# Ram Kumar v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 457
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-15
- **Case number:** J. Writ C No. 26782 of 2023
- **Bench:** Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kumar-v-state-of-u-p-ors-49351
- **Pages:** 16

## Headnote

Civil Law - U.P. Revenue Code, 2006 -
Sections 67, 136 - Article 226 of the
Constitution of India - Principles of
Natural Justice - Notice vs. Order -
Misappropriation of Gram Sabha Land -
Writ Jurisdiction
The petitioner, Ram Kumar, challenged a notice
dated 13.07.2023 issued by the Sub-Divisional
Magistrate (SDM), Shohratgarh, directing him
to remove his possession from a part of Gata
No. 316 (0.006 Hectare) within seven days,
alleging misappropriation of Gram Sabha land,
failing which action under Section 136 of the
U.P. Revenue Code, 2006, would be taken.

Held: (1) The writ petition was allowed, and
the impugned notice dated 13.07.2023 was
quashed. (2) The notice was not a genuine
show-cause
notice
but
a
premeditated
order/direction, lacking opportunity for the
petitioner to defend or rebut the allegations,
violating principles of natural justice as
required under Section 136(3) of the U.P.
Revenue
Code,

## Text

_Characters 0–39,960 of 52,858. This is a partial read: ask again with offset=39960 for what follows._

10 All. Ram Kumar Vs. State of U.P. & Ors.
457

22. The instant application is allowed
accordingly.

---------
(2023) 10 ILRA 457
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2023
BEFORE

THE HON'BLE SYED QAMAR HASAN RIZVI,
J.

Writ C No. 26782 of 2023

Ram Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mohammad Mustafa

Counsel for the Respondents:
C.S.C., Sri Pankaj Kumar Gupta

Civil Law - U.P. Revenue Code, 2006 -
Sections 67, 136 - Article 226 of the
Constitution of India - Principles of
Natural Justice - Notice vs. Order -
Misappropriation of Gram Sabha Land -
Writ Jurisdiction
The petitioner, Ram Kumar, challenged a notice
dated 13.07.2023 issued by the Sub-Divisional
Magistrate (SDM), Shohratgarh, directing him
to remove his possession from a part of Gata
No. 316 (0.006 Hectare) within seven days,
alleging misappropriation of Gram Sabha land,
failing which action under Section 136 of the
U.P. Revenue Code, 2006, would be taken.

Held: (1) The writ petition was allowed, and
the impugned notice dated 13.07.2023 was
quashed. (2) The notice was not a genuine
show-cause
notice
but
a
premeditated
order/direction, lacking opportunity for the
petitioner to defend or rebut the allegations,
violating principles of natural justice as
required under Section 136(3) of the U.P.
Revenue
Code,
2006.
(3)
The
notice
incorrectly cited Section 136, which applies to
unauthorized
occupation,
whereas
the
allegation of misappropriation falls under
Section 67, handled by the Assistant Collector
through summary proceedings, rendering the
notice legally flawed and beyond the SDM's
jurisdiction. (4) The mention of a wrong
provision (Section 136 instead of Section 67)
was not a mere irregularity but a manifest
legal error affecting the petitioner's rights,
distinguishing this case from Vikram Singh
Junior High School Vs District Magistrate. (5)
A
writ
petition
under
Article
226
is
maintainable when a notice is premeditated,
lacks jurisdiction, or violates natural justice,
as per Siemens Ltd. Vs St. of Maharashtra and
Whirlpool
Corporation
Vs
Registrar
of
Trademarks. (6) The respondent authorities
were
granted
liberty
to
initiate
fresh
proceedings under the correct provision
(Section
67),
ensuring
compliance
with
natural justice and providing the petitioner an
opportunity to present his case. (7) The court
emphasized that justice must not only be
done but must be seen to be done, and any
order bad in its inception cannot be sanctified
later, as per Ritesh Tiwari Vs St. of U.P. and
Mangal Prasad Tamoli Vs Narvadeshwar
Mishra.

Case Law Cited:

1. Siemens Ltd. Vs St. of Mah., (2006) 12 SCC
33;

2. Whirlpool Corporation Vs Registrar of
Trademarks, (1998) 8 SCC 1;

3.Vikram Singh Junior High School Vs District
Magistrate, (2002) 9 SCC 509; St. of U.P. Vs
Shatrughan Lal, JT 1998 (6) SC 55;

(Delivered by 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
458 INDIAN LAW REPORTS ALLAHABAD SERIES
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 - SubDivisional 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.

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 (admeasuring 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 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
10 All. Ram Kumar Vs. State of U.P. & Ors.
459
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:31654DB), 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
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 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:
460 INDIAN LAW REPORTS ALLAHABAD SERIES

`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 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, 6th 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."

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 noncompliance 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
10 All. Ram Kumar Vs. State of U.P. & Ors.
461
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 against him, as the Sub Divisional
Officer (respondent no.3) has outrightly
imputed the allegation of misappropriation
(िुमवामनयोजन) 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;

(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)'.
462 INDIAN LAW REPORTS ALLAHABAD SERIES
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 (िुमवामनयोजन) 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.

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 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 subsection (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
10 All. Ram Kumar Vs. State of U.P. & Ors.
463
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 (िुमवामनयोजन) 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, 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 (hereinafter
referred to as the Rules of 2016) while
the proceeding under Section 136 of the
Code of 2006 is not categorised as a
464 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
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.
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,
10 All. Ram Kumar Vs. State of U.P. & Ors.
465

"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 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 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.
466 INDIAN LAW REPORTS ALLAHABAD SERIES

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 quasijudicial 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 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
10 All. Ram Kumar Vs. State of U.P. & Ors.
467
136 of the Code of 2006, it is the SubDivisional 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 (िुमवामनयोजन)
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 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 : (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 counteraffidavit 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
468 INDIAN LAW REPORTS ALLAHABAD SERIES
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 counteraffidavit 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."

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 selfimposed 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
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
10 All. Ram Kumar Vs. State of U.P. & Ors.
469
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.