HABIB BUX Vs. STATE OF U P

JUDGEMENT

(1.) AN application was made by the Petitioner under Section 6 of the U.P. Roadside Land Control Act for permission to make certain constructions. This application was dismissed by the Collector, Etawah Respondent No. 2, on 20th August, 1971. Against this order the Petitioner filed an appeal before the State Government on 28th December, 1971, under Section 7 of the said Act. The State Government dismissed the appeal by an order dated 16th November, 1972, communication whereof was sent to the Petitioner by a letter, copy whereof has been filed as annexure 'B' to the petition. A perusal of Annexure 'B' indicates that the appeal was dismissed on the ground that it was barred by time. Towards the end it was also stated that since the Collector, Etawah, had passed final orders within three months of the making of the application, the order was valid. Aggrieved the Petitioner has instituted this writ petition with a prayer to quash the aforesaid orders.

(2.) IT was urged by counsel for the Petitioner that there was sufficient cause for the delay in filing the appeal before the State Government and an affidavit explaining the delay was filed along with the memo of appeal but the State Government appears o have ignored the said affidavit completely. A copy of the affidavit which is said to have been filed with the memo of appeal has been attached as annexure 'C' to the writ petition. It has further been stated in the writ petition that the appeal was dismissed by the State Government without giving the Petitioner any opportunity of hearing. A counter -affidavit has been filed by the Office Superintendent of the Collectorate, Etawah. In the said counter -affidavit, however, ignorance has been pleaded in regard to the filing of an affidavit along with the memo of appeal before the State Government as also about the allegation made in the writ petition that no opportunity of hearing was given to the Petitioner by the State Government before dismissing the appeal. It has been stated in the said counter -affidavit that the relevant paragraphs in the writ petition in this behalf 'relate to the State Government and as such need no reply'. No counter -affidavit on behalf of the State Government has, however, been filed controverting the material allegations. So far as the order of the State Government is concerned, it does not indicate that the affidavit filed by the Petitioner along with the memo of appeal was even considered before dismissing the appeal as time barred. The fact that the Collector had passed orders on the application made by the Petitioner within three months had hardly any bearing on the validity of the order of the Collector. Sub -section (6) of Section 6 of the Act contemplates that if at the expiration of a period of three months after an application for permission under Sub -section (1) has been made to the Collector no order in writing has been passed by the Collector permission shall be deemed to have been given without the imposition of any conditions. The mere fact that the Collector passed an order within three months will not obviate the necessity of considering the validity of the order on merits if an appeal was filed before the State Government against that order. For all these reasons we are of the opinion that the order of the State Government dated 16th November, 1972 cannot be sustained.