# Shiv Poojan Prasad v. District Magistrate, Chandauli and others

- **Citation:** (2003) 2 ILRA 409
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-01-09
- **Case number:** Civil Misc. Writ Petition No. 55497 of 2002
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-poojan-prasad-v-district-magistrate-chandauli-and-others-40101
- **Pages:** 4

## Headnote

Constitution of India- Article 226 Reauction
of
fisheries
rights
without
cancellation of patta duly executed in
favour of the petitioner- the decision of
administrative or quasi judicial body
affecting vested rights or interest of
individual could not be altered without
affording opportunity of hearing when
there is an obligation to adopt the
judicial approach and to comply with the
basic requirements of justice, principles
of Audi Alteram partem have to be
observed.

Held- Para 4

It is well settled that (decision of
administrative or quasi judicial body
affecting vested rights or interest of
individual could not be altered without
affording opportunity of hearing. When
there is an obligation to adopt the
judicial approach and comply with the
basic requirements of justice, principles
of Audi Alteram Partem have to be
observed.)

## Text

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2 All] Shiv Poojan Prasad V. District Magistrate, Chandauli and others
409
there is adequate remedy to do what the
civil court would normally do in a suit can
not be doubted. That was a case under the
Bengal Cess Act and the question about
determination of annual net profits was
involved there. As already discussed
above, the provisions of Section 28 of
U.P. Act No. 13 of 1972 apply in a
different situation where the tenant wants
the landlord to bear the expenses of the
repairs. It does not take away the right of
the tenant to effect the repairs himself.
The order of the appellate court, therefore,
does not suffer from any error, which may
call for any interference under Article 226
of the Constitution.

Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2003

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 55497 of 2002

Shiv Poojan Prasad

...Petitioner
Versus
District
Magistrate,
Chandauli.
and
others

 ...Respondents

Counsel for the Petitioner:
Sri R.N. Shukla

Counsel for the Respondents:
Sri D.K.S. Rathor
Sri S.N. Singh
S.C.

Constitution of India- Article 226 Reauction
of
fisheries
rights
without
cancellation of patta duly executed in
favour of the petitioner- the decision of
administrative or quasi judicial body
affecting vested rights or interest of
individual could not be altered without
affording opportunity of hearing when
there is an obligation to adopt the
judicial approach and to comply with the
basic requirements of justice, principles
of Audi Alteram partem have to be
observed.

Held- Para 4

It is well settled that (decision of
administrative or quasi judicial body
affecting vested rights or interest of
individual could not be altered without
affording opportunity of hearing. When
there is an obligation to adopt the
judicial approach and comply with the
basic requirements of justice, principles
of Audi Alteram Partem have to be
observed.)

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

1. Present petition has its genesis in
the order dated 26.11.2002 passed by the
District Magistrate Chandauli arrayed as
respondent no. 1 and the consequential
order dated 29.11.2002 thereby reopening
the auction of pond/Tank for fisheries
rights, comprising in Plot no. 609/2, 619,
687 admeasuring 2.56 acres situated in
village Baburi Pergana Majhwar Tahsil
and District Chandauli.

2. Facts shorn of unnecessary details
are that the pond/tank in question was, to
begin with, put to auction in accordance
with law on 9.10.2002 and the fisheries
rights came to be settled in favour of the
petitioner who being the highest bidder
i.e. Rs.70,000/- Subsequently, Patta came
to be executed in favour of the petitioner
on 30.10.2002 by the competent authority.
It
transpires
from
the
record
that
respondent no.4 made an application
seeking cancellation of the Patta before
the District Magistrate Chandauli on the
ground that manipulations were contrived
in the proceeding of auctioning the
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
410
fisheries rights to the petitioners in the
pond/tank in question. In the self-same
application preferred for cancellation of
Patta, the respondent no.4 gave yet higher
offer. It would further transpire from the
record that on the said application,
Tahsildar - respondent no.3 issued notice
on 20.11.2002 fixing 28th Nov. 2002 for
appearance and hearing. It would further
appear from the record that the District
Magistrate
took
up
the matter on
26.11.2002 before the date fixed and
made direction to the Sub Divisional
Officer to initiate proceeding for re -
auction of the pond/tank visibly on the
premises that Opposite Party no.4 had
made offer of Rs.2,80,000/- for fisheries
rights in the said pond/tank. As a sequel
to the direction the Sub divisional Officer
called for a report from the Tahsildar vide
order dated 29.11.2002.

3. I have heard learned counsel for
the parties and considered the respective
contentions in all its ramifications. One
Bablu son of r respondent no.2 who has
filed an application for impleadment in
the instant petition is represented by Sri
D.K.S. Rathore. On behalf of Jagdish
Prasad,
caveator,
Sri
S.N.
Singh
addressed the Court. Learned counsel for
the petitioner began his submission
stating that auction in favour of the
petitioner
had
attained
finality
on
9.10.2002 and resultantly Patta was
executed accordingly on 30th Oct 2002 by
the Competent Authority with consequent
approval of the Sub Divisional Officer
affixed thereon. He further submitted that
the Patta still subsists and has not been
rescinded. On application of the Opposite
Party no.4, proceeds the submission, a
notice was received from Tahsildar to
appear on 28th Nov. 2002 and before the
petitioner could act upon the notice,
orders were made for-reauctioning of the
pond/tank for fisheries rights without any
authority of law. He further submitted that
the impugned order dated 26th Nov. 2002
and consequent order of the S.D.O. dated
29.11.2002 nodding in approval the said
order wear the taint of having been passed
without jurisdiction and the same militate
against the principles of natural justice.
The learned Counsel further submitted
that
the
competent
authority
to
award/settle Patta is the Sub Divisional
Officer and once the has been executed,
even the Sub Divisional Officer is not
competent to interfere in the matter for reauctioning of the fisheries rights. Sri Anuj
Kumar, learned Counsel appearing for the
Gaon Sabha canvassed his contentions in
vindication of the order of Tahsildar and
the learned Standing counsel put weight
to the contentions made by the learned
Counsel appearing for the Gaon Sabha.
When they were confronted with the
questions as to how the order dated
26.11.2002 was passed without canceling
Patta executed in favour of the petitioner
post-fixed with the approval of the S.D.O.
and further as to how the order was
passed exparte behind the back of the
petitioner, both the counsel could not
furnish adequate reply in vindication of
the orders impugned herein.

4. It is borne out from the record that
28.11.2002 had been fixed in the notice
issued by Tahsildar on 20.11.2002 for
appearance and hearing and before the
date fixed, the authorities made the order
dated
26.11.2002
exparte
for
reauctioning the pond/tank for fisheries
rights without allowing the petitioner to
have his say on the date fixed in response
to the notice. It is worthy of notice that
there is nothing on the record nor any
material has been brought on record in
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2 All] Shiv Poojan Prasad V. District Magistrate, Chandauli and others
411
vindication of the impugned orders, and
in the circumstances, conclusion is
irresistible that the impugned order has
been passed without giving opportunity of
hearing and in breach of the principles of
natural justice and thus the impugned
orders are vitiated and cannot be sustained
in law. It brooks no dispute that it is the
Collector who is clothed with the power
to cancel Patta and since the Patta in
favour of the petitioner had been executed
validly post-fixed with the approval of the
Sub Divisional Officer, the same was not
cancelled before ordering re-auction of
fisheries rights. The necessary corollary is
that after the settlement of Patta with
approval of the Sub Divisional Officer
affixed thereon, a right had come to be
vested in the petitioner. If the District
Magistrate had received any complaint
about manipulations in the proceeding of
auction or any irregularity whatsoever, he
was under a duty to set a foot appropriate
enquiry or to pass appropriate orders after
affording opportunity of hearing to a
person in whose favour Patta had been
executed
and
no
cancellation
of
Patta/auction finally settled in favour of a
person or direction for re-auction merely
on the basis of a complaint could be
made. It is well settled that (decision of
administrative or quasi judicial body
affecting vested rights or interest of
individual could not be altered without
affording opportunity of hearing. When
there is an obligation to adopt the judicial
approach and comply with the basic
requirements of justice, principles of Audi
Alteram Partem have to be observed.) (In
the instant case, the function of awarding
Patta is a statutory function under the U.P.
Zamindari Abolition and Land Reforms
Act and it is too patent to be ignored that
the District Magistrate made direction of
re-auctioning the fisheries rights without
hearing the petitioner in whose favour a
right had come to be vested and by this
reckoning the principles of natural justice
have not been observed in compliance
occasioning infringement of Art. 14 of the
Constitution). It is quite obvious from the
record that the District Magistrate never
issued any notice nor gave opportunity of
hearing before passing the order dated
26.11.2002 and the order has been made
exparte. In the light of the above facts as
the Patta executed in favour of the
petitioner is still intact in law and the
impugned orders are liable to be quashed.
In the facts and circumstances of the case,
it would be appropriate to remit the matter
to the Collector with the direction to
decide the application filed by the
respondent no. 4 in accordance with law.
The question that has to be put into
forefront
for
consideration
and
adjudication by the Collector is whether
Patta executed in favour of the petitioner
could be cancelled on the allegations
made in the application filed by the
respondent no.4 and secondly whether
once the auction has attained finality, the
matter could be reopened for re-auction at
subsequent stage after confirmation of
auction and after the Patta had been
executed in favour of the petitioner,
merely on the ground that a third person
has made higher offer for fisheries rights.
Besides, he will also go into the question
whether the auction had taken place in
accordance with law and procedures
prescribed. The above questions shall be
traversed upon and answered as early as
possible. It needs hardly be said that the
Collector who is the appropriate authority
in the matter of cancellation of Patta, will
afford opportunity of hearing to all
concerned on the application made by the
respondent no. 4 and pass appropriate
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
412
orders in the light of the direction
embodied in this judgment.

5. In the result, the petition succeeds
and is allowed. The impugned order dated
26.11.2002 and consequential order dated
29.11.2002 are quashed. The matter is
remitted to the Collector to adjudicate
upon the controversy in the light of the
direction afore stated.
---------