- (1.) BRIJESH Kumar, J. The petitioner is aggrieved by order dated 22-12-76 passed by the prescribed authority, regulated area, Bareilly, under Section 10 of U. P. Regulation of Building Operation Act, 1958. A copy of the aforesaid order has been filed as Annexure-4 to the writ petition. The petitioner aggrieved by the said order moved application for being given opportunity to file objections but having not obtained any favourable order preferred an appeal as well as revision before the Commissioner, Bareilly Division and the State Government which were also dismissed with observations that the orders had been passed after hearing the petitioner; hence no interference in the matter was called for.
(2.) I have heard Sri R. N. Tilhari, learned counsel for the petitioner and the learned State Counsel. On behalf of the petitioner it has been submitted that at no stage the matter has been considered on merits by any of the three authorities. It is also submitted that adequate opportunity to file objections and to get the matter decided on merits was not made available to the petitioner. This contention, however, is refuted by the learned State counsel who has urged, referring to the averments made in the counter affidavit as well as in the orders that it is evident that the petitioner was afforded adequate opportunity of hearing. Hence, the impugned orders cannot be challenged on that ground. It is, therefore, to be seen as to whether the order was passed after hearing the petitions as held by the authorities on merits or not. This can very well be deciphered from looking into the impugned orders. The first order dated 22-12-76 passed by the prescribed authority is contained in Annexure-4 to the writ petition. It refers to the notice given to the petitioner under Section 10 of the U. P. Regulation of Building Operation Act based on some report of the Junior Engineer. It is mentioned in the order that the petitioner despite the service of notice had preferred no objection nor was present. Hence, it is to be taken that he has nothing to say in reply to the show cause notice. Hence the notice under Section 10 of the U. P. Regulation of Building Operation Act was con firmed and the petitioner was required to, demolish unauthorised construction. The petitioner, it appears, thereafter moved an application dated 7-2-1977, a copy of which has been filed as Annexure-5 to the writ petition in which it was said that it was due to some misunderstanding as indicated in the application that the objections could not be filed and a prayer was made for setting aside the ex parte order and it was further prayed that the petitioner be allowed to file objections. On the margin of the same application, there is an order passed by the authority dated 17-2-77 which says that the petitioner had not filed any objections despite notice and the order also mentions that the petitioner informed that permission before construction was not obtained by it. That being the position, the application was rejected. It is to be noticed that the petitioner had made a prayer for being allowed to file objections. Naturally, the objections would be other than what was mentioned in the applica tion. It is difficult to guess as to what objections the petitioner wanted to take despite the non-denial of the fact that no permission before construction was taken. On behalf of the petitioner it is submitted that one of the grounds raised in the revision was that the provisions of the U. P. Regulation of Building Operation Act were not applicable to the premises. So it is quite evident that the petitioner may have some valid objections to be raised. As to whether they were sustainable or not, could be decided only after the petitioner was allowed to raise those objections and thereafter the same had been considered on merits by the authority. May be that the petitioner might have thought to raise some other objections as well. Therefore, what is clear from the order is, that despite the prayer made for allowing him to file objections, the application was rejected. This order has been taken to be an order having been passed after hearing the petitioner. It would be evident from the order passed by the Commissioners, Bareilly Division on the appeal filed by the petitioner. The appellate order is contained In Annexure-6 to the writ petition. It mentioned in Para 2 of the order that the petitioner was heard on his application dated 7-2-77 and thereafter final order was passed. It is surprising as to how it could be construed that hearing was provided to the petitioner once the prayer made for allowing him to make objections itself was rejected. Para 3 of the order, however, says that this was reasonable opportunity but the petitioner submitted that it was never made known about the report of the Junior Engineer. I will, however, not go into that aspect of the matter but the fact remains that the order passed on 17-2-77 on the application dated 7-2-77 moved by the petitioner can hardly be said to be an order passed after hearing the petitioner. The revisional court also seems to have fell into the same error which would be evident from the order passed by the State Government dated 22-1-80 as contained in Annexure 8 to the writ petition. It is very specifically mentioned in the order that the petitioner was given notice and the order was passed after hearing the petitioner. The kind of hearing which was afforded to the petitioner has been indicated and dealt with in the earlier part of the order Turning down a request, to allow a party to file objections can in no circumstances amount to hearing the party. The mere fact that plan was not sanctioned itself was taken to be sufficient to pass the order completely losing sight of the fact that there could still be objections, like one of which is indicated above, about the applicability of the provisions of the Act itself. Had it been the case that once an order has been passed and the petitioner hid failed to respond to the notice served upon him no further opportunity was to be given, it would have been entirely a different matter; but refusal to afford him opportunity of filing objections on his application and treating it as hearing and saying that finally the order was passed after hearing the petitioner is an incorrect conclusion on the face of it, which is not borne out in any manner. That being the position, the orders passed by the three authorities are not sustainable.
(3.) IN the result, the writ petition is allowed and the three orders as contained in Annexures 4, 6 and 8 and the order passed on the margin of the application dated 17-2-77, that is, Annexure-5 to the writ petition, are set aside and the matter is remanded to the prescribed authority, opposite party No. 3 before whom the petitioner shall file his objections to the notice given to the petitioner under Section 10 of U. P. Regulation of Building Operation Act alongwith a certified copy of this order within one month from today. The objections, if filed, shall be disposed of on merits after affording opportunity of hearing to the petitioner. There would, how ever, be no order as to costs. Petition allowed. .;