shall
also apply to the proceedings giving rise to
the instant writ petition.

29. For the aforesaid reasons,
considering the findings recorded in the
order dated 17.06.2023 under challenge and
order dated 14.09.2023 not challenged, I do
not find any good ground to invite written
response from the respondents or to grant
any relief to the petitioners.

30. The writ petition has no merit and
is, accordingly, dismissed.
----------
(2023) 11 ILRA 276
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2023

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Writ C No. 33655 of 2023

RADHASOAMI
SATSANG
SABHA,
Dayalbagh, Agra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ujjawal Satsangi, Sri Anurag Khanna
(Sr. Advocate)

Counsel for the Respondents:
C.S.C.

A. Revenue Law - UP Revenue Code, 2006
- Section 26 - UP Revenue Code Rule,
2016 - Rule 186 - Summary proceeding -
Principle of natural justice - Applicability
- Held, S. 26 of the Code contemplate
issuance of notice or hearing before
passing an order under it as the principles
of natural justice are implicit in the
proceeding u/s 26 - R. 186 contemplates
that even in summary proceedings, the
authorities are bound to comply with the
principle of Civil Procedure Code as well as
the principle of nature justice - Impugned
action of the respondent was held in
violation of principle of natural justice.
(Para 31, 34 and 51)
B. Revenue Law - Eviction - Principle of
natural justice - Non consideration of
objection raised regarding jurisdiction -
Permissibility - Straightway eviction order
was passed - Validity challenged - Held,
order
impugned
is
vitiated
for
non
consideration of objections raised by the
petitioner. (Para 62 and 65)
C. Constitution of India - Article 226 -
Writ - Alternative remedy - When it
would not operate as bar - Whirlpool
Corporation's case relied upon - Held,
11 All. RADHASOAMI SATSANG SABHA, Dayalbagh, Agra Vs. State of U.P. & Ors.
277
alternative remedy would not operate as a
bar
in
at
least
three
contingencies,
namely, where the writ petition has been
filed for the enforcement of any of the
Fundamental Rights or where there has
been a violation of principle of natural
justice or where order or proceedings are
wholly without jurisdiction or the vires of
an Act is challenged - Relegating to the
petitioner to the alternate remedy would
serve no purpose. (Para 68 and 71)
D. Constitution of India - Article 14 -
Principle of natural justice - Definition
and object - The doctrine of natural
justice seeks not only to secure justice but
also to prevent miscarriage of justice.
Natural justice is an important concept in
administrative law - It is not possible to
define precisely and scientifically the
expression "Natural Justice". The principle
of natural justice or fundamental rules of
procedure of administrative action, are
neither fixed nor prescribed in any code -
By all standards, rules of natural justice
are great assurances of justice and
fairness. By developing the principle of
natural justice, courts have devised a kind
of code of fair administrative procedure.
(Para 36 and 37)
E. Principle of natural justice - Basic facet
and scope - Not giving sufficient time for
reply and preparing the case - Effect -
Held, the principle of natural justice
require that before any action likely to
effect a person is taken, he must be given
a notice to show cause why proposed
action should not be taken against him...
This is one of the basic facets of natural
justice and is a sine-qua-non of the right
of fair hearing - The notice to be valid and
effective, must be properly served on the
concerned
person.
It
must
give
sufficient time to enable the individual
to prepare his case - Not giving
sufficient time amounts to denial of
notice. (Para 43)
F. Maxim - Nemo debet esse judex in
propria causa - Meaning - No man
shall be a judge in his own cause, or a
man cannot act as judge and at the
same time a party or suitor; or the
deciding authority must be impartial
and have bias. (Para 38)
G. Maxim - Audi Alteram Partem -
Meaning - Hear the other side, or both
the sides must be heard, or no man
should be condemned unheard, or that
there must be fairness on the part of
the deciding authority. (Para 38)
Writ petition allowed. (E-1)
List of Cases cited:

1. Kooper Vs Wandsworph Board of Works;
(1863) 14 CB (NS) 180

2. St. of Orrisa Vs Dr. Veenapani; AIR 1967
SC 1269

3. Liberty Oil Mills Vs U.O.I.; AIR 1984 SC
1271

4. Menka Gandhi Vs U.O.I.; (1978) 1 SCC
248

5. A. K. Kraipak Vs U.O.I.; AIR 1970 SC 150

6.
Olga
Tellis
Vs
Bombay
Municipal
Corporation; (1985) 3 SCC 545

7. K.I. Shephered Vs U.O.I.; AIR (1988) SC
686

8. Assistant Collector Customs Vs Vibhuti
Bhushan; (1989) 3 SCC 202

9. Mohinder Singh Gill Vs Chief Election
Commissioner; (1978) 1 SCC 405

10.
R.
Vs
South
West
London
Supplementary Benefit Appeal Tribunal, Ex
'p.' Bullen; (1976) 120 Sol Jo 437

11. Canara Bank & ors. Vs Debasis Das &
ors. ; (2003) 4 SCC 557

12. Raghbir Singh Sehrawat Vs State of
Haryana & ors. ; (2012) 1 SCC 792
278 INDIAN LAW REPORTS ALLAHABAD SERIES
13. Nareshbhai Bhagubhai & ors. Vs U.O.I.
& ors.; (2019) 15 SCC 1

14. Whirlpool Corp. Vs Registrar of Trade
Marks, Mumbai & ors. ; (1998) 8 SCC 1

15. UP Power Transmission Corporation Ltd
& anr. Vs CG Power and Industrial Solutions
Ltd & anr.; (2021) 6 SCC 15

16. Ghanashyam Mishra & Sons Pvt. Ltd. Vs
Edelweiss Asset Reconstruction Comp. Ltd.;
(2021) 9 SCC 657

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. This writ petition has been filed for
following prayer:

(a) Issue a writ, order or
direction by calling for records and setting
aside
the
Impugned
Notices
dated
14.09.2023
passed
in
Case
No.
T202301010103629 pertaining to Khasra
No. 309 and 320, Jaganpur Mustakil,
Tehsil Sadar District Agra;

(b) Issue a writ, order or
direction to the respondents not to interfere
with the peaceful possession of the property
situated at Khasra No. 297/473 Jaganpur
Mustakil, Tehsil Sadar, District Agra,
Khasra No. 309 Jaganpur Mustakil, Tehsil
Sadar, District Agra, Khasra No. 310
Jaganpur Mustakil, Tehsil Sadar, District
Agra, Khasra No. 311 Jaganpur Mustakil,
Tehsil Sadar, District Agra, and Khasra No.
273, Khaspur Mustakil, Tehsil Sadar,
District Agra and permit the Petitioner to
restore the walls and gates demolished by
the Respondents;

(c) Issue a writ, order or
direction
to
the
respondents
to
compensate
the
Petitioner
for
the
demolition taken place at Khasra No.
297/473 Jaganpur Mustakil, Tehsil Sadar,
District Agra, Khasra No. 309 Jaganpur
Mustakil, Tehsil Sadar, District Agra,
Khasra No. 310 Jaganpur Mustakil,
Tehsil Sadar, District Agra, Khasra No.
311 Jaganpur Mustakil, Tehsil Sadar,
District Agra, and Khasra No. 273,
Khaspur Mustakil, Tehsil Sadar, District
Agra and for the Police action taken
against the Karsewaks on 24.09.2023 by
the Respondents;

(d) Issue a writ, order or
direction for judicial enquiry against the
Respondents for the action of demolition
taken upon the properties of Petitioner on
23.09.2023 and 24.09.2023 and punish
them for the illegal act.

(e) Issue any other suitable writ,
order or direction, which this Hon'ble
Court may deem fit and proper in the
facts and circumstances of the case.

(f) Award costs to the petitioner.

(g) Pass any such other order/s
as may be deemed fit and proper.

2. During the pendency of the
aforesaid writ petition, an amendment
application was filed by the petitioner on
27.09.2023 seeking addition of para no.
64A to 65H after para no. 64 in the writ
petition and also for adding relief No. H,
I & J after the relief No. 'G' and certain
other amendments.

3. The amendment application filed
by the petitioner was allowed by this
Court vide order dated 27.09.2023 and,
thereafter,
the
amendments
were
incorporated in the writ petition. Newly
added relief i.e. relief No. H, I & J are
quoted as under:

(h) issue an appropriate writ,
order or direction calling for the record
and quashing the impugned notices dated
14.09.2023 passed in pursuance of Khasra
No. 105, 252 and 256 of Village Khaspur,
11 All. RADHASOAMI SATSANG SABHA, Dayalbagh, Agra Vs. State of U.P. & Ors.
279
Tehsil Sadar District Agra and Khasra No.
297M of Jaganpur Mustakil, Tehsil Sadar,
District Agra respectively.

(i) Issue an appropriate writ,
order or direction calling for record and
quashing the impugned orders dated
22.09.2023 passed in Case No. 3627/2023
(CIN
No.
T202301010103627)
(Local
Administration v Radhasoami Satsang
Sabha) and Case No. 3629/2023 (CIN No.
T202301010103629) (Local Administration
v Radhasoami Satsang Sabha).

(j) Issue an appropriate writ,
order or direction to the Respondent to
ensure medical treatment and issuance of
injury report/Medico legal certificate to the
Karsewaks of the Petitioner, who sustained
injuries in the Police Action of 24.09.2023.

4. Brief facts of the case as alleged in
the writ petition are that the petitioner
Radha Swami Satsang Sabha, Dayal Bagh,
Agra is a religious and charitable society
duly registered with its head-quarter at
Dayal Bagh, Agra. The petitioner claims to
be the owner in possession of land
measuring
1500
acres
in
village
Sikandrapur,
Khaspur,
Jaganpur
and
Ghatwasan, Tehsil and District Agra, out of
which 1200 acres is agricultural land. In
order to provide water to their agricultural
field, for irrigation purpose, an agreement
was entered into between the petitioner and
the Government of United Provinces on
14.09.1935, giving liberty to the petitioner
to pump water from river Yamuna subject
to certain terms and conditions mentioned
in the agreement.

5. In pursuance of the aforesaid
agreement, the petitioner constructed and
opened a private water course (nahar)
running from river Yamuna of 3.5Km long
with a maintenance track of either sides in
the land of Khasra Nos. 326, 330, 364 in
village Jaganpur, Khasra No. 205 in village
Sikandrapur and also through certain plots
of village Khaspur and the petitioner is in
continuous possession and enjoyment of
the nahar and its maintenance track for
more than 85 years.

6. Under a tripartite agreement
between Agra Municipal Corporation,
Yamuna Pollution Control Unit, U.P. Jal
Nigam, Agra and the petitioner, the
petitioner sold the land to the extent of 2.43
hectares
in
village
Jaganpur
for
construction of sewage treatment plant and
on a commitment given by the Agra
Municipal Corporation to the effect that the
Corporation would supply free of cost
treated sewage water from the Sewage
Treatment Plant to the extent of 40 MLD to
the petitioner for its irrigation purposes.

7. In the year 2010, the District
Administration of District Agra wanted to
construct a road by illegally occupying the
maintenance track in Khasra no. 205 of
village Sikandrapur, Tehsil Sadar, District
Agra. The petitioner, therefore, filed
Original Suit No. 1435 of 2010 impleading
State and Public Works Department for the
relief for permanent injunction in the court
of Civil Judge, Senior Division, Agra,
being Suit No. 1435 of 2010 which was
decreed in favour of the petitioner by a
judgment and decree dated 31.03.2012.
Against the aforesaid judgment, appeal was
filed by the defendants in the suit and the
aforesaid appeal is pending in the court of
Additional District Judge, Court No. 14,
Agra being appeal no. 68/2016. On
11.01.2020, the respondent no. 3 i.e. Sub
Divisional Magistrate, Sadar, Agra using
police force entered the premises of the
petitioner forcibly and demolished the gate
of the petitioner. The petitioner, thereafter,
filed execution application under Order 21
280 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule 32 C.P.C. seeking execution of the
decree passed in his favour. Since the
executing court was vacant, the petitioner
approached
Hon'ble
High
Court
in
proceedings
under
Article
227
of
Constitution of India i.e. Matters under
Article 227 No. 574 of 2020 where initially
an order of status quo was passed by the
Hon'ble Court. The aforesaid proceedings
under Article 227 of the Constitution of
India were later on withdrawn by the
petitioner as the executing court became
functional in Agra on 26.04.2023. The
aforesaid execution case is still pending.

8. On the basis of report submitted by
respondent no. 5 i.e. Lekhpal/Revenue
Inspector,
Tehsil
Sadar,
Agra,
the
respondents claimed that the property in
dispute is in unauthorized possession of the
petitioner, which is required to be removed.
The petitioner again approached this
Hon'ble Court by filing Writ petition No.
22582 of 2023 (Radha Swami Satsang
Sabha v. State of U.P. and 4 others) and this
Hon'ble Court vide its order dated
14.07.2023, passed an order of status quo
on the spot as on today which was later on
extended. Thereafter, certain FIRs were
also lodged against the office bearers of the
petitioner by the District Administration
which was challenged by the petitioner by
filing Criminal Misc. Writ Petition No.
15299 of 2023 and 15301 of 2023 which
are pending consideration. In the meantime,
a notice dated 14.09.2023 was received by
the
petitioner
in
Case
No.
T202301010103629 (hereinafter referred to
as "Case No. 3629"), under Section 26 U.P.
Revenue
Code,
2006
regarding
the
Bhukhand No. 309 recorded as Rasta
Shreni 6-2 in village Jaganpur, Tehsil
Sadar, District Agra, mentioning therein
that the petitioner has encroached the land
of public utility and directing the petitioner
to remove encroachment and appear before
the court of Tehsildar Sadar, Agra on
22.09.2023 to explain that why rasta was
encroached by petitioner, failing which, exparte proceedings may be drawn against the
petitioner.
A
similar
notice
dated
14.09.2023, in Case No. 3629, under
Section 26 of U.P. Revenue Code, 2006
regarding Bhukhand No. 320, recorded as
Rasta Shreni 6-2, village Jaganpur, Tehsil
Sadar,
Agra,
was
received
fixing
22.09.2023. The aforesaid notices are
annexed at page no. 197 & 198 of the paper
book.
On
22.9.2023,
the
petitioner
appeared in the court of Tehsildar and
prayed for 15 days time to file objection.
The aforesaid application for grant of time
was rejected by the Tehsildar and the
petitioner was directed to file their
objection and evidence, if any, in support of
his case by 04:00PM on 22.09.2023. The
petitioner, thereafter, filed a reply on
22.09.2023,
stating
therein
that
the
respondent
no.
4
Tehsildar
has
no
jurisdiction in the matter, since the land in
dispute
comes
within
the
territorial
jurisdiction of Nagar Panchayat, Dayal
Bagh, Agra and Provisions of U.P. Revenue
Code, 2006 are not applicable and as such,
the notice issued to the petitioner is without
jurisdiction. Copy of the objection filed by
the petitioner are annexed at page no. 200
of the paper book.

9. In the early morning of 23.09.2023,
the respondents came along with police
personnel and started demolishing the wall
and gate of the property of the petitioner.
On the evening of 24.09.2023, the
carsewaks of the petitioner gathered in their
field and the police force lathi charged the
carsewaks of the petitioner in which several
carsewaks were injured including several
women and children. At this stage, the
present writ petition was filed.
11 All. RADHASOAMI SATSANG SABHA, Dayalbagh, Agra Vs. State of U.P. & Ors.
281

10. In the amended writ petition, it
has been asserted by the petitioner that after
the demolition and police action on
23.09.2023 and 24.09.2023, the petitioner
was handed over with two more notices
dated 14.09.2023 issued under Section 26
of U.P. Revenue Code, 2006 as well as
two orders passed under Section 26 of
U.P.
Revenue
Code,
2006
dated
22.09.2023, in respect of the aforesaid
notices. By amendment, the petitioner has
challenged the orders dated 22.09.2023
passed in Case No. T-202301010103627,
(hereinafter referred to as "Case no.
3627") and order dated 22.09.2023
passed by the respondent no. 4 in Case
No. 3629 under Section 26 of the U.P.
Revenue Code, 2006.

11. Though there are several reliefs
claimed in writ petition by the petitioner,
learned counsel for the petitioner has
confined his arguments regarding the order
dated 22.09.2023 passed in Case No. 3627
& Case No. 3629 in proceedings under
Section 26 of the U.P. Revenue Code,
2006.

12. Since, the learned counsel for
the petitioner has confined his relief only
against the orders passed under Section
26 of U.P. Revenue Code, 2006 and since
the original record of the aforesaid cases
have been summoned and perused by this
Court with the help of learned counsel for
the parties, the writ petition is being
decided at the admission stage itself
without calling for a counter affidavit.
Learned Chief Standing Counsel Sri J. N.
Maurya appearing for the respondents has
stated that there is no necessity of filing
counter affidavit and the writ petition be
decided at the admission stage itself.
Therefore, with the consent of the parties, I
am proceeding to decide this writ petition.

13. Learned counsel for the petitioner
contended that though the petitioner was
served with notice dated 14.09.2023, in
Case No. 3629 in proceedings under
Section 26 of U.P. Revenue Code, 2006
regarding Bhukhand No. 309, situated in
village Jaganpur and Bhukhand No. 320
situated at village Jaganpur, the orders have
been passed regarding the Bhukhand no.
105, 252, 256, situated at village Khaspur,
Tehsil Sadar, Agra (in Case No. 3627) and
regarding the Bhukhand 326, 330, 364,
371, 271, 309, 320, 297 situated at village
Jaganpur (in Case No. 3629) and as such,
the orders impugned are ex-parte against
the petitioner without serving any notice to
show
cause
regarding
the
aforesaid
Bhukhand numbers. The orders impugned
are passed in violation of principle of
natural justice.

14. It is further contended by learned
counsel for the petitioner that even in
respect of Bhukhand situated at village
Jaganpur for which notice was served on
14.09.2023, the petitioner appeared before
the court and when came to know that the
proceedings are with regard to other
numbers also, prayed for grant of 15 days
time to file objections and evidence in
support of his case but the aforesaid
application of the petitioner was rejected by
respondent no. 4 and respondent no. 4 has
directed the petitioner to submit his reply
and file evidence in support of his case by
04:00 P.M. on 22.09.2023.

15. It is further contended by learned
counsel for the petitioner that grant of a
week's time to file reply and coupled with
fact that the respondent no. 4 has taken
cognizance of other land of the petitioner
for which no notice was given to the
petitioner, the insistence of the respondent
no. 4 directing the petitioner to submit
282 INDIAN LAW REPORTS ALLAHABAD SERIES
reply and evidence in support of his case by
04:00PM,
is
nothing
but
denial
of
opportunity to the petitioner to contest the
case and as such, is violative of principle of
natural justice. Learned counsel for the
petitioner
further
contended
that
on
22.09.2023, the objections were filed by the
petitioner as to maintainability of the
proceeding but the same has not been
considered by the respondent no. 4 and has
proceeded in undue haste to pass the order
dated 22.09.2023, directing for removal of
construction of the petitioner.

16. It has been contended by learned
counsel for the petitioner that the petitioner
has not encroached the public land and the
entire proceedings against the petitioner are
arbitrary and violative of principle of
natural justice.

17. Per contra, learned Additional
Advocate General appearing for the State
made following submissions:

(a)
The
proceedings
under
Section 26 of the U.P. Revenue Code, 2006
are summary in nature and does not require
an elaborate procedure for proceeding
under Section 26 of the U.P. Revenue
Code, 2006. Learned Additional Advocate
General relied upon Section 225 A of U.P.
Revenue Code, 2006 that all the questions
arising for determination in any summary
proceedings under this Code shall be
decided upon affidavits in the manner
prescribed. Sub Rule (2) of Rule 192 of
Uttar Pradesh Revenue Code Rules, 2016
provides that proceeding regarding removal
of obstacle under Section 26 of U.P.
Revenue Code, 2006, shall be treated as
summary proceedings.

(b) From the perusal of Section
26 of U.P. Revenue Code, 2006, it is clear
that the section does not contemplate
issuance of any notice before proceeding
under Section 26 of U.P. Revenue Code,
2006. In the present case, the order
impugned has been passed after giving
notice to the petitioner regarding all the
Khasra numbers and as such it cannot be
said that the orders have been passed in
violation of principle of natural justice.

(c)
On
22.09.2023,
on
an
application moved by the petitioner, time
was granted to the petitioner till 04:00P.M.
to file his objections and produce all the
evidence/material in support of his case but
except for the objection, no material or
evidence has been produced by the
petitioner in support of his claim.

(d) The petitioner has encroached
upon a public land and the same is liable to
be removed and the respondents has rightly
passed the order for removal of the
encroachment made by the petitioner from
the public land.

(e)
The
petitioner
has
an
alternative remedy of filing revision under
Section 27 of U.P. Revenue Code, 2006
before the Sub Divisional Officer and in
view of availability of alternative remedy,
this writ petition should not be entertained.

18. Before considering the rival
submissions made by the parties, it would
be appropriate to look into the statutory
provisions as contained in U.P. Revenue
Code, 2006.

19. Section 26 of U.P. Revenue Code,
2006 provides for removal of obstacles and
is quoted as under:

"26. Removal of obstacle.- If the
Tahsildar finds that any obstacle impedes
the free use of a public road, path or
common land of a village or obstructs the
road or water-course or source of water, he
may direct the removal of such obstacle
11 All. RADHASOAMI SATSANG SABHA, Dayalbagh, Agra Vs. State of U.P. & Ors.
283
and may, for that purpose, use or cause to
be used such force as may be necessary and
may recover the cost of such removal from
the person concerned in the manner
prescribed."

Section 225A of U.P. Revenue
Code, 2006 provides for determination of
question in summary proceedings and is
quoted as under:

[Section 225A. Determination of
questions
in
summary
proceeding.-
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 if Revenue Court or
Revenue Officer is satisfied that the crossexamination of any witness, who has filed
affidavit, is necessary, it or he may direct to
produce the witness for such crossexamination.]

20. Section 27 of U.P. Revenue Code,
2006 provides for the revisional powers of
the Sub Divisional Officer and is quoted as
under:

"27. Revisional powers of SubDivisional Officer.- The Sub-Divisional
Officer may call for the record of any case
decided by the Tahsildar under Section 25
or 26, for the purpose of satisfying himself
as to the legality or propriety of such
decision,
and
may,
after
affording
opportunity of hearing to the parties
concerned, pass such orders as he thinks fit
(substituted by U.P. Act No. 4 of 2016)."

21. First of all this Court has to decide
whether a notice is required to be given to
the petitioner in proceedings under Section
26 of U.P. Revenue Code, 2006. Contention
of the learned counsel for the petitioner is
that requirement of giving notice is implicit
in the provision as the order passed therein
is of civil consequences affecting the rights
of the petitioner. Per contra, learned
Additional Advocate General submitted
that from reading of provision it is clear
that proceeding under Section 26 of U.P.
Revenue Code, read with Section 225A, are
summary in nature and Section 26 of U.P.
Revene Code, 2006 in terms do not
contemplate issuance of notice to the
person found to be causing obstacle
impeading the free use of pathway etc.

22. The question has often arisen
whether the adjudicating authority is bound
to follow the principle of natural justice,
even though the statute under which the
adjudicating authority is exercising power
do not provide for the same. The law is
well settled. Byles J. in Kooper v.
Wandsworph Board of Works reported in
(1863) 14 CB (NS) 180 observed as under:
(page-194)

"(A) Long course of decisions,
beginning with Dr. Bentley's case and
ending with some recent cases, establish
that although there is no positive words in
the statute requiring that the party shall be
heard, yet the justice of the common law
will supply the omission of the legislature."

D. Smith (Judicial Review of
administrative action, 5th Edition at page
383) state that where an statute authorizing
interferes with the property or civil rights
was silent on the question of notice and
hearing, the courts will apply the rule as it
is "of universal application and founded on
the plainest principles of natural justice".
The above principle is accepted in India
also.

23. In case of State of Orrisa v. Dr.
Veenapani reported in AIR 1967 SC 1269,
284 INDIAN LAW REPORTS ALLAHABAD SERIES
the Hon'ble Apex Court has held that
where exercise of power results in civil
consequences unless the statute specifically
rules out, the principles of natural justice
would apply. In case of Liberty Oil Mills
v. Union of India reported in AIR 1984
SC 1271, the Hon'ble Supreme Court held
that it is not permissible to interpret any
statutory instrument so as to exclude
natural justice unless language of the
instrument leaves no option to the court.
Procedural fairness embodying natural
justice is to be implied whenever action is
taken effecting the rights of the parties.
(para 15 at page 1283, 1284).

24. In case of Menka Gandhi v.
Union of India reported in (1978) 1 SCC
248, it has been observed by Beg, C.J. that
it is well established that even where there
is no specific provision in the statute or the
rules made thereunder for showing cause
against action proposed to be taken against
an individual which effects the right of that
individual, the duty to give reasonable
opportunity to be heard will be implied
from the nature of the function to be
performed by the authority which has the
power to take punitive or damaging action.
(at page 402).

25. It has been further contended by
learned Additional Advocate General that
power under Section 26 of U.P. Revenue
Code, 2006 is administrative and not
judicial or quasi judicial and therefore,
there is no requirement of giving notice to
the person causing obstacle impeding the
free path way etc. Refuting the contention
of learned Additional Advocate General,
learned counsel for petitioner contended
that there is no difference between
administrative
and
quasi
judicial
proceeding and if the result of the
proceeding is of civil consequences,
affecting the right of the person observance
of
principles
of
natural
justice
is
mandatory.

26. In case of A. K. Kraipak v.
Union of India reported in AIR 1970 SC
150, (para 2001 page 156), Hegde J.
propounded "the aim of the rules of natural
justice is to secure justice or to put it
negatively to prevent miscarriage of justice.
These rules can operate only in areas not
covered by any law validly make. In other
words, they do not supplant the law of the
land but supplement it. (at page no. 272).

27. In case of Olga Tellis v. Bombay
Municipal
Corporation
reported
in
(1985) 3 SCC 545, the Apex Court held
that any action taken by a public authority
which is invested with statutory powers
has, therefore, to be tested by the
application of two standards: The action
must be within the scope of the authority
conferred by law and secondly, it must be
reasonable. If any action, within the scope
of the authority conferred by law, is found
to be unreasonable, it must mean that the
procedure established by law under which
that action is taken is itself unreasonable.
The substance of the law cannot be
divorced from the procedure which it
prescribes for, how reasonable the law is,
depends upon how fair is the procedure
prescribed by it. (Para 40 page 577).

28. In case of K.I. Shephered v.
Union of India reported in AIR (1988) SC
686, the Apex Court relying upon the
aforementioned judgments held as under:
(para-12 at page 693)

"12. Mullan in 'Fairness: The
New Natural Justice' has stated:-

"Natural justice co-exists with, or
reflected, a wider principle of fairness in
11 All. RADHASOAMI SATSANG SABHA, Dayalbagh, Agra Vs. State of U.P. & Ors.
285
decision-making and that all judicial and
administrative decision-making and that all
judicial and administrative decision-makers
had a duty to act fairly. "

In the case of State of Orrisa v.
Dr. (Miss) Binapani Dei & ors., [ 1967] 2
SCR 625 this Court observed:-

"It is true that the order is
administrative in character but even an
administrative order which involves civil
consequences as already stated, must be
made consistently with the rules of natural
justice after informing the first respondent
of the case of the State, the evidence in
support thereof and after giving an
opportunity to the first respondent of being
heard and meeting or explaining the
evidence. No such steps were admittedly
taken; the High Court was, in our
judgment, right in setting aside the order of
the State."

ln A.K Kraipak & ors. v. Union of
India & ors., [ 1970] 1 SCR 457 a
Constitution Bench quoted with approval
the observations of Lord Parker in Re: (H)
K (an infant) (supra). Hegde, J. speaking
for the Court stated:

"Very soon thereafter a third rule
was envisaged and that is that quasijudicial enquiries must be held in good
faith, without bias and not arbitrarily or
unreasonablly. But in the course of years
many more subsidiary rules came to be
added to the rules of natural justice. Till
very recently it was the opinion of the
courts that unless the authority concerned
was required by the law under which it
functioned to act judicially there was no
room for the application of the rules of
natural justice. The validity of that
limitation is now questioned. If the purpose
of the rules of natural justice is to prevent
miscarriage of justice one fails to see why
those rules should be made inapplicable to
administrative enquiries. Often times it is
not easy to draw the line that demarcates
administrative enquiries from quasi-judicial
enquiries. Enquiries which were considered
administrative at one time are now being
considered as quasi-judicial in character.
Arriving at a just decision is the aim of
both quasi-judicial enquiries as well as
administrative enquiries. An unjust decision
in an administrative enquiry may have
more far reaching effect than a decision in a
quasi-judicial enquiry."

These
observations
in
A.K.
Kopak's (supra) case were followed by
another Constitution Bench of this Court in
Chandra Bhavan Boarding and Lodging,
Bangalore v. The State of Mysore & Anr., l
19701 2 SCR 600. In Swadeshi Cotton
Mills v. Union of India, [1981] 2 SCR 533
a
three-Judge
Bench
of
this
Court
examined this aspect of natural justice.
Sarkaria, J. who spoke for the Court,
stated:-

"During the last two decades, the
concept of natural justice has made great
strides in the realm of administrative law.
Before the epoch- making decision of the
House of Lords in Ridge v. Baldwin, it was
generally thought that the rules of natural
justice apply only to judicial or quasijudicial proceedings; and for the purpose,
whenever a breach of the rule of natural
justice was alleged, Courts in England used
to ascertain whether the impugned action
was taken by the statutory authority or
tribunal in the exercise of its administrative
or quasi-judicial power. In India also, this
was the position before the decision of this
Court in Dr. Bina Pani Dei's case (supra);
wherein it was held that even an
administrative order or decision in matters
involving civil consequences, has to be
made consistently with the rules of natural
justice. This supposed distinction between
quasi-judicial and administrative decisions,
which was perceptibly mitigated in Bina
286 INDIAN LAW REPORTS ALLAHABAD SERIES
Pani Dei's case (supra) was further rubbed
out to a vanishing point in A.K. Kraipak's
case (supra) ......................... ".

On the basis of these authorities it
must be held that even when a State agency
acts administratively, rules of natural
justice would apply. As stated, natural
justice generally requires that persons liable
to be directly affected by proposed
administrative
acts,
decisions
or
proceedings be given adequate notice of
what is proposed so that they may be in a
position (a) to make representations on
their own behalf; (b) or to appear at a
hearing or-enquiry (if one is held); and (c)
effectively to prepare their own case and to
answer the case (if any) they have to meet."

29. In case of Assistant Collector
Customs v. Vibhuti Bhushan reported in
(1989) 3 SCC 202, the Apex Court held (at
page 208) "the right to notice, flows not
from the mere circumstance that there is a
proceeding of a judicial in nature, but
indeed it goes beyond to the basic reason
which gives to the proceedings, its
character, and that reason is that a right of a
person may be affected and there may be
prejudice to that right if he is not affording
an opportunity to put forward his case in
the proceedings."

30. In case of Mohinder Singh Gill
v. Chief Election Commissioner reported
in (1978) 1 SCC 405, the Apex Court held
(at page 440) "what is a civil consequence,
let us ask ourselves, by passing verble
booby-traps?
'civil
consequence',
undoubtedly, cover infraction of not merely
property or personal rights but of civil
liberties, material deprivation and non
pecuniary damages. In its comprehensive
commopation, everything that effects the
citizen in his civil life, inflects a civil
consequence".

31. Thus, in view of law laid down by
Apex Court referred above, I am of the
view that the contention of the learned
Additional Advocate General that Section
26 of U.P. Revenue Code, 2006 does not
contemplate issuance of notice or hearing
before passing an order under Section 26 of
U.P. Revenue Code, 2006 is not tenable as
the principles of natural justice are implicit
in proceeding under Section 26 of U.P.
Revenue Code, 2006.

32. Furthermore, though, the Section
26 of U.P. Revenue Code, 2006 does not in
so many word incorporates the observance
of
principles
of
natural
justice
in
proceedings under Section 26 of U.P.
Revenue Code, 2006, it would be relevant
to refer to rule 186 of the U.P. Revenue
Code, 2016 which is as under:

"186. Non-applicability of CPC
(Section 214).- The provisions of the Code
of Civil Procedure, 1908 shall not be
applicable to the summary proceedings
under the Code or these rules, but the
principles enshrined in the Code of Civil
Procedure, 1908 and the principles of
natural justice shall be observed in the
disposal of such proceedings."

33. Rules of U.P. Revenue Code 2016
has been framed in exercise of powers
conferred of Section 233 of U.P. Revenue
Code, 2006, Sub Clause XVII of U.P.
Revenue Code, 2006 provides that State
Government may by notification make
rules for duties of any officer or authority
having jurisdiction under this code and the
procedure to be followed by him. Section
233 is quoted as under:

"233. Rules.- (1) The State
Government [may, by] notification make
11 All. RADHASOAMI SATSANG SABHA, Dayalbagh, Agra Vs. State of U.P. & Ors.
287
rules for carrying for the purposes of this
Code.

(2) Without prejudice to the
generality of the foregoing power, such
rules may also provided for-

(i)......

(ii)......

.......

(xvii) the duties of any [officer or
authority] having jurisdiction under this
Code and the procedure to be followed by
him;..."

34. Thus, the Rules 186 contemplates
that even summary proceedings, the
authorities are bound to comply with the
principle of Civil Procedure Code as well
as the principle of nature justice.

35.

Now
reverting to
second
submission of learned counsel for the
petitioner that the orders impugned are
vitiated for non observance of principles of
natural justice. Refuting the submission
made by learned counsel for the petitioner,
learned
Additional
Advocate
General
contended that the orders impugned had
been passed after complying the principles
of natural justice. Learned Additional
Advocate General further contended that
fair hearing does not stipulate that
proceeding be as formal as in a court.
Natural justice is not a replica of the court
procedure at the level of adjudicatory
bodies.
Before
considering
the
rival
submissions it would be useful to consider
the ingredients of principles of natural
justice.

36. Natural justice can be described as
"fairplay in action". The doctrine of natural
justice seeks not only to secure justice but
also to prevent miscarriage of justice.
Natural justice is an important concept in
administrative law. It is not possible to
define precisely and scientifically the
expression "Natural Justice". The principle
of natural justice or fundamental rules of
procedure of administrative action, are
neither fixed nor prescribed in any code.

37. By all standards, rules of natural
justice are great assurances of justice and
fairness. By developing the principle of
natural justice, courts have devised a kind
of code of fair administrative procedure.

38. The traditional English law as
well as Indian law recognized two
principles of natural justice:

(1) Nemo debet esse judex in
propria causa: No man shall be a judge in
his own cause, or a man cannot act as judge
and at the same time a party or suitor; or
the deciding authority must be impartial
and have bias; and

(2) Audi Alteram Partem: Hear
the other side, or both the sides must be
heard, or no man should be condemned
unheard, or that there must be fairness on
the part of the deciding authority.

39.

However,
due
to
rapid
development and growth of constitutional
law as well as administrative law, a third
principle of natural justice has also
emerged i.e. speaking orders or reasoned
decisions.

40. In the present case, we are mainly
concerned with a violation of second and
third Rule i.e. Audi Alteram Partem i.e. no
one should be condemned unheard and also
that all the orders should be supported by
reasons.

41. The second fundamental principle
of natural justice is Audi Alteram Partem
288 INDIAN LAW REPORTS ALLAHABAD SERIES
i.e.